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AN ANALYSIS OF DIVORCE IN INDIA

Updated: Feb 20, 2022

Written By - Mayur Pokale and Sanchi Agarwal.

INRODUCTION

Marriage is a sacred bond between a man and a woman which provides social solidarity to society at large. The institution of marriage in India as said is not between two individuals but two families. Marriage is seen as a rule of social acceptance and divorce as a social taboo. Where a relationship exists, fights are bound to happen. But at times it becomes difficult for parties in a marriage to live together, such a marriage which is irretrievably broken down and is a wreck with no substance in the relationship, must end. Divorce must not be frowned upon; it is better to live separately than forceful living in a broken home.

DIVORCE UNDER HINDU LAW

Marriage under Hindu law is considered as the divine union of man and woman. Divorce in the Hindu society did not have a historical existence, it was and is still in certain cases considered evil. The fact that the name of the act is Hindu marriage act and not Hindu Marriage and divorce act makes the intention of the legislature very clear “Marriage is the rule and divorce only an exception.”

I)The fault theory of divorce essentially requires a party to be at fault or who has committed a sin harming the other party. Remedy is sought by the party who suffers from such mischief. The aggrieved party can seek a divorce from the offending party. The manifestation of the same can be found in section 13 of Hindu Marriage Act, 1955. Grounds mentioned in Sec 13(1) are available to both the parties i.e., husband and wife, whereas Sec 13(2) bestows upon women certain special grounds to seek divorce.

Section 13(1) and 13 (2) provide for grounds relating to this theory


Certain Grounds under sec 13(1) are as under:

1.Desertion[1]:

Desertion means the abandonment of one party to marriage by the other spouse without any justifying cause. For desertion to qualify as a ground for divorce a minimum period of two years should have elapsed before the date of filing of a petition by the aggrieved party.

Illustration- A married B on 7th April 2018, due to many quarrels and fights A left B on 29th May 2018, B filed a petition for divorce on 5 June 2019, the court held that as A had deserted for less than two years a decree for divorce cannot be granted.

A similar judgement was given in Kamleshwari Bai v. Peeluram Latkhor Sahu[2]


2. Cruelty[3]:

Cruelty is often constrained to violent physical behaviour and abusive language. It is also assumed that only a wife can suffer from the cruel behaviour of her husband. The concept of cruelty is not limited to physical violence but also includes mental cruelty and the law provides equal treatment for the injury suffered by the husband and the wife.

Illustration- In Sreepadachar v. Vasantha Bai[4], the wife abused her husband in public and insulting him. She gave fake threats of self-harm to bring the husband in trouble with the police. The court held this to be legal cruelty on the part of the wife towards her husband.


3. Adultery[5]:

Adultery means having voluntary sexual intercourse with anyone outside the institution of marriage. It results in a breach of trust and affects the sacred union of marriage. It has been recognised as a ground of divorce under Hindu law Even a single act of infidelity is sufficient.

Illustration- B upon his return from a trip found his wife A and C in a compromising position in her bedroom. Clothes were all around the room. B filed for divorce. The court held that only circumstantial evidence is not sufficient for a decree of divorce to be granted.[6]

4. Insanity[7]:

The court has held that along with incurable soundness of mind, even mental disorder falling short of unsoundness of mind is sufficient to claim a divorce. Temporary aggressiveness, schizophrenia, etc. are also sufficient.


5. Leprosy:

Leprosy is a contagious skin disease that causes discoloration and lumps on the skin and, in severe cases, disfigurement and deformities. A petition for divorce can be granted if the respondent suffers from virulent and incurable leprosy. The Personal Law Amendment Act 2019[8] has omitted the word leprosy.


6.Venereal disease[9]:

A disease of contagious nature commonly spread by sexual intercourse between partners.

For example, A filed for divorce on the ground that his wife is afflicted with HIV positive, which is in a communicable form and therefore, the marriage between him and the respondent has to be dissolved. With reference to P.Ravikumar v. Malarvizhi S.Kokila,[10]the court held that “HIV is not transmitted by handshakes or other casual non-sexual contacts, coughing or sneezing, or by bloodsucking insects such as mosquitoes. Therefore, when a spouse is having that disease, the other spouse is entitled to get the declaration of divorce”


7. Conversion[11]

Conversion essentially means that a party to a marriage, being Hindu, has given up Hinduism as his/her religion and has adopted other religion after undergoing either religious or other formal ceremonies. The other party has been given a right to seek divorce under such circumstances.

In Suresh Babu v. Leela[12] , husband claimed that he had relinquished Hinduism and embraced Islam with the consent of his wife and as such the petition for divorce filed by the wife was not maintainable. The court held that “conversion is an act which clothes with the other spouse an indefeasible right to get divorce.

8. Renunciation of world[13]:

If a party renounces the world by entering into any religious order, the aggrieved party can seek divorce under this ground. For example, A becomes a devoted sanyasi and vouches to let go of all luxuries and comforts of life, his wife B can file for divorce.

9. Presumption of death[14]:

If the existence of a person has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive, the spouse can seek divorce under such circumstances.

Special grounds available only to women:

Sec 13 (2) bestows upon women certain special rights to seek a divorce, they are discussed below-

1.Bigamy:[15]

If the husband marries another woman, other than his wife, during the lifetime of the wife without the dissolution of the marriage, he is said to perform the act of bigamy. In such a case, the wife (the first wife) can file a petition for divorce under sec 13 (2)(i).

Illustration- A, despite being married to B, marries C in a temple. Here, B can file a petition for divorce under Bigamy.

2. Rape, Sodomy or Bestiality:[16]

If the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality, a decree of divorce can be sought by the wife.

3.Non-resumption of cohabitation after a decree of maintenance:[17]

If in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956(78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973(2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898(5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; a right remains with the wife to seek divorce.

4. Repudiation of marriage:[18]

If the marriage (whether consummated or not) was solemnized before the wife attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

II)Mutual Consent theory believes that as marriage is entered by the will of two parties out of their free consent, hence they must also be given an option to put an end to the marriage when both of them agree mutually.

Sec 13 B of Hindu Marriage Act deals with divorce by mutual consent.

MOHAMDEAN LAW OF DIVORCE

Marriage under Muslim law is a civil contract which is entered into by an agreement arising out of a proposal and its acceptance. The contractual character of the Muslim marriage makes it clear that such a contract can be ended, bestowing the power prominently on the husband.


FACTORS LEADING TO INCREASE IN DIVORCE RATE IN INDIA

There are various factors that are responsible for the increasing rate of divorce in India. India’s divorce rate today is 1 out of 100 marriages end up in divorce whereas earlier it was only 7.40 per 1000 marriages. We will look at some of those factors below.


Independence of women-

In modern days the increasing independence of women due to an increase in the rate of education and literacy amongst women has sent shockwaves across the Indian family institution. Earlier women were dependent on their husbands both financially and mentally hence they would refrain from talking about or acting against their spouses if they were physically mentally abused as they feared that their life would be ruined after doing so as they had no financial support or guarantee. In today’s time all of this has changed and women have become more and more financially independent and are not dependent on their spouses anymore and hence when they are subjected to domestic violence, they speak out against it and stand up for themselves. This has resulted in an increase in the rate of divorce in India as women have gained more independence.


Drugs or Alcohol Addiction-

In certain cases, alcohol addiction or drug abuse which was up until now an issue only with the males in the relationship has now also arisen in the females as in today’s fast-paced world and hectic work life people find comfort by indulging in such things and these addictions have led to physical abuses / mental agony and strained relations between the couples and even with the in-laws, therefore, leading to an increase in divorce rates in the country.


Lack of Communication-

Many Couples get divorced because they are not able to communicate properly with each other over a period of time and thus they face a lot of issues in their marriage like distrust amongst the couple leading to a rise in suspicion. Lack of communication may arise from various factors like forced marriage, work-load, partners disliking each other, incompatibility of partners. This lack of communication hampers the marriage, it is more important to have communication amongst the partners rather than love. Instead of solving this issue of communication people get divorced. This should not be the case.


Relations with in-laws-

As it is said that marriage in India not only between two individuals but also an intertwining of two families while the families can help sustain a marriage, they also are one of the root causes of divorce in many cases. The degrading relations with in-laws often lead to divorce. The most common cause being the relation between mother-in-law and daughter in law. In certain cases, girls are more career-oriented and cannot focus as much on the family as expected by their in-laws and this creates a rift between the in laws and the girl which leads to various complications and falling out between the couples. Also, some in-laws have an old mindset where they do not expect a girl to work outside and want them to take care of the household this difference in mind-set and generational gap also creates friction between the in-laws and the girl. When the relations worsen and become toxic, marriages dissolve. There are many cases where extreme involvement from a girl’s family has also resulted in divorce.


Demands for Dowry-

Demands for dowry is also a great cause for an increase in divorce rates amongst couples, it’s not like it’s a recent phenomenon, taking dowry has been an age-old practice which is illegal now and which should rightfully be so, despite this some people still indulge in these practices. They might even ask for more dowry after the marriage. The only reason that this has been coming to light and people are getting divorced because of this is that women are getting educated now and are well aware of their rights compared to women earlier. This awareness has helped them fight against this evil.


Change in women’s Roles-

Women’s roles are changing in today’s families they no more only relegate themselves to the age-old roles of taking care of the house and raising up children. Women in today’s times are working doing jobs that too on an equal footing with men and in some cases even earning more than men hence these changes have also resulted in men’s roles being changed as women alone can’t be expected to take care of the house and children as well as her do her job and pursue her career, thereby calling upon the men to also take part in these roles which women have done for centuries, but the refusal by men or their in-laws to accept this change in roles and adopt these changes may result in mental fatigue of the spouse or also physical fatigue and may overburden them. This has also been one of the core reasons for an increase in the divorce rates in India.


CONCLUSION

In India, the general belief is that that marriage is a lifelong union that only comes to an end with the death of either spouse. However, nothing remains static, the view has evolved with changing times. Compared to a decade ago, the divorce rates have surged due to the above-mentioned reasons. If this trend continues, divorce will become a rule and marriage an exception.


[1]Sec 13 (1)(i)(ib) Of HMA 1955 [2] AIR 2010 Chh 16. [3] Sec 13 (1)(i)(ia) Of HMA 1955 [4] AIR 1970 Mys. 232. [5]Sec 13(1)(i) Of HMA 1955 [6] Nirmal Chandra Dash v. Janaki Dash [7] Sec 13(1)(iii) of HMA 1955 [8] Act 6 of 2019, dt. 21-02-2019 [9] Sec 13 (1)(v) of HMA 1955 [10] MANU/TN/0478/2013 [11] Sec 13(1)(ii) Of HMA 1955 [12] 2006 (3) KLT 891 [13] Sec 13(1)(vi) of HMA 1955 [14] Sec 13 (1)(vii) of HMA 1955 [15] Sec 13(2)(i) of HMA 1955 [16] Sec 13(2)(ii) of HMA 1955 [17] Sec 13 (2)(iii) of HMA 1955 [18] Sec 13(2)(iv) of HMA 1955

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