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Divorce is the final and legal termination of marriage. It is often seen as one kind of mechanism for dealing with the pressures caused by marriage. Divorce is often resorted when it is found that continuing an unhappy and unsatisfactory marriage is not only imposing heavy costs on the entangled spouse but also on their children.
This project would at first deal with the social problems faced by a woman as a result of divorce, this according to the researcher is important for the subject in discussion as it would help him in putting forward his argument that there must much more flexibility in providing for the right of separate residence of a Hindu woman.
The researcher after this would discuss the legal background and would discuss Section 18(2) of The Hindu Adoption and Maintenance Act, 1956 in details. This lays down the conditions under which a wife may be awarded a separate residence. He would also discuss certain article of the Hindu Marriage Act, 1955 in order to explain these conditions in details. The researcher would also present a comparative case study while discussing each of these articles.
But due to the limited knowledge of the researcher, he is unable to provide newer grounds on which further discussion may be possible, but he would rather into view the issues that were put forward in other cases in this regard. The researcher hypotheses that the present provision for providing separate residence during marriage is still insufficient and much is required from the to improve this position.
"The general rule to be gathered from these is that a Hindu wife cannot be absolutely abandoned by her husband. If she is living a unchaste life, he is bound to keep her in the house under restraint and provide her with food and raiment just sufficient to support life; she is not entitled to any other rights. If however she repents, and performs the expiratory rites, she becomes entitled to all conjugal and social rights. But she always claim over a bare maintenance and residence."
India is a country with a diversified culture and a web of a number of religions. Each of these religions has their own personal laws, and these diversification sometimes gives rise to conflicts. A Hindu is someone who can be put under the ambit of the following point:
# All those persons who are Hindus, Muslims, Sikhs, Jains and Buddhist by religion, which also include the converts and the reconverts.
# All those persons who are not Muslims, Christians, Parsis or Jews who have domiciled in India and to whom no other law is applicable.
According to the Oxford Dictionary ‘residence’ means, to dwell permanently or for a considerable period of time, to have one’s settled abode, to lie in, or at a particular place. In the case of Kumud v. Jatindranath the court construed the meaning of a residence as, a place where a person eats, drinks, and sleeps or where a family eats drinks and sleeps. Physical presence and intention in a place for a sufficient period of time are essentials of a place to be termed as a residence. Another aspect that must also be look into while deciding a place to be a residence must be the duration of stay.
Domicile as a concept can be traced out of certain social needs. Law imputes domicile to every person and an adult has the independence of choosing his own domicile, or the domicile of choice. No person would be allowed to live without a domicile but also cannot have more than a place of domicile; this is called lex domicili or law of domicile. Section 3, of the Domicile and Matrimonial Proceedings Act, 1973; in England no person who is under the age of 16 cannot marry but if he is married lawfully under that age then he is entitled to a separate domicile. One has also to take into contention the idea that until a person acquires a separate and new domicile there is no way that he ca forfeit his domicile of origin.
In English Law, a woman who is married acquires the domicile that is shared by her husband and retained it throughout the covertures and whatever be the circumstances she was not able to acquire for a separate domicile. Thus in cases of mutual separation by agreement or even separated through a decree of judicial separation she had to continue be in the domicile of her husband. Even in cases of desertion, though the husband was allowed to attain a new domicile the wife had no remedy as such and had to continue in her husband’s domicile. Lord Denning, while giving a judgment in the case of Gray v. Formosa, said it, the last barbarous relic in wife’s servitude. But this position has been changed by the Domicile and Matrimonial Act, 1973, whereby a married woman may retain or acquire a new domicile like any other person.
But the sad part of the whole story is that Indian Law still follows the theories that were followed by the old English Law and thus underlies the principle that the wife would have the same place of domicile as the husband during marriage. Though in the Indian Succession Act, 1925, provides for two instances through which a woman can acquire a separate domicile such as that under decree of separation.
Divorce has been seen to exist in the Indian society from the very early ages in different forms. But the question that arises is that does the divorce decree automatically end a marital relationship. Years of emotional and physical closeness, mutual dependencies and ingrained habits of living together, these mutual bonds cannot be broken in a single stroke of a divorce. And the woman generally faces the entire social and mental trauma. Not only is she affected by the repercussions of the divorce but the incidents leading to the divorce also affect her greatly. It is during this time that she should be allowed to have a separate residence. Even during the cases of separation and desertion the wife must be awarded the right to a separate residence. Section 18(2) of the Hindu Adoption and Maintenance Act, 1956 puts down the grounds on which a wife may be awarded the right to a separate residence. This section confers a statutory right on a Hindu wife to live separately without forfeiting her claim for maintenance during the lifetime of her husband. She has to fulfill any one of the seven grounds provided under the section and must not cease to be a chaste Hindu.
With regard to the present scenario this project would put forward a comparative analysis of the reasons for which a Hindu woman must be awarded rights of a separate residence. The researcher though would not discuss the three cases separately, as he had planned to do during the rough draft, but would do so under the chapter of Legal Framework. He would also not discuss the topics of Judicial Separation and Restitution of Conjugal Rights in details as he found out during the course of further research that their separate mention would in no way serve the purpose of putting forward to the readers the concept of Separate Residence. Rather he would be concentrating on the Social-psychological problems of the divorced woman and then discuss the grounds on which such a claim can be made separately.
Socio-Psychological Problems Of Divorced WomenIn the world famous movie Apur Sansar the director had very beautifully portrayed he social position that a single woman has to face. To save Aparna from that ridicule Apu had to marry her.
Those couples whose lives are torn by family tensions maintain their formal and legal solidarity for reasons of religious faith, prestige, family pressures, children etc. But when the rift in the family becomes unbearable and the marital bond is irretrievably broken, there is the desire to escape the burden and responsibility of marriage ties.
Divorce is always a tragic end to a marital relationship. Divorce can be conceptualized in terms of multiple losses- loss of a valued social role, loss of an intimate relationship, loss of an adult household member, loss of a source of income, loss of familiar residence and regular contact with the children.
The problem generally arises of the women who have to lead a single-parent family or even as a single individual. One has to keep in mind the several years of emotional and sexual closeness, mutual dependence and the habits of a marital life cannot be struck off by a mere decree of the court. On the part of a woman it is very difficult to forget these dilemmas. She has to re-adjust to the new life which on part of her is no less than a challenge. Emotional consequence of the divorced women manifested in such behavioral symptoms as depression, loneliness, tendency to cry easily etc. Though there may be many cases where the woman has escaped from mental and physical cruelty that she was suffering from, but after the separation they always felt lonely due to the fact that they felt abandoned by the society. Women in India are dependant on their husbands for a emotional intimacy, which is broken by this divorce leaving a scar on the minds of the wife.
Most of the divorced women have a grief as real as though they have been widowed. The extent of mental and emotional trauma that can be created by divorce is immense, especially as the women are not prepared to deal with it. They find that the problems they thought were grave immediately after divorce were found to be less severe with time as other problems took in its place.
Apart from the personal mental trauma that they have to face due as a result of this separation but have to face certain amount of ridicule from the society itself. In many cases they even not accepted by her own parents. Divorced women are considered to be a burden on the parents as they think that a girl is a property of her in-laws after they have married her off, and even given a dowry. These women are continuously reminded of the fact that they are a financial burden to the family, and if she is living with her brothers, then she is subjected much more humiliation.
The communities also don’t receive these women very cordially. The divorced parties not only bring about shame to themselves but also to their families. It is a public confession of failure in a private, highly personal and highly intimate relationship.
A divorced woman even is treated to be without morals and thus her neighbours and friends also start to abstain from her as they think that mixing up with her would bring a bad name to them. These women are the topic of the gossips within the communities.
These divorced woman thus generally don’t socialize or owing to the ridicule fear to do so. They avoid the social functions as they feel that going there alone would be making a fool of themselves among all the married couples. Thus it becomes important on part of the court to provide her with a separate to give her a sense of independence and allow her to forget her stigma and shock that she may have faced.
A wife’s first duty to her husband is to submit herself obediently to his authority, and to remain under his roof and protection. It is a universal phenomenon that can be noticed is that women are largely dependant on the men for their economic needs. A divorce woman is in a much worker condition than a widow, financially and may lose everything that earlier secured her maintenance. Under Modern Hindu Law, the husband is generally made liable to maintain his wife both within marriage and after its termination, which is mainly based on the principles of social welfare and certain ancient traditions.
The customary divorce arrangements, the position of the wife for maintenance would not have become a matter for dispute. Even the decisions for the amount of maintenance was based upon the fertility status, the reason being that the woman had a option of remarrying and thus then can be maintained by her new husband. Some of the cases also witnessed the decisions where the divorced wife was asked to be protected by her parental home, reasoning being that she needed to be protected. Thus the wife under the old Hindu law was at the mercy of the court, which used very unusual reasons to grant her maintenance. Though, this position of the woman improved with the intervention of the colonial powers.
This chapter would deal mainly with the Section 18(2) of the Hindu Adoption and Maintenance Act, 1956 which lays down the conditions under which a woman can claim separate residence. They are as follows:
# If he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of willfully neglecting her;
# If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
# If he is suffering from a virulent form of leprosy;
# If he has any other wife living;
# if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
# If he has ceased to be a Hindu by conversion to another religion;
# If there is any other cause justifying her living separately.
This statutory provision allows the wife to live separately without forfeiting her claim for maintenance during the lifetime of the husband, whether she was married before or after the commencement of the Act. But a woman can only claim this right as a wife and not as a widow.
But a wife can claim such maintenance only if she is able to prove that the marriage was solemnized i.e. she must be legally married to the person against whom she is making the claim. But in the case of Obula Konda Reddy v. Peda Venkata Lakshmama the court held that the expression Hindu Wife as laid down in the Section 18 of the Hindu Adoption and Maintenance Act, 1956, would include a wife whose marriage is solemnized though the marriage is void.
Before this Act was passed in 1956, Section 19 of Hindu Woman’s Rights to Separate Residence and Maintenance Act, 1946 had also provided for the provision for the claim for the separate residence on the part of the wife. Though there has not been a major changes on the grounds on which the claim can be made, certain terminology has been changed.
Clause (1) of the previous Act laid down the condition that, if he is suffering from any loathsome disease not contracted has been replaced by if he is suffering from a virulent form of leprosy. Even such changes can be seen to the in the Clause (3) of the 1946 Act said, If he is guilty of desertion that is to say, of abandoning her without her consent or against her wish to which the word willful neglect has been added.
The first clause sets down the ground of desertion of the wife by the husband. Desertion generally means abandoning of the wife by the husband, under the following circumstances:
# Without reasonable cause
# Without her consent or against her wish
# Willfully neglecting her
Desertion has been defined in the Section 13(1) of the Hindu Marriage Act, 1955 as, Has not resumed cohabitation for a space of two years or upwards after the passing of a decree for judicial separation against that party. Thus, one can say that when the two spouses have been living separately due to the conduct of the other it is said to be desertion, but when two spouses live in two different places on the basis of their employment, it does not amount to desertion. But in most of the cases the desertion is determined from the existing circumstances. The test of preponderance of probabilities is sufficient to discharge the burden of proof so far as desertion is considered and proof beyond reasonable doubt is not necessary.
Under the matrimonial law, desertion is more of a mental act than a physical act. In its essence desertion is a total repudiation of the obligation of marriage or an abandonment of the deserted spouse with an intention to bring to bring the cohabilitation to an end. To constitute a case of desertion two elements are to be established. They are:
1. The factum of separation
2. The intention to bring the cohabilitation to an end (animus deserendi)
The animus deserendi must be permanent; as such a temporary intention would not lead to desertion. Furthermore, it is not necessary that both the fact of separation and animus deserendi occur in the same point of time. But a difference in this act lies from the Hindu marriage Act, as in this act it is not necessary to prove the animus deserendi. The presence of the factum of separation is sufficient to grant a decree for separate residence.
Thus one can infer that it is not necessary that desertion ender this section, it is not necessary that the husband should have any animus deserendi. In many cases even Constructive desertion is noticed. The constructive desertion is the expression used to show that the spouse who forces the other to leave him, is guilty of desertion even though the party going away fro the matrimonial home us the other party. But one can never say that casual acts of sexual intercourse to be a resumption of marital relationship, where the deserting spouse was a party to such acts. After understanding the topic of desertion we now move on to clause (b) which explains the area of cruelty.
Under clause (b) where a husband treats his wife with cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband, the wife is entitled to claim the right to separate residence and maintenance. The marriage among Hindus is treated as is a holy union of husband and wife. Cruelty in married in not confined to mere physical torture, there may be cruelty caused unintentionally by the husband mentally without any physical injury. Generally to determine cruelty on the part of the husband the courts are of the opinion that the conduct of the husband should be more serious than the ordinary wear and tear of married life. The cumulative effect of the conduct taking into consideration the circumstances and background of the parties have to be examination before reaching to a conclusion. The conduct must be such that that no reasonable wife would tolerate it nor would the wife would be called upon to endure it.
Legal cruelty is generally determined mainly under the following heads:
1. Violence or Harassment:Actual violence or threat to such violence of such a character as to give rise to an apprehension of danger of life, limb or health will undoubtedly constitute cruelty. Use of foul and abusing language against the wife or her family, amounts to quarrels tending to disturb the wife’s mental peace also amounts to cruelty.
2. Allegations of unchastity, adultery and impotence:Willful accusations made by the husband against the wife which are untrue and for which there can be no probable grounds can amount to cruelty. False charge of immorality against the wife is legal cruelty. The wife’s association persisted in with another woman; raising suspicion of her practicing lesbianism is cruelty.
3. Mental cruelty:Repealed conduct of the husband which causes disgrace to the wife or subjects her to a course of annoyance would lead to mental cruelty. Habitual nagging by the mother-in law too frequent to be tolerated leading to constant dissatisfaction and mental torture would amount to cruelty. The question of mental cruelty should be decided in light of the norms of marital ties of a particular society to which the parties belong, their social values, status of the parties, their environments.
4. Excessive demand of sexual intercourse or abstinence from the same:Willful denial of sexual relationship by a spouse when the other spouse is anxious for it would amount to cruelty. Though mere refusal of sexual intercourse does not per se amount to cruelty but such a constant refusal amounts to cruelty. But excessive sexual intercourse, which affects the health of the wife, would lead to cruelty.
Thus, if the husband does an act of such an character which is injurious to health, but is not necessary that it must have reached that point at which the injury has been caused, only if there is reasonable ground to believe that it will be persisted and the wife can apprehend a reasonable source of danger to her life then she can claim of separate residence under this Act.
The third ground on which a wife is entitled to live separately is where the husband is suffering from a virulent form of leprosy. Medical testimony can be of considerable assistance and even guidance but ultimately the question is one for the court and not for the experts and evidence of experts does not relieve the relieve the court from the obligation of satisfying itself beyond reasonable doubt on the question whether leprosy from which the person suffers is both of virulent and incurable form. The term virulent is not a medical term and thus can be interpreted by referring to the meaning given to it under Hindu law for excluding a person from inheritance. But unlike the 1946 Act the wife cannot claim separate residence if her husband is suffering from any other form of venereal disease.
Leprosy is considered to be such a dangerous disease that it affects adversely even the marital relations. The term ‘leprosy’ is generally interpreted as malignant or infectious. Under Section 10(1) of the Hindu Marriage Act, 1955 either party to a marriage is entitled to judicial separation and under Section 13(1)(iv) of the said Act, either party to a marriage is entitled to seek divorce if the other spouse is suffering fro a virulent form of leprosy. But the distinguishing factor between these two Acts is that for the purpose of judicial separation the wife has to prove that the husband’s illness is leading to a detriment to her life, but such a thing is not necessary for the purpose of this Act. This Act does not though specify any limitation period till which the wife can claim the separate residence, but it is always said that as soon as she comes to know about this disability of her husband.
The main reason to incorporate this ground in the Act is because this disease itself is so dangerous that leads to the contracting of the disease by any other person leaving in constant touch with the patient, and thus automatically calls for a right of separate residence.
Under clause (d) of this section a wife gets a right to live separately if the husband has any other wife living. Under the old law, second marriage by the husband was not a ground under which the wife could have claimed separate residence.
The term ‘any other wife living’ has been interpreted by the courts quite varied interpretation. By the word ‘living’ does not mean living in the same house as the husband, the fact that the wife is alive, would give rise to a cause of action on the part of the second wife to claim maintenance. Though there have been cases like that of Annamalai Mudaliar v. Perunayee Ammal where the phrase was interpreted to be meaning that the other wife must be living in the same house with the husband. But in another case of Mani Bai v. Mukundarao the court disagreed with the Mudaliar’s decision. In cases of a voidable marriage under section 12 of the Hindu Marriage Act a marriage is always held to be valid, if it is recognized as so by the court. Thus even the second wife would have a right to claim maintenance and separate residence.
One may feel that this clause gives rights to the second wife to deny to reside with the husband in case his first wife is also living with him, but this assumption is quite wrong, due to the fact that even the first would have the ground to claim a separate residence. In many cases it has been seen that the husband has married again with the consent of his first wife because there was no children from the first wife. The court in these cases has also allowed the second wife to claim a separate residence, but the claim of the first wife was not acknowledged.
Thus, this ground provides the wife to refuse to live with her husband, who has another wife; it is not improper for a wife to do so. Under the next clause the wife can claim a separate residence under the ground, if her husband has a concubine who is brought to live in the same house or the husband resides with the concubine when she resides elsewhere. A concubine is known in Hindu Law as avaruddha Stree, which means lesser wife. Though she is not treated as a prostitute but it is indicative of a woman attached to or keeping of a man either on amorous or for other reason and who is not bound by bonds of marriage. The Privy Council held that these ‘Avaruddhastree’ would be entitled to maintenance also. But a wife of a void marriage can never be compared to a concubine. But even if the first wife of a void marriage is given a status of a concubine, the first wife cannot claim maintenance under this clause unless the legal requirements are fulfilled. But unlike a concubine the wife of a void marriage can always apply for maintenance under Section 25 of the Hindu Marriage Act.
The term ‘resides’ has been many times construed by the court to mean dwelling place and indicates the place where somebody stays permanently. The phrase habitually resides has also be interpreted by the court in very many ways. By this term the emphasis is more placed on habitually resides, the emphasis is more on the word ‘habit’. The insistence if placed on the word ‘residence’ would ruin the purpose of this clause as this would mean that when the husband moves away from one place to the other and keeps the concubine in the previous residence and thus escape from the ambit of this clause. Thus for applying this clause one has to apply it in such a way so as to mean, when the husband lives with the concubine the course of conduct must be spread over a longer period, his mental attitude in visiting the place of the concubine, his assertions, his involvement with such other woman, have to be considered for determining whether such a husband habitually resides with the concubine or not.
Section 18(2)(f) of this Act entitles a Hindu wife to live separately if the husband is converted to another religion. Under Section 13(1)(ii) of the Hindu Marriage Act, conversion to any other religion amounts to a ground for divorce. But this religion must not be such that he would still be considered a Hindu (e.g. if he gets converted to Jainism). A mere theological allegiance to the Hindu faith by the person born in another faith does not convert him into Hinduism, thus even if a person is by birth a Hindu, but fails to observe all the obligations of Hinduism, then he does not cease to be a Hindu. A husband who converts to another religion cannot claim that as he has converted to another religion, this law would not govern him. Thus the conversion of a husband automatically provides a wife to claim separate residence and maintenance as well from the converted husband.
Under the next and the last sub section, the Hindu wife would be entitled to live separately from her husband without forfeiting her claim to maintenance, if there is any cause justifying her living separately. The expression ‘any other cause justifying her living separately’ looks into the fact the husband’s home is rendered miserable. It is now well settled that to constitute a cause justifying living separately, the conduct of the husband must be grave and weighty and which may cause annoyance to the wife or resented by her does not amount to reasonable cause. The conduct should be such that makes cohabitation virtually unendurable. Generally the court has to find out the root cause and the genesis of the problem that eventually culminated in their separation and the judicial mind has to be applied to resolve this crucial question. The grounds under which such a ground can be claimed are as follows:
# Intentional neglect
# False Allegation of Chastity
# Physical Torture
# Denial of marriage
# Comparison with any other woman
This clause is related to Section 9 of the Hindu Marriage Act. Sec. 9 says that if a spouse has withdrawn from the society ‘without any reasonable’ excuse then the other spouse is entitled to claim restitution of the conjugal rights. The grounds, which would be available to a wife to defeat the petition to her husband for the restitution of conjugal rights, would also entitle her to live apart from her husband and claim maintenance. Certainly a husband under Section 9 can claim the restitution of conjugal rights if such grounds prevail but he can never use it as a defense to the not granting of separate residence and maintenance to his wife.
Law zealously safeguards the right of maintenance of a wife. Every effort has been made to ensure that the wife does not lose her right to maintenance for petty reasons. She already loses the best of her life when the husband stops the flow of his natural love and affections towards the wife but if she loses the right to maintenance also, she will have nothing but frustration for which she will curse the society and the law.
The Legislature has laid down certain situations in clauses (a) to (f) of the sub-section 2 of Section 18 of the Act under which the wife will have the right to live apart from her husband and still claim maintenance in order to protect the rights of this single woman.
It becomes difficult on the part of a single woman to cope up with the social and economic pressures as a result of this divorce. She is constantly looked down upon and results into her alienation from the society.
Though the Hindu law provides for a separate residence for the wife under such grounds but such a provision has not been recognized by the Muslim Law. The point that one would surely realize that both these women have to experience the same type of ridicule after a marriage is dissolved and maybe the Muslim Women would have to face much more so, but they are not given this claim. Here one can see that there arises for a Uniform Civil Code which would provide for such a claim to women of all religions without making divisions, as the religions that a woman belongs to may differ, but this break of the holy union always leads to a lot of social and psychological sufferings.
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14. Menski, Werner,(2003), Hindu Law-Beyond Tradition and Modernity, Oxford University Press, New Delhi.
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