DIVORCE: SOLUTION TO A THREAT
This article is written by Bhoomika Khaneja, a third year B.A LLB(HONS) student of Ideal Institute of Management and Technology (Affiliated to Guru Gobind Singh Indraprastha University), Delhi.
In the 21st century the society has undergone a change, for better or worse cannot really say. Before the mid 70’s divorce was rare or was not even a thing in the Indian culture. Marriage is integral part of Indian culture. Marriage in India is regarded as a social institution and not merely transaction between two individuals. Marriage means union of man and woman which arises from free consent of each spouse. There is a social interest for preservation and protection of marriage.
Divorce as a social problem
Divorce is a legal dissolution of marriage by the court or other competent body. In other words it means ending a marriage. This means that married couple cancels their responsibilities and legal duties of marriage by terminating it.
Earlier the divorce was considered as a taboo in the Indian society. But as the time passed by, it began to be accepted as a most common practice. The divorce rates among young couples are increasing progressively. Nowadays, the society accepts divorce easily and suggests it as a solution to problems faced in a marital relationship leading to marriages at a risk. Out of every ten marriages at least seven marriages are divorced. Divorce not only puts marriage at a stake but also leaves a huge impact on the minds of children.
Nowadays, many people consider marriage as a contract and moreover like a social institution. Divorce is looked as a solution to get rid of toxic relationship by many.
The various reasons that can be seen for the divorce are abuse, financial instability, arguments, sexual infidelity, inequality within the relationship and many more. So, ultimately divorce has become voice of many vulnerable people.
Divorce Laws in India
Since India is the land of various religious communities, so there are different laws for the dissolution of marriage for each community. The divorce procedure too varies for each community. All Hindus, Buddhists, Sikhs and Jains can seek divorce under The Hindu Marriage Act, 1955 according to divorce laws in India. The Muslim, Christian and Parsi communities on the other hand have their own laws governing the marriage and divorce. Spouses belonging to different communities and caste can seek divorce under The Special Marriage Act, 1956. There is The Foreign Marriage Act, 1969 dealing with divorce laws in marriage where either spouse belongs to other nationality.
Categorisation of Divorce Laws:
A) The various forms of divorce under The Hindu Marriage Act, 1955 are:
1. Either spouse may file for divorce without the consent of the other.
2. Grounds available to wife for divorce
3. Divorce by mutual consent
Either spouse may file for divorce without the consent of the other:
The various grounds for divorce are given under Section-13(1) of The Hindu Marriage Act, 1955:
1. Adultery- The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. Such sexual intercourse must be consensual. Burden of proof is on petitioner to prove that the respondent had committed adultery beyond reasonable doubt.
2. Cruelty- After solemnisation of marriage, the respondent treated the petitioner with cruelty. It is behaviour that causes physical and mental harm to another spouse whether intentionally or not. It can be physical or mental.
Case Law: Russel v Russel (1997), In this case the honourable court defined cruelty as conduct of such character that has caused danger to life or health, bodily or mental and gives rise to reasonable apprehension of such danger.
3. Desertion- It is the abandonment of one spouse by the other without any reasonable cause and without consent of the other. Guilty party can desert his/her relation. Burden of proof is always on the petitioner to prove the essentials elements of desertion.
4. Conversion to another religion- It is the ground for divorce and judicial separation. In case either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.
5. Unsound Mind- If the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from the couple to stay together. Mental disorder means mental illness or incomplete development of mind.
6. Leprosy- In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.
7. Veneral Disease- If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.
8. Renunciation of world- A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.
9. Not being heard alive –If the person is not seen or heard alive for period of seven years or there is presumption of his death, then the other spouse can file for divorce.
Grounds available to wife for divorce
In addition to the above mentioned grounds, there are various additional grounds for divorce available to wife are given under Section-13(2) of The Hindu Marriage Act, 1955:
1. If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek for a divorce.
2. Divorce petition is presented to the husband if since solemnisation of marriage he is guilty of rape, sodomy and bestiality. Man is not guilty of raping his own wife unless she is less than fifteen years of age.
3. If there is no co-habitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce.
4. Wife is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age.
Divorce by mutual consent
It is given under Section-13(B) of The Hindu Marriage Act, 1955:
In this the decree of divorce is presented before the district court by both the parties to marriage together. It is presented on the ground that they have been living separately for the period of one year or more and not have been able to live together. They have mutually agreed to get their marriage dissolved.
After presentation of petition, the parties have to wait for six months and not later than eighteen months. After expiry of time, parties move the motion to the court for the decree of divorce dissolving the marriage. Parties are free to withdraw their petition anytime.
B) Divorce under the Dissolution of Muslim Marriage act, 1939 is:
Under Muslim Law, the marriage is dissolved either by the death of husband or wife or by divorce. After death of wife, husband may remarry immediately. Husband can dissolve marriage tie at his will. Divorce can take place by mutual consent or agreement. Wife cannot divorce herself from husband without his consent. Marriage gets dissolved by judicial separation under the Dissolution of Muslim Marriage act, 1939.
Section-2 of Dissolution of Muslim Marriage act, 1939 provides the grounds for divorce by wife. These are:
1. Husband has neglected or failed to provide maintenance for period of two years to his wife.
2. The husband’s whereabouts are unknown for a period of four years.
3. If husband is imprisoned for period of seven years or upwards.
4. Husband has failed to perform marital obligation for period of three years.
5. Husband is impotent at time of marriage and continues to be so.
6. Cruelty by the husband.
7. If the girl is married before fifteen and decides to end the relationship before she turns eighteen.
C) Grounds for divorce under the Indian Divorce Act, 1869 are:
Either the husband or wife can file the petition for divorce on the ground that:
- Has committed adultery.
- Has converted his religion.
- Has been of unsound mind for two years continuously before the filing of the petition.
- Has been diagnosed with leprosy for a period of at least two years before the filing of the petition.
- Has been suffering from some venereal communicable disease for not less than two years.
- Has not been heard of for the past seven years from the persons who would have heard of the respondent if he had been alive.
- Has refused to consummate the marriage.
- Has deserted the petitioners for at least two years immediately preceding the presentation of petition.
- Has treated the petitioner with cruelty.
Divorce is most traumatic part in one’s life and hence it becomes essential for the parties to the marriage to know their rights and duties when divorce suit is filed. Also it is important for them to know the valid grounds for divorce as given under different acts.