Legal

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This Blog is written by Anvaya Singh from Amity Law School, Noida. Edited by Ravikiran Shukre.

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INTRODUCTION:

India was officially declared to be a secular country in 1976 after the word ‘secular’ was added into the preamble. The main reason for this action was that, since, our country has a vast culture and many different people who belong to different religion and different culture reside in our country for a long time so, it would have been unfair for the people belonging to other religion if our country would have been biased towards a singular religion or culture just like many other countries. It would have led to discrimination, violence, oppression of the people belonging to other religion and other numerous concerns would have arose.

So, to avoid all this, it was decided to make our country secular. Since, our country has a vast majority of people who practice various religions other than Hinduism and belong to different cultures like Christianity, Islam, Buddhism and others.

People participate in the holy ritual of marriage in accordance with the traditions, ceremonies and rituals that is there in their religion and/or culture and is codified with by their statutory personal laws. Therefore, as a result, all the matters related to matrimony which not only includes the laws regarding marriage but also covers matters related to divorce, maintenance etc. Are governed by the personal laws of that particular party depending entirely on their religion and culture. These laws are codified by statute in most of the cases and they are as follows –

• The Hindu’s laws are governed by The Hindu Marriage Act, 1955.

• The laws amongst Muslims in regards with Marriage is more like a Contract.

• The Christian’s laws are governed by The Indian Marriage Act, 1872 and the Divorce Act, 1869.

• The Parsi’s laws are governed by The Parsi Marriage and Divorce Act 1936.

In addition to all of these codes, The Special Marriage Act, 1954 applies to all the parties of every religion and there are no exceptions. This is a civil legislation and parties from all religions, culture, caste can choose to marry under this code. Also, in these cases, the divorce would also be governed by the same code i.e. The Special Marriage Act, 1954.

Although, people who get married try their best to make things work. But sometimes, not everything remains in their hands. Divorce is one of the most difficult phases of life that a person can go through. It is rather a very delicate matter depending on the religion as in Hindus, marriage is considered as sacrament and is an unbreakable bond which the people believe that lasts whole eternity and it cannot be broken whereas, other religions like in Islam and Christianity, there are various provisions regarding divorce which also include certain restrictions like in Islam, they have to wait for a few days just to make sure that the girl is not pregnant. Also, if the girl is menstruating then the divorce can’t take place during that time.

SIGNIFICANCE OF THE DEVELOPMENT:

Divorce is not seen as a welcome move by all the religions in the Indian society. However, due to various reasons, law has always welcomed the concept of separation or divorce between couples. Whether it is domestic violence, adultery or even mutual consent; law has been impartial, just and non-judgemental as much as possible when deciding these matters. One of the most important legal effects of divorce in India is that the husband becomes liable to pay for maintenance of the wife during and after the divorce process if she is not able to pay for the undergoing proceedings or is not able to maintain herself after the divorce is finalized. Every day the courts are bettering the personal laws regarding marriage and divorce, especially for strengthening the status of women in the society.

IMPACT:

Divorces take an excessive emotional toll on not only the couple who are getting separated but also, their families. Sometimes, it is for the best that they get a divorce so that they can move on and try to live a better life and sometimes, it is the vice versa and people find it hard to move on which makes their and their family member’s lives hard and it might leave a scar or two for their whole lives. But in cases where there are children involved, the matter becomes more delicate because not only the decision has to be made for the betterment of the couple but also for the future of the children as well. Also, in these cases, it’s the children who suffer more than their parents as they are unable to cope with it very well and suffer a lot worse emotional trauma.

Now, the laws are being amended regularly according to what the Legislature and the Judiciary sees fit. They are amended in such a way as to benefit the people the most and minimise the impact of divorce on the parties involved. According to the laws in Hindus, the court gives the couple several advices and signs them up for marriage counselling where the experts try to resolve the problems of the couple and the couple is given the advice to live together for a period of at least 6 months. Sometimes these things work but most of the times they fail to achieve the goal.

STATUTORY PROVISIONS:

The Hindu Marriage Act, 1955 was enacted with the purpose of providing a uniform law in case of marriage to all the Sections of Hindus and other religion that are included in this Act. It not only codified the marriage law between Hindus and introduced provisions related to divorce and separation.

Section 2 of the Act tells about the applicability of the Act and according to it, the Act is applicable to all the ‘Sections of Hindu (Vaishaiva, a Lingayat or a follower of the Brahmo, Prarthana, Arya Samaj) and to any person who is a Sikh, Buddhist, or Jain by religion (in accordance with Article 44 of the Constitution of India).’ It is also applicable to all those persons who are ‘the permanent residents of India and are not Muslims, Jews, Christians, or Parsis by religion.’

• Section 13 of the Hindu Marriage Act, 1955

Section 13 (1) –

This provision states the various grounds on which petition for divorce can be filed. This section allows a husband or a wife to file a petition for divorce, if the other party has committed the following acts as mentioned below after the solemnization of marriage, also categorized as ‘Divorce without mutual consent’:

1. Cruelty –

Cruelty may be both physical or mental, if one of the party feels that the conduct of the other party towards him or her is likely to cause some mental or physical injury, then, it is a sufficient cause which is enough to seek divorce.

 2. Adultery –

In India, earlier, adultery was considered as a criminal offence under the Indian Penal Code (I.P.C.) but in a recent judgement passed by our honourable Supreme Court, adultery has been decriminalised. But it can still be used as a ground for divorce from a spouse who has committed adultery.

3. Conversion –

If a spouse converts to another religion, then that serves as a valid reason to claim divorce from the other. This does not require any minimum time before claiming for divorce.

4. Desertion –

If one of the spouse deserts the other one without giving any reason that may be considered as reasonable then, it is a solid ground to file a divorce and obtain the same from the other spouse. Under Hindu law, the dissertation must have been for at least two years for the party to file for divorce, but under Christian law, there is no such time limit and a petition of divorce can be filed by just simply claiming that the other spouse has committed desertion.

5. Mental Disorder –

If one of the spouses is unable to perform the normal duties that he or she is required to perform and that too because of any type of mental illness or disorder then, in that case, divorce can be filed and obtained from the other spouse. However, if the mental illness or disorder is of such nature that it does not hamper the capabilities of the person from performing his or her duties normally, then the divorce cannot be claimed.

6. Presumption of Death –

If one of the spouse has not been heard of being alive for a minimum time period of seven years then, the spouse who hasn’t heard a single news about the other spouse being alive can seek for divorce as the courts naturally presume that the other spouse is dead after taking into consideration the time that has passed since that spouse was last heard of being alive.

7. Renunciation of the World –

If the spouse decides to renounce the world and obtains a ‘holy order’ then, the other spouse can file for divorce and obtain the same from the court. However, this renunciation must be absolute.

 8. Restitution of conjugal rights –

If the spouse has failed to comply with the decree of restitution of conjugal rights since the passing of such decree, then the other spouse can file for a divorce and obtain the same from the court.

9. Bigamy –

According to section 11 of the act, if, at the time of the marriage either of the parties had a living spouse, then divorce can be filed.

Bigamy is a matrimonial offence as well as a criminal offence. In 2009, the Law Commission suggested to make bigamy as a cognizable offence, which was accepted and included in the act. So, bigamy is considered as a cognizable, compoundable and a bail able offence.

10. The Section 13(2)(ii) of the Hindu Marriage Act, 1955, clearly states that a wife can file a petition for divorce on the grounds of the following:

1. Rape
2. Sodomy and
3. Bestiality

The term ‘rape’ has been clearly defined under the Section 375 of the Indian Penal Code (I.P.C.). The other two grounds, are namely, ‘bestiality’ and ‘sodomy’ and they are referred to as ‘unnatural offences’ and are dealt under the Section 377 of the Indian Penal Code (I.P.C.).

11. Failure of maintenance by the husband –

As per the Section 13(2)(iii) of the Act, a wife can obtain a divorce in a case under Section 18 of the ‘Hindu Adoption and Maintenance Act, 1956,’ or in a proceeding under the said Section 125 of the Code of Criminal Procedure, 1973 (CrPC) an order has been passed according to which the husband must provide maintenance to his wife in spite of the fact that she has been living apart from him and there has been no cohabitation between the parties from the date on which the decree was passed.

So, if the husband has committed any of the acts listed above, then, the wife can file for divorce.

• Special Marriage Act:

The Special Marriage Act came unto in the year of 1954. It replaced the old Act III of the year 1872. The purpose of this act is to provide the rights to have a special marriage to all the persons living in India as well as the Indians living in other foreign countries. This act provides the right to the people irrespective of the religion of either of the parties. The main objectives because of which this particular Act was enacted in order to replace the Act III, 1872 are:

1) To provide a special form of marriage in certain circumstances.

2) To provide a process in case of divorce.

To provide registration in such special marriages.

CASE LAWS:

1. Bathula Iylaiah v. Bathula Devamma[AIR (1981) AP 74]:

In this case, the Court admitted the application for repudiation of the marriage even when the repudiation was done by the girl after she attained the age of majority. The petitioner at that time didn’t knew about the enactment of the Amendment Act of 1976, so as soon as she came to know about she filed for the ratification of the marriage. The court then, solely on the basis of reasonable explanation of delay decided to admit the petition immediately.

2. Shabana Bano v Imran Khan:

In this case, the honourable Supreme Court held that a Muslim divorced woman who has no means to maintain herself is entitled to receive proper maintenance from her former husband, even after the period of iddah, she can also claim the same under the Section 125 of CrPC.

ANALYSIS:

The evolution of divorce laws over the years has been in such a way that it acts as a safeguard for those people who are suffering in their marriage. Along with that, the divorce is also allowed if it’s done by mutual consent, which is a very welcome concept in today’s world that strives for individual happiness. So, anyone who is in an unhappy marriage can always file for divorce.

Now, according to reports released by the United Nations on divorce rates around the world, India has one of the lowest share of divorces. This can be due to a number of factors, mostly because of the social stigma regarding the matter. In India, especially in small towns and villages, people try to work out the marriage to a point that it becomes very strenuous for the parties in the marriage. The main reason behind this is that unlike in the cities where the individuals are more independent, the people in small towns and villages mostly live together in a joint family. So the family and the social pressure makes it hard for them to file for separation or divorce. Due to this reason, many times the women stay in a very abusive and unhealthy marriages.

However, while the abuse rate of women is more in marriages, one cannot always presume that the men do not suffer in a divorce. But the social setting allows men in a more favourable way to bounce back and resume their normal lives. It is also easier for them to remarry without any judgment.

So, we can say that the Divorce laws have not made much difference in the divorce rates in India mainly due to the religious concepts regarding marriages that are followed by the people in Indian society. But we can surely see a rise in awareness against abusive marriages and households, making it easier for the aggrieved parties to escape from the situation if they wish to.

CONCLUSION:

While the laws have become better with time, there is a need for a better social construct that fully accepts the decision of a couple to dissolve their marriage. While marriages ending in divorce is always a sorrowful thing to witness, but at the same time there is no point to stay in a marriage if it is not happy and healthy.

The various Acts makes sure that the men and women get equal say at every step and make an independent decision about if they want to stay in the marriage or not. Whenever the personal laws become a bit unfair, the courts make sure to pass a fair and just judgement. So, the primary purpose of laws and courts in this matter is to make sure that the aggrieved parties get the justice that one deserves.

REFERENCES:

(1) Legal Effects Of Divorce In India, available at: https://www.legistify.com/blogs/view_detail/legal-effects-of-divorce-in-india/ (Last visited on 26th June, 2021)

(2) Indian Divorce Act, available at:

https://www.indiafilings.com/learn/indian-divorce-act/ (Last visited on 26th June, 2021)

(3) Divorce Law in India, available at:

https://blog.ipleaders.in/divorce-law-in-india/ (Last visited on 26th June, 2021)

(4) Getting Divorced? Know About these 3 Legal Rights, available at:

https://vakilsearch.com/blog/getting-divorced-you-should-know-about-these-3-legal-rights/ (Last visited on 26th June, 2021)

(5) Family law in India: overview, available at:

https://ca.practicallaw.thomsonreuters.com/6-581-5985?transitionType=Default&contextData=(sc.Default)#:~:text=Section%2013B%20of%20the%20Hindu,must%20present%20the%20second%20motion (Last visited on 26th June, 2021)