Divorce
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This article is written by Srishti Sinha, a student at the Institute of Law, Nirma University. This article deals with the social and legal aspects of divorce in India. 

Introduction 

The term “divorce” is something that does not require any introduction. Divorce is often termed as the difficult and painful dissolution of a marriage but it is a pretty regular occurrence these days, for better or worse. It has affected almost everyone, whether they have experienced it as a spouse or a kid, or know someone who has experienced it as a spouse or a child. The repercussions of divorce are well-known, but the intricacies of the divorce process are less well-known. 

The first thing about divorce is that it is very common and nothing to be ashamed of. In foreign countries, divorce is such a common process that it is nearly impossible to predict who will take divorce in the current future or who is taking divorce today. The second thing to keep in mind about divorce is that it is a long-established and venerable institution. Divorces have been happening for as long as humans have been marrying. The ease with which a divorce may be acquired, the social stigma associated with divorce, and the degree of influence religious and governmental forces have over divorce have all changed dramatically through time and between countries. Further, the term “divorce” is not awful, it has arisen due to marital conflicts, and therefore, considering it a social stigma is wrong. It is just a process of separation when two people are not happy with each other. 

Social aspects of divorce in India 

In Indian culture, marriage is a holy institution, and divorce is considered taboo. Although the situation is improving as the younger generation is becoming more independent, the term “divorce” is still frowned upon. As a result, dealing with divorce in India necessitates a great level of emotional stability and endurance on both spouses’ parts. 

Divorce in India is still not as common as it is in the West. In India, one out of every 100 couples seeks a divorce, whereas, in the United States, half of all marriages result in divorce. Despite the fact that India’s divorce rate is lower than that of Western countries, the number of divorce cases is steadily increasing as a result of different social and economic changes. Also, talking from a legal point of view, divorce is not a major issue because everyone has the right to live their life freely and according to their choice. 

In modern Indian society, a woman’s role is not confined to that of a housekeeper. Women of the new generation have achieved economic parity with males. As women become more economically independent and autonomous, the concept of “compromise in marriage” is rapidly diminishing. Modern Indian men and women do not believe in marital compromise in the same manner that our forefathers did. But it is our patriarchal society that exaggerates the issue of divorce. As a result, women are the ones that suffer the most. They become the target of either harsh criticism or unfathomable sympathy. Women who have been divorced are conditioned to feel that they are weak and incapable of surviving in the harsh world without the help of a man. The culture rejects their requests for a second marriage or partnership. They are referred to as “damaged goods” and other derogatory words. Men, on the other hand, continue to live in a calm setting following their divorce. They are still considered bachelors regardless of their age. This does not imply that women are the only ones who suffer. Men, too, are affected. However, as compared to women, their ratio is smaller.

Marriage and divorce are unavoidable parts of life. While marriage helps you to adjust to a new partner and family, divorce trains you to become mentally stronger and more self-reliant. Divorce can be granted for a variety of reasons, including adultery, cruelty, desertion, religious conversion, mental illness, and venereal infections. In the past, divorce law was skewed heavily in favour of women. This implies that patriarchal views and notions have an impact on the law. However, with the law’s revision, the law now treats men and women equally.

Impact of divorce on mental health 

Marriage dissolution isn’t usually a joyous occasion. Divorce is frequently accompanied by disappointment, the loss of dreams, and lowered expectations. Divorce also brings with it a slew of legal, financial, parental, emotional, and practical concerns that force the afflicted spouse to drastically alter their duties and routines, which can take years to recover from. Divorce has been identified as a risk factor for mental health disorders and has been linked to negative mental health outcomes. Divorce, in particular, has a detrimental impact on a family’s financial stability, social environment, academic/employment performance, as well as the family’s psychological and physical well-being. 

Divorce exacerbates addictions and depressions, which are the most common mental diseases. Addictions are usually linked to a lack of personal responsibility, which can lead to the other spouse taking on too much duty. Because their primary goal is to satisfy their addiction need, an addicted individual finds it difficult to be intimate in their relationships. Addicted people also have a tendency to blame the world or other people for their unhappy marriage, including their partner.

Impact of divorce on children

Divorce has a significant impact on the parent-child connection. Usually, it is seen that children, as well as custodial parents, do not have that connection which a child and parent should have. Due to a lack of understanding and connection, both the parties are in tension. Furthermore, divorce necessitates a clear definition of child rights in the current environment, as well as how they must be represented in a divorce case. 

Children are unquestionably distressed by divorce. Outside of the family, a child faces a lot of issues and problems fitting in with a traditional society due to the stigmatisation of divorce. It is usually observed that children who see their parents’ divorce have lower educational prospects than children who grow up in intact families because they cannot cope with their surrounding family environment. The physiological behaviour of the child is the most evident influence within the family. In the post-divorce period, there are also children who are left with a guilty conscience that because of them their parents got divorced, especially if they are regular witnesses to the parents’ feuds. 

Furthermore, step-families are frequently problematic, as children struggle to adjust to their new step-parent and extended step-family. Children learn how to interact with others by observing how their parents interact with one another. Divorce instils in them an unspoken distrust of their partners. Divorce also raises the likelihood of young people fleeing their families due to conflict with a parent.

Legal aspect of divorce in India

Divorce is one of life’s most devastating events for any couple. Furthermore, if the divorce is disputed in India, it can be a lengthy and costly process. Even couples who agree to divorce must show that they have been separated for at least a year before the courts would hear their case.

Divorce rules in India, like other personal problems, are linked to religion. The Hindu Marriage Act of 1955 governs the dissolution of marriage among Hindus, Buddhists, Sikhs, and Jains, the Dissolution of Muslim Marriages Act of 1939 governs Muslims, the Parsi Marriage and Divorce Act of 1936 governs Parsis, and the Indian Divorce Act of 1869 governs Christians. On the other hand, the Special Marriage Act of 1954 governs all civil and inter-community marriages. 

Valid Marriage

For an application and proceedings of divorce, the main criteria are to have a valid marriage. If any criteria of a valid marriage are missed at the time of marriage then, the application for divorce will be rejected. 

Conditions required for a valid Hindu marriage 

According to Section 2(3) of the Hindu Marriage Act, both parties must be Hindus. If one of them is a Hindu and the other is a non-Hindu, or if both are non-Hindus, the marriage will be governed by different legislation, such as the Special Marriage Act. The basic requirements for a legitimate marriage are outlined under Section 5 of the Hindu Marriage Act and are discussed below: 

  1. The first criterion states that neither partner should have a live spouse at the moment of marriage, effectively prohibiting bigamy. Under Section 494 of the Indian Penal Code, 1860, bigamy is also a crime punishable by up to seven years in prison, a fine, or both. If a married person remarries under this Act, the second marriage will be nullified. The apex court declared in decisions like Bhogadi Kannababu & Ors. v. Vuggina Pydamma & Ors. (2006), M.M. Malhotra v. Union of India (2006) and Yamunabai Anantrao Adhav A v. Ranantrao Shivram Adhav & Anr. (1988) that the second marriage would be null and void while the previous marriage was still valid.
  2. The parties to the marriage shall not be of unsound mind; or have a mental disease that makes them unfit for giving consent for marriage or childbearing; or have had recurrent episodes of insanity or epilepsy. Marriage to a person who is mentally ill is void.
  3. At the time of marriage, the bridegroom must be 21 years old and the bride must be 18 years old.
  4. The fourth criterion is that none of the spouses in the marriage shall be in forbidden degrees. Section 3(g) of the Hindu Marriage Act defines the term “degrees of prohibited relationship.” A marriage that takes place in violation of this criterion is null and void. This condition has an exception: if any religion’s custom or usage allows it, the marriage will not be ruled void. Further, the Punjab and Haryana High Court held in Shakuntala Devi v. Amar Nath (1981) that two people can marry within the prohibited connection if there is proof of established tradition, which must be very old and beyond human memory.
  5. Last but not least, the partners must not be Sapindas (a person viewed in connection to one or more of his three or six closest male ancestors or descendants) of one another; otherwise, the marriage is null and void. The same exception applies to this condition: if any custom or usage permits it, the marriage will be recognized as valid. 

Conditions required for a valid Muslim marriage

Mahmood, J. identified the nature of Muslim marriage as a civil transaction rather than a sacrament in the landmark case of Abdul Kadir v. Salima and Anr. (1886). Based on his observations, we may deduce that the goal of Muslim marriage is to legalise male-female sexual relationships as well as child propagation. As a result, a legally binding contract is required for Muslim marriage. The fundamentals of a Muslim marriage are extremely similar to the fundamentals of a Civil Contract which includes:

  1. Proposal and Acceptance: In a Muslim marriage, the proposal is known as ‘ijab’, and the acceptance is known as ‘qubul’. A proposal should be presented by or on behalf of one party and the other party should accept it. Proposal and acceptance should take place at the same time for a lawful Muslim marriage.
  2. Competent parties: The party should be major, of sound mind, and must be Muslim. The age at which a person achieves puberty is regarded as the age of puberty for the purposes of Muslim marriage. According to Hedaya, female puberty begins at the age of 9 years while male puberty begins at the age of 12 but in the landmark case of Muhammad Ibrahim v. Atkia Begum & Anr. (1912), the Privy Council ruled that a girl has reached puberty under Muslim law if she has reached the age of 15 years or has reached puberty at a younger age. A Muslim boy is subject to the same rules. In the absence of evidence to the contrary, a Muslim is regarded as having reached puberty at the age of 15 years. 
  3. Free consent: A legitimate marriage requires the parties’ voluntary consent. If permission is obtained by coercion, deception, or a mistake of fact, it is deemed invalid, and the marriage is declared null. In the case of Sayad Mohiuddin Sayad Nasiruddin v. Khatijabibi (1939), the court concluded that marriage is illegal if it is performed without the spouses’ free agreement.
  4. Mahr: It refers to the amount of money or other property that a bridegroom must offer to the bride in exchange for her hand in marriage. Its purpose is to provide financial stability to the bride both during and after the marriage. The Allahabad High Court ruled in the case of Nasra Begum v. Rizwan Ali (1979) that the right to mahr existed before cohabitation. The court also decided that if the woman is a minor, her guardians can refuse to deliver her to her husband until the dower is paid and that if she is in her husband’s possession, she can be returned.
  5. Marriage is not permitted under restricted areas like marriage within blood relation, two wives in a relation, re-marriage within a divorced couple, etc. 

Conditions required for a valid Parsi marriage

In Parsi law, valid marriage conditions are outlined in Section 3 of the Parsi Marriage and Divorce Act, 1936. For the validity of a Parsi marriage, the following conditions are mandatory:

  1. If both contracting parties are related to each other in any degree of consanguinity, i.e. people descended from the same ancestors, the marriage will be invalid.
  2. A marriage that is not solemnized by a priest in the presence of two Parsi witnesses is not legal in Parsi law. Further, it was established in the case of Parshottam v. Meherbai (1888) that Ashirvad, which means blessing, is required to prove the legality of a marriage. In addition, the court determined that it refers to an exhortation or prayer recited by the couples before the marital inspections.
  3. If the male is under the age of 21 and the female is under the age of 18, a marriage will not be considered.
  4. If the marriage is not lawful for the reasons stated above, every child born to the couple who would have been legitimate if the marriage had been valid is legitimate. 

Conditions required for a valid Christian marriage 

The Indian Christian Marriage Act of 1872, issued during the British Empire, controls Indian Christian marriages. According to the Act, Section 60 states the following conditions which must be met for a marriage to be valid: 

  1. The bridegroom’s age cannot be less than twenty-one years old, and the bride’s age cannot be less than eighteen years old;
  2. The consent of both parties to the marriage must be given voluntarily and should not be obtained by distorting facts, coercion, or undue influence;
  3. At the time of the marriage, neither partner should have a living spouse;
  4. The marriage must be performed in the presence of at least two reliable witnesses and a person licensed to provide a certificate of marriage.

Another prerequisite for validity is set forth in Section 88 of the Act, which states that nothing in the Act shall legitimise any marriage that either party’s personal law prohibits them from entering. For example, an inter-caste marriage between a Christian and a person of another faith will be void if the other person’s personal law prohibits marriage with a Christian. Later, the Madras High Court clarified in Gnanasoundari v. Nallathambi and others (1945) that Section 88 of the Act covers bans based on blood connections and affinity.

Divorce petitions

Now, if the marriage is valid, considering all the conditions mentioned above, and there’s a dispute between the parties after marriage, a couple can get a divorce if both spouses agree, or either spouse can apply for a divorce without the other’s approval. 

Divorce with mutual consent

The courts will consider a divorce with mutual consent if both the husband and wife agree to divorce. However, in order for the petition to be allowed, the couple must have been separated for at least a year or two years (depending on the relevant laws) and be able to demonstrate that they are unable to live together. Even though neither husband nor wife wants it, they often consent to a no-fault divorce since it is less expensive and less stressful than a contested divorce. Custody, support, and property rights for children could all be jointly agreed upon.

The Hindu Marriage Act of 1955, the Special Marriage Act of 1954, and the Indian Divorce Act of 1869, all provide for divorce by mutual consent. The provisions of mutual consent divorce are specified in Section 13B of the Hindu Marriage Act, Section 28 of the Special Marriage Act, and Section 10A of the Indian Divorce Act.

For the petition of dissolution of marriage, the petition should be presented to the court and the couple only needs to prove that they have not been living as a husband and wife for a period of one year or more and they are not able to live together in future. Keep in mind that living apart does not always imply living in different places. The Supreme Court of India held the same in the case of Sureshta Devi v. Om Prakash (1991), stating that living apart does not always entail living in distinct areas. The parties can live together but not as husband and wife. Further, before giving divorce, the couples are provided with a period of 6 to 18 months, called a cooling-off period, to settle their disputes and give their relationship a second chance.

However, in Devinder Singh Narula v. Meenakshi Nangia (2012), it was determined that such an amount of time does not need to be maintained and that if the situation requires it, the marriage must be dissolved even before the six-month period has expired. In another case, Rajiv Chhikara vs. Sandhya Mathu (2016), the Delhi High Court’s Division Bench ruled that reneging on a settlement is equivalent to mental abuse. According to the court, the parties had been living separately since 2009 and their relationship was beyond repair. In such a case, if one spouse insists on maintaining the marriage link, it is equivalent to subjecting the other to a severe mental cruelty condition.

Muslims can get divorced by mutual consent in two ways: khula divorce and mubarat divorce.

  • Khula: In this type of divorce, the wife considers asking her husband for a divorce based on mutual consent. In the case of Mrs. Sabah Adnan v. Adnan Sami Khan (2010), it was held that khula is a recognized form of divorce. 
  • Mubarat: In Mubarat, the husband and wife agree to divorce each other. When one party makes an offer, and the spouse agrees, the divorce is final.

Divorce without mutual consent 

In marital ties, there are some rights and responsibilities of each partner. All of the Acts specify the reasons for filing for divorce. The Hindu Marriage Act of 1955, the Special Marriage Act of 1954, the Indian Divorce Act of 1869, and the Dissolution of Muslim Marriages Act of 1939, all allow a husband or wife to submit a divorce petition. There are various grounds on which a petition can be filed in the context of a contested divorce. It’s not like a husband or wife can just ask for a divorce without giving a cause. 

There are 9 grounds mentioned under Section 13(1) of the Hindu Marriage Act, 1955 on which either the husband or the wife could sue for divorce. The following grounds are mentioned below: 

Adultery 

Adultery is the first ground. A divorce petition can be filed if the husband or wife has sexual relations with someone other than their spouse. It must be demonstrated that the period during which the spouse was living an adulterous life was so closely related to the filing of the petition in terms of time that the petitioner had a reasonable belief that the respondent was living in adultery at the time the petition was submitted. In the case of Dastane v. Dastane (1975), the Supreme Court declared that if personal connections are involved, particularly those between a husband and wife, there is no need for proof beyond a reasonable doubt.

Cruelty

Cruelty has now been made a reason for divorce and judicial separation under the Marriage Laws (Amendment) Act, 1976. Before that modification, it could only be used as a basis for judicial separation, not divorce but this was upheld in the decision by the Supreme Court in the case of Dastane v. Dastane (1975). The term “cruelty” is used here to refer to both mental and physical abuse. Further, the Supreme Court ruled in the case of Mayadevi v. Jagdish Prasad (2007) that any sort of mental abuse suffered by either spouse, not just the woman, but also the man, can lead to divorce on grounds of cruelty.

Desertion 

The Marriage Laws (Amendment) Act, 1976 introduced desertion as a basis for divorce to Section 13. It was previously exclusively a basis for judicial separation. Desertion is now a legal basis for judicial separation and divorce. It refers to leaving the marriage house and abandoning one’s spouse. If a husband or woman abandons his or her spouse for two years or more, it is grounds for divorce.

Conversion

A Hindu marriage can be dissolved by a divorce decision if the respondent has converted to another religion and no longer considers himself a Hindu. As a result, the party who continues to be Hindu has the right to divorce under this law. 

In Sarla Mudgal v. Union of India (1995), the Court held that a Hindu husband’s second marriage following his conversion to Islam is void because it violates fairness, justice, and good conscience, and thus falls under Section 494 of the Indian Penal Code. Another case of Khambatta v. Khambatta (1933) is in which a Muslim married a Christian woman in the Christian form. The wife converts to Islam, and the husband gets a talaq divorce. The Court ruled that the divorce was lawful under these circumstances.

Unsoundness of mind

It becomes a ground for divorce if the spouse suffers from an incurable mental disease to the point where it is reasonable not to expect to live with him or her. The phrase “mental disorder” is defined as “mental sickness, arrested or incomplete development of the mind, psychopathic condition, or any other disorder or impairment of the mind, including schizophrenia” in the first explanation of Section 13. In cases like Anima Roy v. Prabadh Mohan Roy (1969), Kartik Chandra v. Manju Rani (1973), C.J. Joy v. Shilly (1995) and Kollam Padmalatha v. Kollam Chandrasekhar (2000), the court maintains that the person must be able to comprehend the marriage contract and the duties and responsibilities that it entails.

Virulent and incurable disease 

Divorce is also possible due to an incurable form of leprosy and venereal illness. When it is undisputed that the respondent has had leprosy, the petitioner has the burden of proving that the disease is virulent and incurable.

Presumption of death

A divorce may be granted if the respondent has not been known to be alive for a period of seven years or more by people who would have naturally heard of it if that party had been alive. Further, it was established in the case of Nirmoo v. Nikkaram (1968) that if a person presumes his or her spouse’s death and marries another person without getting a divorce decree, the spouse might contest the legitimacy of the second marriage after his return.

Judicial Separation

If the partners who were living separately under the decision of judicial separation have not cohabitated for a year or more can apply for divorce. Further, the birth of a child as a result of a single act of sexual intercourse does not imply that the couple will resume their relationship. 

Restitution of conjugal rights 

A divorce petition can be filed if the husband or wife gets a decree of conjugal rights and there is no restitution of conjugal rights for a period of one year or longer. In the case of Shanti Nigam v. R.C. Nigam (1971), it was decided that if a wife wants to work and feels that for the upkeep of the family that she should also work and she would go to her husband whenever it is possible for her to do so, the husband could also come to her at his own convenience. In such a situation it cannot be said that she has withdrawn herself from the society of her husband.

Irretrievable breakdown of Marriage

In pursuant to the cases, Miss Joden Diengdeh v. S.S. Chopra (1985) and Navin Kohli v. Neelu Kohli (2006), recommendation to insert “irretrievable breakdown of Marriage” as a ground of divorce, the Law Commission of India undertook a study of the subject and, after reviewing existing legislation and various Supreme Court and High Court judgments on the subject, recommended that irretrievable breakdown of marriage be included as a ground for grant of divorce in its 217th Report on “Irretrievable Breakdown of Marriage – another Ground for Divorce” submitted on March 30, 2009.

Speaking of the Muslim community, men in the Muslim community can divorce at any time without having to file a petition. However, Muslim women can only divorce for certain reasons listed in Section 2 of the Dissolution of Muslim Marriage Act. Following are the conditions under which the petition of divorce can be filed:

  1. If the husband’s whereabouts have been unknown for four years or more;
  2. When the husband fails to provide maintenance to the wife for a period of two years;
  3. The husband is imprisoned for at least 7 years;
  4. When a spouse has not met his marital obligations for three years;
  5. Husband’s impotence at the time of marriage, and if it persists;
  6. Mental ill-health;
  7. Husband’s communicable sickness;
  8. If the wife was married before the age of 15 and repudiates the marriage before the age of 18; and
  9. Husband’s cruelty.

Under Section 10 of the Indian Divorce Act, Christians can apply for a divorce in the following cases:

  1. Adultery;
  2. Conversion from Christianity to a different faith;
  3. For at least two years, the person had an incurable mental illness;
  4. For two years, the person was infected with communicable sickness;
  5. Presumption of death if the spouse’s whereabouts have been unknown for seven years or longer;
  6. When one of the partners willfully refuses to complete the marriage;
  7. If no recovery of conjugal rights occurs within two years of the date on which the decision was issued;
  8. 2 or more years of desertion;
  9. Cruelty;
  10. If the husband is guilty of rape, sodomy, or bestiality, the wife can file for divorce.

Conclusion 

In the Western world, divorce may be a common occurrence. One of the most vocal opponents of this family issue is the eastern world. Divorce is still a taboo subject in society today. A couple may marry in a beautiful wedding and appear to be the happiest people on the planet, but what happens next is unclear. They might either live a life of fairytales or experience the greatest nightmares. If the situation becomes worse, the couple will file for divorce. 

Divorce is not governed by a single rule; instead, each religion has its own set of laws that govern marriage and divorce. A husband or wife can submit one of two types of divorce petitions. If they agree to divorce, a divorce petition by mutual consent is filed. If one of the parties to the marriage wants to file a divorce petition, it is referred to as a contested divorce, and there are grounds such as cruelty, adultery, communicable disease, mental disorder, and so on, on which the petition can be filed in court by either the husband or wife.

References 


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