INTRODUCTION

Marriage, as a social institution, is profoundly ingrained in the cultural and religious traditions of India. It’s not just a joining of two people it’s binding together families and all the commitments and expectations of society too. When a deep rift splits a marriage to the core, the legal machine steps in to sort things out so that it’s fair for everyone involved. Divorce, formerly stigmatised, has emerged as a recognised phenomenon in Indian culture, demanding a comprehensive legal structure to manage related concerns, notably regarding support and custody.

India has a legal structure that works well because of its mix of diverse religiosity and secular beliefs. This system lets religions handle rules about marriage and divorce based on what their traditions say. The Hindu Marriage Act of 1955[1] regulates the marriage rights of Hindus, whilst Muslims adhere to personal rules based on the Quran, Hadith, and other sources of Islamic jurisprudence. These laws spell out reasons for splitting up and outline steps for both separation support and custody matters. The judiciary’s interpretation of these clauses is essential in reconciling religious ideals with constitutional requirements.

Under Hindu law, marriage is historically viewed as a sacred connection, while current legislative amendments under the Hindu Marriage Act, 1955 permit divorce under specific grounds, including cruelty, abandonment, and adultery. Conversely, Islamic law, grounded in Sharia principles, permits divorce through many mechanisms, including Talaq (unilateral repudiation by the husband), Khula (divorce initiated by the woman), and Mubarat (divorce by mutual consent). The legal framework governing divorce among Muslims has undergone considerable judicial examination, notably following the Supreme Court’s involvement in instances like ShayaraBano v. Union of India (2017)[2], resulting in the annulment of instant Triple Talaq.

One of the most controversial components of divorce proceedings is maintenance, which refers to the financial assistance paid to a spouse (typically the woman) following separation. The basic purpose of maintenance legislation is to prevent the economic poverty of the dependent spouse and guarantee a respectable level of living.

For Hindus, the Hindu Adoption and Maintenance Act, 1956, together with Section 144 of the Bhartiya Nagrik Suraksha Sanhita (BNSS), gives for the right to maintenance. Section 144 of the Women’s Protection Code (WPC) applies to all women whether they are of one faith or another and requires a husband to support financially if his wife is unable to support herself. The Supreme Court has generally maintained that maintenance should be equitable, fair, and reasonable, taking into consideration the husband’s financial condition and the wife’s requirements.

Muslim women’s claim to maintenance has been subject to much legal controversy, notably following the landmark verdict in Mohd. Ahmed Khan v. Shah Bano Begum (1985)[3]. The Supreme Court ruled that Muslim women, like women of other religions, could claim maintenance under Section 144 of the Bhartiya Nagrik Suraksha Sanhita (BNSS), overriding the restrictive interpretation of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which limited maintenance to the Iddat period (a period of three months following divorce). However, later some cases came out emphasizing that Muslim women who feel entitled to have reasonable and equitable support after the waiting period for periods post divorce deserve more enforcement against clear equality and fairness ideals found in the Constitution. For example, a case in 2001 involving Daniel Latifi[4]versus India.

Custody battles sometimes become very delicate and complex in divorce proceedings, as courts are expected to prioritize the welfare of the child over the individual rights of parents. In India, custody disputes for children are usually handled through Guardians and Wards Act of 1890, which is a rule that applies everywhere basically, along with specific religious rules.

For Hindus, there’s a law called the Hindu Minority and Guardians Act of 1956 [5]that says father has a natural right to live with and look after the child, but the mother has stronger claim for custody if the child is less than five years old. This reflects the venerable history and balanced nature of rights and privileges within Hindu families. Courthouses have been pretty flexible about this stuff, taking as their touchstone that ultimately what matters most is what’s best for the kid. Once in a case called Gita Hariharan v Reserve Bank of India[6] from 1999, the Supreme Court held some important rulings. They decided that ‘natural guardian’ needs to be read from a point of equality regardless of gender. That meant that mothers can show they also have the legal ability to be guardians of those little ones when needed.

Muslim law maintains the theory of Hizanat, under which the mother has the predominant claim to custody of young children, especially females, up to a specific age.[7] However, the father retains guardianship rights, including authority over the child’s possessions. Courts have stepped in many a time to intervene when personal laws impose tough and harsh penalties that really cause kids more harm than good. The Supreme Court has underlined in many judgements that the wellbeing of the child is of vital significance, independent of religion personal rules.

Indian courts have played a revolutionary role in interpreting and administering maintenance and custody rules, often reading them in light of constitutional considerations. Judges have worked hard to blend personal laws with rights entrenched into the Constitution folks and rights like equality for Article 14 and life and human dignity in Article 21.[8]

In ShayaraBano v. Union of India (2017), the Supreme Court highlighted that no Muslim woman should be financially abandoned after a divorce. Also, in Kusum Sharma v. Mahinder Kumar Sharma (2020),[9]the Delhi High Court prescribed a comprehensive framework for determining the maintenance amount which, as the husband’s financial means and lifestyle, as well as the wife’s employability, were all adequately considered.

[1] Hindu Marriage Act, 1955, Act No. 25 of 1955, ss. 13, 24–26.

[2](2017) 9 SCC 1: AIR 2017 SC 4609.

[3]Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945.

[4]Danial Latifi v. Union of India, (2001) 7 SCC 740.

[5] Hindu Minority and Guardianship Act, 1956, Act No. 32 of 1956, s. 6.

[6]Githa Hariharan v. RBI, AIR 1999 SC 1149.

[7] Muslim Personal Law (Shariat) Application Act, 1937, Act No. 26 of 1937.

[8] Constitution of India, arts. 14, 15, 21 – Right to equality, non-discrimination, and life with dignity.

[9]Kusum Sharma v. Mahinder Kumar Sharma, (2020) SCC OnLine Del 6536.