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DIVORCE: A Cessation of a Family

Updated: Feb 20, 2022

Written by: Vaishnavi Jetti



The family is generally regarded as a major social institution of man’s social life. A Family is a unit of society created by the sacred bonding of the two through marriage. Though the family structures have changed over the years they have always retained the sacredness of the bond and the purpose of the marriage and the family. Gender roles have blurred, traditional values are being questioned, and even traditional definitions and conceptualizations of ‘family’ have changed due to the sudden changes in society. The increased acceptance of divorce over the past 40 years has influenced the major changes in the attitude on marriage and also the family life. Since the 1970s, the divorce rate has been increased twice where the children's attitude on the commitment has differed from that of their parents.


Grounds for divorce in India[1]


There are around 16 different reasons why divorces are granted in most of the western countries. India has different divorce laws for different religions. Almost all religions in India have their own laws on divorce which are used among themselves. For inter-cast or inter-religion marriages there exists separate laws. Hindu (including Sikhs, Jains, and Buddhists): Hindu Marriage Act, 1955, Muslims: Dissolution of Muslim Marriages Act, 1939, Christians: Indian Divorce Act, 1869, Parsis: The Parsi Marriage and Divorce Act, 1936, Inter-Cast or Inter-Religion: Special Marriage Act.


1. Section 13 of the Hindu Marriage Act, 1955[2] recognises nine fault grounds of divorce with a further four additional fault grounds available to the wife alone under section 13(2) of the Hindu Marriage Act,1955.

2. Section 2 of the Dissolution of Muslim Marriages Act 1939,[3] which contains nine fault grounds where the wife alone can sue.

3. For Christians, subsection 10 of the Indian Divorce Act, 1869 contains grounds for divorce.

4. The Parsi Marriage and Divorce Act, 1936[4] contains ten fault grounds of divorce on which either spouse may seek divorce.

5. Section 27(1) of the Special Marriage Act, 1954[5] contains ten fault grounds of divorce on which either spouse can seek divorce and Section 27(1A)[6] contains two fault grounds on which the wife alone seeks dissolution of marriage.


In Y. Narasimha Rao and Others V Y. Venkata Lakshmi and Others,[7] it was held that the marriage which took place in India can only be dissolved by either the customary law or the statutory law enforceable in India. Therefore, the only law that can be applied in matrimonial disputes is the one under which the parties got married. However, there will be confusion in relation to the parties who are residents abroad but came to India for the sole purpose of solemnization of marriage. So, when these parties, residents of abroad but got married under Indian Laws if enter into matrimonial disputes then it will be unclear whether the divorce petition will be maintainable in India or not.


THE DIVORCE ACT, 1869[8]


Grounds for dissolution of marriage:


Whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, if any marriage solemnized may ion a petition filed in the District Court by either the husband or wife can be dissolved on the ground that since the solemnization of the marriage the respondent:


1. has committed adultery;

2. by converting to another religion, he/she has ceased to be a Christian;

3. for a continuous period of not less than 2 years immediately preceding the presentation of the petition has been incurable of unsound mind;

4. has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form;

5. hasn’t been heard of being alive for a duration of seven or more years by those who could have heard of the respondent’s being if the respondent had been alive;

6. has wilfully refused to consummate the marriage and the marriage has not therefore been consummated;

7. has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the respondent;

8. immediately preceding the presentation of the petition has deserted the petitioner for at least two years;

9. has treated the petitioner with such cruelty in order to cause a reasonable apprehension in the petitioner’s mind that it would be injurious or harmful for the petitioner to live with the respondent.

The wife can also file a petition for the marriage dissolution on the grounds that the husband has been guilty of rape, sodomy, or bestiality since the solemnization of the marriage.


Dissolution of marriage by mutual consent:


1. With respect to the provisions of the Act and the rules, a petition for dissolution of marriage can be filed in the District Court by either of the parties. Whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living apart for a duration of two years or more, or they haven’t been able to live together where they have mutually agreed for the marriage dissolution.

2. If any step is not made by either of the parties, either earlier than six months or after the eighteenth month of the mentioned date which will be mentioned at the time of filing the petition. If in case, the petition was not withdrawn by either of the parties then the court will be satisfied after hearing the parties and after making an inquiry if they think that a marriage has been solemnised and if the affirmations in the petition are true, the court will pass the decree declaring the marriage dissolution with effect from the date of the decree.


Indian courts recognise divorce decree granted by foreign courts and which is also considered to be valid and binding for all the purposes if they satisfy the conditions provided in section 13 of the Civil Procedure Code. If the provisions of Section 13 of Civil Procedure Code are satisfied then the divorces granted in the Foreign Courts are recognised in India.


In Smt. Satya V Teja Singh,[9] the Supreme Court derecognised the decree of divorce of the foreign country on the ground that one party obtained the divorce decree by fraud on the foreign court by representing incorrect jurisdictional facts. The Apex Court held that, in order to get a divorce, the concept of the residence does not include a temporary residence. It was held that marriages that have taken place in India can be dissolved only under either customary or statutory law which are enforceable in India. Therefore, when a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is in defiance of the law and is unenforceable under clause (f) of Section 13 of The Civil Procedural Code, since such judgment is in breach of the matrimonial law in force in India.


Power to court to pronounce decree for dissolving marriage:


If the court is satisfied with the evidence of the case which has been proved by the petitioner and if it doesn’t find that the petitioner has been in any manner accessory to or conniving at going through the said marriage form, or the adultery of the other party to the marriage, or if the petitioner is presented or prosecuted in collaboration with the respondent, then the court shall pronounce a decree declaring that such a marriage is to be dissolved. The court may not pronounce such decree if it finds the petitioner guilty of adultery during the marriage or in the opinion of the Court that the petitioner has been held guilty for an unreasonable delay in presenting or prosecuting or for cruelty to the other party in marriage, for deliberate separation of himself or herself from the other party before the complaint of adultery, or without any reasonable excuse, or any kind of wilful neglect, or misconduct towards the other party as has conducted to the adultery.


Children relation with Divorced Parents:[10]


Parental divorce is linked to relatively poor parent-child relations in adulthood. Comparing the children with married parents and that of divorced parents, the children with divorced parents have less frequent contact with their parents, also they exchange less assistance with their parents, and they also describe their relationship with their parents with less positivity. Parental divorce and remarriage are also linked to early separation from home with children, a different indicator of conflict between parents and children. The turmoil that precedes and follows a marriage disruption is presumably causing a weak relationship with parents. Research consistently shows that divorce is associated with fewer expressions of parental affection, greater parental harshness in dealing with children's misbehaviour, and more inconsistency in dispensing discipline. Although divorce appears to weaken children's ties with both parents, most studies indicate that the consequences are stronger for fathers than for mothers, presumably because most children reside with mothers following marital dissolution.


Conclusion:


The rapid change in the social and family context, especially for young people, has posed new obstacles. The decline in harmony can also be associated with values that emphasize individualistic, materialistic, and self-oriented goals over family well-being. In addition to increasing the frequency of divorce in Indian society, the causes of divorce have been also assumed as a new dimension or acquired new impetus if not completely changing. Divorce is a way of freeing a lot of women from their marriage bond with the progress of time, the spread of education, and initiatives by human rights activists. Couples who are struggling to match their level of compatibility increasingly apply for divorce to restart their lives. In a modern society, marriage dissolution comes from the concept that living an autonomous life is preferable to maintaining marriages in terms of personal welfare. As a decade ago, divorce was considered as one of the dirtiest social phenomena in India is now comfortably accepted for silly reasons. Some people regard this as an indication of social and moral disruption, with the potential to break up a marriage and societal foundations.


[1]Pinto Vincent and Laveena D’Mello, “Changing Trends of Divorce in India: Issues & Concerns”, 3, IJMTSS 155 (2018). [2]Section 13 of the Hindu Marriage Act, 1955. [3]Section 2 of the Dissolution of Muslim Marriages Act 1939. [4]The Parsi Marriage and Divorce Act, 1936. [5]Section 27(1) of the Special Marriage Act, 1954. [6] Section 27(1A) of the Special Marriage Act, 1954. [7]Y. Narasimha Rao and Others V Y. Venkata Lakshmi and Others (1991) 3 SCC 451. [8] The Divorce Act, 1869. [9]Smt. Satya V Teja Singh (1975) 2 SCR 1971. [10]Paul R. Amato and Juliana M. Sobolewski, “The Effects of Divorce and Marital Discord on Adult Children’s Psychological Well-Being”, 66 ASR 904 (2001).

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