Divorce
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This article is written by Smaranika Sen from Kolkata Police Law Institute. This article exhaustively deals with divorce and separation in times of COVID.

Introduction

COVID-19 has created a global impact in almost all spheres of our lives. Starting from work-life to our family life, everything has been broadly affected. COVID-19 has led the entire world into a lockdown. Due to this, families have started to spend more time together than before. Previously, the families might be living together under the same roof, but there was no such quality time spent among the family members. Like a coin has two sides, this lockdown turned out to be a blessing for some families and a nightmare for some families. The lockdown in India saw a tremendous rise in divorce petitions. It will be quite incorrect to say that in the global picture, the divorce rate of India is anywhere high. However, as per the internal survey within India, the number of divorce petitions in 2020 was about 5,059, even though the family courts had remained closed from March to August. In Mumbai, a family court in Bandra recorded an average of 19 divorce petitions daily. It has also been observed that the number of men filing divorce petitions is higher than women. 

The reason behind the rise in divorce rates

Some of the reasons which lead to divorces are:

The deep-rooted patriarchy

In the 21st century, there still lies a section of people who consider working women a taboo to society. The in-laws try to pressurize the woman to not do any job. Some families allow the woman to work, but various difficulties eventually lead the woman to quit her job. At times, it is also observed that the ego of the male partner disrupts the happiness of marriage when the female partner earns a higher salary.

No Communications

Communication is one of the essential factors of a happy and peaceful marriage. Two entirely different people living together need to communicate the issues or the problems faced by them. Conversely, a lack of healthy communication often leads to conflict.

Infidelity

One of the most common causes of divorce is infidelity. Infidelity means where a partner is cheating or is unfaithful towards his/her partner. The Supreme Court has struck down Section 497 of the Indian Penal Code. Section 497 dealt with adultery; it is no more a criminal offense now. However, adultery is still a ground for divorce in virtue of Section 13(1)(i) of the Hindu Marriage Act, 1955. The provision states that either the husband or wife can file a divorce petition if their partner voluntarily had sexual intercourse with any other person after the solemnization of marriage. The Special Marriage Act, 1954 also recognizes adultery as a ground for divorce in Section 27(1)(a). The Divorce Act, 1869 is specifically for those persons who profess the Christian religion. According to Section 11 of this Act, if a husband or wife files a petition on the ground of adultery, the petitioner should make the alleged adulterer or adulteress a co-respondent unless excused by the court. Muslim Law recognizes adultery to be a severe crime. According to Section 2(viii)(b) of the Dissolution of Muslim Marriage Act, 1939, a Muslim wife can claim a judicial divorce if her husband associates himself with a woman of ill reputation or is leading an infamous life. Under Muslim law, the concept of lian is prevalent. Lian means if a husband charges his wife of adultery and that charge turns out to be false, then the wife can sue him and obtain a divorce. 

Sexual problems in marriage

Sexual relationships are a crucial part of marriage. It creates both an emotional and a physical connection between the two partners. It has been observed that a lack of proper sexual connection often leads to divorce. Even the law recognizes impotency, sexual diseases as a ground for divorce. Under the Hindu Marriage Act, 1955, Section 12(1)(a) considers marriage as voidable based on a petition if there has been no sexual activity on the basis of impotency. Section 13(1)(v) states that either the husband or the wife can file a petition for divorce if the other party has been suffering from any of the venereal diseases. Under the Special Marriage Act, 1954, Section 24(1)(ii), a marriage is deemed void on the basis of a petition if the respondent is impotent. Section 27(1) of the Act recognizes venereal diseases of a partner as a ground for divorce. Under the Divorce Act, 1869, on the basis of a petition, a marriage will be declared null and void if the respondent is impotent. Section 10 of the Act also recognizes venereal diseases as a ground for divorce. Under the Dissolution of Muslim Marriage Act, 1939, a wife can claim a judicial divorce on the grounds of impotency of the husband.

Cruelty

Cruelty is another most crucial reason for divorces. Often cases come, where the female is tortured and ill-treated by both the husbands and the in-laws. Cruelty is not limited to physical abuses; it also includes oral and mental torture. However, a mere argument between couples or a trivial among the in-laws does not amount to cruelty. Cruelty must be something more than the ordinary wear and tear of married life. Under the Hindu Marriage Act, 1955, Section 13(1) allows the husband or wife to file the petition for divorce on the ground of cruelty committed by the other partner. The Special Marriage Act, 1954, also recognizes cruelty as a ground for divorce.  Dissolution of Muslim Marriage Act, 1939 and  Divorce Act, 1869 also recognizes it. Under the Indian Penal code, Section 498A deals with cruelty towards the wife when the husband or relative of the husband has committed cruelty. This Section of IPC makes it a criminal offense, and it also defines the term cruelty widely. The Indian law has also made a separate Act to protect women from domestic violence, i.e., The Protection of Women from Domestic Violence Act, 2005.

Impact of COVID-19 on marriages

The married couples face various challenges due to the lockdown. It is believed that most of the complexity arises in intimate relationships. As an individual, we are always subconsciously thinking of our needs and are dominated by our ego. Due to the lockdown in 2020, personal spaces have been redefined; this has eventually led to stress and an unhappy zone in our minds. Previously, many marriages were just there for the namesake, and couples used to spend very little time with each other to avoid any sort of conflicts, but the lockdown has forcefully made such couples stay together. This has led couples to go for divorce or separation. A lawyer-based search platform stated that about 8 out of 10 calls were for divorce.

Another vital aspect is the lockdown has also raised the rate of unemployment. As a result, many bread-earners of the family have lost their jobs. The financial insecurity among the families has created stress among the family members. The stress had eventually led to huge conflicts. Some families, especially males, in order to reduce stress, have started alcohol consumption. This has deeply affected the peace and harmony in many families.  Thus, many couples have broken down their marriage either for instability in income or for losing a job.

In 2020, a considerable rise in domestic violence was observed. A report produced by the National Commission for Women or known as NCW stated that there had been a 100% increase in violence against women during the month of April and March after a nationwide lockdown was imposed. This has led to various victims of domestic violence applying for divorce. Even forceful sexual violence on the spouse had increased and led to the breakdown of marriages.

Divorce or separation in times of COVID

The main motive of the divorce law in India is to try to settle the differences that have been prevalent between the couples. However, there are certain circumstances where either the decree of divorce is important for the protection of the party to the marriage or when either party does not want to resolve the issues and cohabit again. During the lockdown, as conflicts, stress, cruelty have increased among the couples, the need for divorce among couples has increased parallelly. Many queries come to one’s mind while applying or thinking about divorce during COVID-19. Let us try to solve some of the queries or doubts.

Possibility of divorce in COVID times

Though from March 2020 to August 2020, family courts were closed due to lockdown, the courts have slowly started to function. The second wave of COVID-19 has also affected the working style of courts, but proceedings through video conferencing have begun. In addition, the Supreme Court has allowed a petition where the decree of divorce can be granted through video conferencing. Thus, couples can file for divorce in courts. However, the couples may experience delays in their cases due to the functioning of courts on the half manpower, and crucial cases are being taken on the first instance.

 The financial aspect of divorce

During the pandemic, it might be favorable to file divorce cases as the financial liability of the husband may decrease. COVID-19 has affected the financial situation of almost everyone. Many people have experienced downtown in their assets. Thus, if a divorce is filed now, some parties to the marriage might have an advantage. On the other hand, if their total value of assets has decreased, the maintenance charge will also be changed accordingly. An issue has also been raised that if the parties to a marriage think that financial agreement is no longer fair between them, they can go for a Barder event (a significant change in circumstance could justify appealing a financial settlement outside of the time limits for appeals). COVID-19 can fall under the purview of Barder event is still in doubt; however certain circumstances might lead to it.

Can Court hearings carry on remotely?

The court hearings could be carried on remotely if the proceedings of the case had already begun except in some cases. Due to the sudden rise in covid cases in 2021, the courts had been temporarily closed, but many courts are slowly trying to carry on remote hearings through video conferencing. The parties to the divorce must be careful with their internet connections so that no disturbance occurs. However, at times due to unavoidable circumstances, the proceedings are postponed. 

Alternatives to remote court hearings

If the court has adjourned, certain alternatives can be done:

  1. Parties can do Financial Dispute Resolution in private.
  2. Arbitration can be adopted in divorce, especially if custody of children or any financial disputes needs to be settled.

Family Court order

In 2020, the Family Court had ordered for the waiving of the six-month period required for divorce made under Section 13B(2) of the Hindu Marriage Act. Section 13B deals with the divorce by mutual consent. In such cases, a cooling period is granted on the first motion so that if the party wants, they can change their minds. However, this period of six months is not mandatory. It is made compulsory as sometimes, divorce under mutual consent happens due to extreme frustration between couples which cools down within a period. Thus, if any couple wants divorce by mutual consent, they do not have to wait for six months; a speedy decree can be obtained.

Conclusion

The divorce rates have leaped globally during COVID-19. Marriage therapists all around the world have said about the vast number of cases they are getting. According to the therapists, most of the couples in lockdown are experiencing anxiety, work-home balance stress, financial tension, tension for the future of children, etc. The therapists have suggested some ways to keep the marriage alive by communicating the mistakes of each other in a calm manner, giving space to each other, respecting the boundaries of each other, discussing the financial issues with each other, etc. As stated above, the violence against women has also increased; thus, more strict actions should be taken against those crimes. Above all, if a divorce is required, the judiciary is always there, even in times of covid to help.

References


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