The article is written by Shreya Pandey from Banasthali University, Jaipur. The article deals with the analysis of divorce as legal aid for women in India.
Table of Contents
Marriage is a legally and socially recognized union between a man and a woman which brings them into a legal relationship where they can cohabit and make a family. Marriage is a process that binds a man and a woman in a relationship in which they voluntarily come and make a contract to be with each other as their spouse. It is considered to be a spiritual process that binds two-persons in a relationship for all their lives. In marriage, the man and woman become husband and wife. They get several rights against each other and also they can make children to form their own family. When a man and woman marry each other, they are considered to be with each other till the end of their lives. But, sometimes due to many reasons there comes a situation where the couples cannot live with each other. Therefore, there comes a need to dissolve their marriage. Divorce is a way through which a marriage can be dissolved. It is a misfortune for any couple who comes to a situation when they need to dissolve their marriage.
Divorce laws in India
India is a land of various religious communities that have their own marriage laws. The divorce procedure also varies depending upon their community. The scope of the Hindu Marriage Act, 1955 involves Hindus as well as Buddhists, Sikhs, and Jains under its realm where they can seek divorce. The Muslims, Christians, and Parsis are governed by their personal laws. Couples belonging to different communities can seek divorce under the Special Marriage Act, 1956. In a case where either party belongs to any nationality other than Indian then if the couple wants to seek for divorce then he can claim under Foreign Marriage Act, 1969. The government has passed many Acts from time to time to make divorce procedures more progressive concerning gender affairs and other such sensitive issues.
Divorce can be broadly categorized into three categories:
- Divorce by Mutual Consent
- Contested Divorce
- Void Marriages
- Divorce by Mutual Consent- When both the couples think that they cannot continue together with each other after trying many times and it would be better that they part their ways then the parties can seek divorce by mutual consent. It is the simplest way to dissolve their marriage peacefully. The husband and wife need to be in consensus on two essential points. The first is on alimony or maintenance. The wife and husband can themselves come into consensus whether the wife will be given maintenance and if she will be given then the amount of maintenance is also discussed and agreed by both the parties. The second point is child custody. If the couple is having a child then the issue comes that who will get the custody of the child. This issue shall also be resolved between the parties claiming divorce by mutual consent.
- Contested Divorce- Either party to the marriage can file a petition before the Court to dissolve the marriage on certain grounds. Laws of different communities have defined different grounds under which they can claim a divorce.
- Void marriages- That marriages which are void ab initio are considered as void marriages in which either of the party can seek divorce by stating the fact due to which the marriage is void.
Grounds for divorce for women
There are different grounds for divorce in different community laws. Mostly the grounds for divorce are available to both, i.e., the wife and husband. But, certain specific grounds are only available to women (wife) to seek divorce against her husband. It means that the grounds available under different laws are provided to both the husband and wife but few additional grounds are also specified within the laws that only a wife can claim against the husband.
Divorce under the Hindu Marriage Act
Any Hindu, Christian, or Parsi couple can seek divorce under The Hindu Marriage Act, 1955. Either party can claim divorce before a Court under Section 13 of the Hindu Marriage Act, 1955. Section 13(1) provides for certain grounds for divorce which either of the parties can claim. The grounds under this subsection are- Adultery, Cruelty, Desertion, Conversion, Unsoundness of mind, Venereal disease, leprosy, renunciation, and presumption of death. Section 13(2) provides for grounds that only a wife can claim against her husband. The grounds under Section 13(2) are:
- Husband having more than one wife living- If the husband has more than one wife living, then the wife can claim for divorce under Section 13(2)(i) of the Hindu Marriage Act, 1955. The essential ingredient under this provision is that the other wife must be alive. If the first wife is alive during the commencement of the second marriage then the wife can claim for divorce and it is not necessary to provide direct evidence to prove it, it can be proved through other facts as well.
- Rape, sodomy, or bestiality- If the husband commits rape against his wife then she can claim divorce under Sec 13(2)(ii) of the Hindu Marriage Act, 1955. Rape itself is a criminal offence defined under Section 375 of the Indian Penal Code. If a husband is found guilty of committing rape then the wife is entitled to claim divorce against him.
Sodomy is anal or oral sex between people of same-sex or with any animal. This can also be a ground for divorce. Bestiality means sexual intercourse of a person against a normal course of nature. Sexual intercourse of a human being with any animal. Any cross-species sexual activity is considered as bestiality and if the husband is indulged in any such activity then the wife can claim divorce under Section 12(2)(ii). If any such claim is made by the wife then it is the burden on the wife to prove that the husband is indulged in such activity whether through witnesses or facts or admission by the husband himself.
- Decree or order of maintenance- When an order or decree of maintenance has been passed against the husband under Section 125 of CrPC, 1973 or Section 18 of Hindu Adoption and Maintenance Act, 1956 respectively, then the wife is entitled to claim divorce against the husband. The two essential ingredients are to be proved before getting the divorce under this ground:
- She is living apart from her husband, and
- The cohabitation between her and her husband have been paused from the passing of such order or decree and since then it has not been resumed for at least one year.
- Marriage before attaining fifteen years of age- If a marriage has been solemnized before attainment of fifteen years of age of the wife then, the wife is entitled to file a petition to dissolve the marriage after attaining eighteen years of age. The condition essential to dissolve the marriage under this ground is that the wife must repudiate her marriage after attaining fifteen years of age but before attainment of eighteen years of age. The repudiation may be either expressed through words spoken or written, or implied conduct of the wife. Implied repudiation can be considered from the fact that the wife left the husband and denied from coming back to the husband’s house.
Divorce by Muslim women
A Muslim woman can take divorce in three ways:
- Talaaq-i-tafweez- The Muslim husband delegates his power of pronouncing divorce to his wife whether temporarily, permanently, absolutely, or conditionally. The right to dissolve the marriage is given to the wife by her husband. This type of divorce is practised in both Shias and Sunnis.
- Lian- A Muslim woman can claim divorce if her husband levels false charges of unchastity or adultery. Such false charges amount to character assassination of the wife. Therefore, the wife gets the right to claim divorce against her husband. The charges made by the husband must be voluntary and aggressive.
- By Dissolution of Muslim Marriages Act, 1939- The Dissolution of Muslim Marriages Act, 1939 was legislated to make provisions on the dissolution of marriage by women married under Muslim Law. The Act relates to the suit for dissolution of marriage by women who have married under Muslim Laws. Section 2 of the Act provides for the grounds on which a Muslim wife can claim divorce against her Muslim husband. Those grounds are:
- The whereabouts of the husband have not been known for four years of the time period- When the husband is missing for about four years then the wife can file a petition seeking a divorce. It is deemed that the husband is missing when neither the wife nor any other person is expected to know the whereabouts of the husband.
- The husband has neglected or refused to maintain the wife for about two years- Husband is legally obliged to maintain his wife, and if he fails or refuses to do so, then the wife gets a right to claim divorce from her husband.
- The husband has been sentenced to imprisonment for seven years or more- When the husband is sentenced to imprisonment for seven years or more and the sentence becomes final then the wife gets the right to claim divorce from her husband.
- The husband has failed to perform his marital obligations without any reasonable cause for about three years- The husband’s marital obligations are defined under this Act and if the husband fails to perform those obligations without any reasonable cause then the wife gets the right to claim judicial separation from her husband if the husband fails to comply those obligations for a period of three years.
- The husband treats her with cruelty- A woman can claim divorce if-
- He habitually assaults her whether physically or not due to which wife’s life becomes miserable.
- He associates his wife to a woman of ill-repute.
- He forces his wife to lead an immoral life.
- He disposes the property of his wife or prevents her from using her legal rights on the property.
- He does not let her wife profess or practise her religious beliefs.
- When the husband has more than one wife then he does not treat all her wives equally.
- He was impotent during the solemnization of marriage and continues to be so.
- He is suffering from a venereal disease, leprosy, or is insane from about 2 years.
- The marriage was solemnized before attainment of her fifteen years of her age and she has repudiated her marriage before attaining eighteen years of age.
- Any other ground which is considered valid under Muslim Law.
A woman is still considered as a weaker section of society and therefore there are many ill-treatments done on the woman which she suffers without telling about it to anyone. A husband considers his wife as his property and behaves in any manner he wants to. Therefore, it has become necessary for the legislature to legislate such laws that give power to women. With the advancement of time, the cruelty or ill-treatment of women is also increasing especially in a country like India.
It is important to give women special rights under which they can claim their own freedom from any such relation in which they are not valued or where they are ill-treated. Special provisions for women claiming divorce is a step to give them additional powers in their hand which they can exercise when any wrong, immoral, or inhuman treatment is being done on them. Still, it is not of much use as the women in villages or rural areas follow a taboo that it is their destiny that they are living such a life and the person they are married to has all the rights to treat her in any way he wants. To help women to stand for themselves and empower them it is very necessary to change the mindset of the social thinking man as the sole owner of the life of the women.
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