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Written by: Himaja Challapalli
Introduction
In India, marriage is not just a social arrangement between two adults, but also considered as a sacred institution. In this sacrament of marriage which is a lasting commitment for a lifelong partnership of two individuals, there arise situations personally and socially such as lack of communication, varied opinions, cruelty, extramarital affairs, domestic violence, dowry-related abuse, etc. which leads to matrimonial disputes. Any minor issues should be resolved by having a healthy discussion and sometimes it requires compromising or by mediation but issues such as domestic violence, dowry harassment that injures the person mentally or physically should not be tolerated. Recently, during the COVID-19 lockdown in 2020, we have witnessed an alarming increase in domestic violence cases. 86% of the women who experienced violence never sought aid, while 77% of the victims did not even mention the incident of the same. However, 14.3% of the victims sought help from sources, but only 7% of them contacted the appropriate authorities.[1] The Constitution of India recognizes the right to equality, the right to life, and freedom as fundamental rights and also guarantees the protection of the rights of women.[2] Any violent abuse or injustice should not be tolerated and one must reach out to the relevant authorities. Thus, marriage is subject to the laws of the land so to protect the individuals’ rights for secure and peaceful integrity.
Rights of married women
Every woman must be aware of the legal rights of a married woman and the reliefs that are available for domestic violence etc. The legal rights of the married woman include 'Right to live in the matrimonial house, even after the husband dies; Right to report Domestic Violence under Protection of Women Under Domestic Violence Act, 2005; Right to divorce; Right to seek maintenance and alimony under Sec 18 of the Hindu Adoption and Maintenance Act, 1956[3]; Right to claim Child’s custody as under Guardian and Wards Act of 1890, both the parents have equal custodial rights. Indian Penal Code,1860 defines and prescribes punishment for cruelty where a woman is subjected to cruelty by husband or relative of husband. Cruelty is also a ground for divorce under Hindu Marriage Act, 1955.
Role of mediation
According to Black’s Law Dictionary, Mediation is defined as "A method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties to reach a mutually agreeable solution." Sec.89 of the Civil Procedure Code gives 'Settlement of disputes outside the Court’, where one such is Mediation.[4]When there is a scope for settlement of an issue, it is advisable to settle through mediation which is an effective method of alternative dispute resolution and has got legal recognition. In this way, future relationships can be preserved, mediation is preferred when it can be the solution for peace.[5]
Dowry Prohibition Act, 1961
The practice of dowry has become illegal in India since 1961 through Dowry Prohibition Act, 1961, yet it is still prevalent. But one must be aware of the Act so that one can seek protection from legal institutions.
Under Section 3 of Dowry Prohibition Act, which states 'Sec3. Penalty for giving or taking dowry’, whoever gives or takes or abets the giving or taking of dowry shall be punishable as prescribed under the Act. The presents which are given at the time of marriage without any demand having been made do not come under the dowry. The presents should not exceed the value of the financial status of the person by whom, or on whose behalf, such presents are given and also a record of the list of presents should be maintained as given under the act.
Demanding dowry is also prohibited as given under Sec 4 of the Dowry Prohibition Act and is punishable.
According to Section 8-A of the Dowry Prohibition Act, when a person is prosecuted for taking or abetting the taking of any dowry under Section 3 or demanding the dowry under Section 4, 'the burden of proving that he had not committed an offense under those sections shall be on him.[6]
The Protection of Women from Domestic Violence Act, 2005
Women are constantly being subjected to violence in households by husband and in-laws which harms their physical or mental health. The act extends to the protection of such women who are being threatened by physical, emotional, and economic abuse.
1. Section 3 of the Act clearly defines domestic violence, where the respondent harms the physical or mental health or causes physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse, harasses or harms for unlawful demand for any dowry or any valuable security or restricts to access to the resources which the aggrieved person is entitled to use by the virtue of the domestic relationship including access to the shared household.
2. One can inform to Protection Officer when the act of domestic violence has been committed.
3. The aggrieved person has the right to be informed by Police officers, service provides about 'her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act, and of her right to free legal services under the Legal Services Authorities Act, 1987'.
4. Chapter IV of the Act gives 'procedure for obtaining orders of reliefs' which includes the 'right to reside in a shared household under Section 17, monetary reliefs under Section 20, Compensation orders under Section 22'.[7]
The Hindu Marriage Act, 1955
The Hindu Marriage Act, 1955 is passed to secure the rights of marriage for the bride and groom who are Hindu and have a sacred bond of marriage. The matrimonial reliefs have been provided in the Hindu Marriage Act, 1955 which are the restitution of conjugal rights under Section 9, Judicial separation under Section 10, Classification of marriages into the void under Section 11, and voidable under Section 12 for nullity of legally irregular marriages, and divorce under Section 13 of the Act.
The act laid down the grounds of divorce and are as follows:
Section 13 (1) (i) Extramarital relations - When a person had voluntary sexual intercourse other than his or her spouse.
Sec 13 (1) (i-a) Cruelty - When a person treats his spouse with cruelty.
Section 13 (1) (i-b) Desertion - When husband abandons his wife for at least 2 years with no fault of hers.
Section 13 (1) (ii) When husband ceased to be a Hindu by conversion to another religion.
Section 13 (1) (iii) When one has an unsound mind or suffering from a mental disorder where one cannot reasonably expect to live with.[8]
Conclusion
The matrimonial laws in India including laws on marriage, divorce is governed by the personal laws of the parties depending on religion such as the Hindu Marriage Act 1955, and also through the Special Marriage Act 1954. Marital disputes arise when one lacks communication, commitment, etc., such matters should be dealt with care through communication or mediation since preservation of marriage should be considered as divorce leaves an impact on the parties and families. When it comes to domestic violence and such other cases, no woman should bury in the silence and face unfairness happening to her. One should step out of such toxic relations, raise her voice and reach out to the relevant authorities. These laws and acts are there to protect and give relief for the injustice caused. In conclusion, it is important to be legally aware of rules and acts to bring a necessary change in society.
[1]Vignesh Radhakrishnan, Sumant Sen, NareshSingaravelu, “Data | Domestic violence complaints at a 10-year high during COVID-19 lockdown”, The Hindu, Jun. 22, 2020 [2] P.M. Bakshi, The Constitution of India (Universal Law Publishing Co., New Delhi, 2011) [3]The Hindu Adoptions and Maintenance Act, 1956 (Act 78 of 1956) [4]The Code of Civil Procedure, 1908 (Act 5 of 1908) [5] N. Bhagya Lakshmi, “Mediation: Marital conflict resolution therapy” 73 Bharati Law Review (2016). [6]Dowry Prohibition Act, 1961 (Act 28 1961) [7] The Protection of Women from Domestic Violence Act, 2005 (Act 43 of 2005) [8]The Hindu Marriage Act, 1955 (Act 25 of 1955)