Divorce:one of the most undesirable phases of marriage. It is the legal process
of dissolving a marriage and freeing the partners from the bond. The concept is
not new and has been present in India since ancient times. In the Vedic times,
an option of divorce was available for both men and women, on specific grounds.
However, the scenario is quite different now. With the changing pattern of
marriages and lifestyle, the cases of divorce have witnessed a huge increase.
India has faced some critical challenges with respect to its socio-economic and
political background, leading to the reform of divorce laws in the country. This
blog aims to provide you with a comprehensive analysis of divorce in India,
relevant cases, and legal remedies available for the process. So, fasten your
seatbelts and join me in this journey of understanding the intricacies of
divorce in India.
In India, divorce is governed by a number of different laws, depending on the
religion of the couple. The most common laws governing divorce in India are the
Hindu Marriage Act, 1955, the Special Marriage Act, 1954, and the Indian Divorce
Act, 1869.
Types of DivorceTypes of Divorce: Divorce in India can be categorized into three types: contested divorce, mutual divorce, and void and voidable marriage. Contested
divorce, as the name suggests, is when one spouse files for divorce and the
other contests it. This can lead to a lengthy and bitter legal battle.
On the other hand, mutual divorce is when both spouses agree on the terms of
separation and file a joint petition. It is a less time-consuming and more
amicable process.
Void and voidable marriages are those that are legally invalid or can be
annulled. For instance, if the marriage was done forcefully, without consent, or
if either party was already married, it can be annulled by the court.
Each type of divorce has its own procedure and legal implications. It is
important to understand these before deciding to file for divorce.
Factors Leading to Divorce:
Divorce can be a heart-wrenching experience for those involved. But what leads
to it? In India, factors leading to divorce are varied. Let's take a look at a
few common ones: Infidelity and extramarital affairs. Nothing breaks a
relationship quite like finding out that your partner has been cheating on you
with someone else.
It can lead to a complete loss of trust and respect.
Incompatibility in nature. Sometimes, two people can just grow apart. Maybe
they're too different, or maybe their goals and aspirations no longer align.
Whatever the reason, if they can't find common ground, it can lead to divorce.
Lack of trust. Trust is the foundation of any successful relationship. So if
there's no trust, the relationship is doomed to fail. And rebuilding trust can
be a difficult, if not impossible, thing to do. Financial issues. Money problems
are a common cause of marital strife. Whether it's not having enough money, one
partner being too controlling with finances, or simply having different
priorities, financial issues can lead to divorce. But it's important to remember
that every relationship is different. What might lead one couple to divorce
might not even be a blip on the radar for another.
Some of the most common
grounds for divorce in India include:
- Adultery
- Cruelty
- Desertion
- Conversion
- Mental disorder
- Venereal disease
- Irretrievable breakdown of marriage
Relevant Cases:
India has seen several landmark judgments and cases related to divorce. Let's
take a quick look at a few of them in this section:
Mohanlal v. Smt. Pushpaben (1973):
This case established the principle that the irretrievable breakdown of marriage
is a ground for divorce in India.
Mohd. Ahmad Khan v. Shah Bano Begum (1985):
The Shah Bano case became a landmark in Indian legal history, setting a
precedent for maintenance rights for Muslim women. Shah Bano, a Muslim woman,
was divorced by her husband and sought maintenance under Section 125 of the
Criminal Procedure Code. The Supreme Court initially ruled in her favor, but due
to political pressure, the government passed the Muslim Women (Protection of
Rights on Divorce) Act in 1986, limiting the maintenance duration for Muslim
women. This case highlighted the need for a uniform civil code to ensure equal
rights for women across all religions.
Sharda v. Harishchandra (1988):
This case held that the court can grant a divorce even if the couple has not
been living separately for the required period of time, if the marriage has
irretrievably broken down.
Sarla Mudgal v. UOI (1995):
In the Sarla Mudgal case, the Supreme Court addressed the issue of Hindus
converting to Islam to practice bigamy, thus avoiding legal consequences for
polygamy. The court held that a Hindu marriage could only be dissolved under the
Hindu Marriage Act, even if one spouse converts to Islam. This ruling helped
protect the sanctity of marriage and prevented individuals from exploiting legal
loopholes to practice polygamy.
K.S. Puttaswamy v. Union of India (2017):
This case held that the right to privacy is a fundamental right under the Indian
Constitution, and that this right includes the right to a divorce.
Kusum Sharma vs Mahinder Kumar Sharma (2020):
The court held that a woman's career and income could be considered while
calculating alimony and maintenance to be given to her. This meant that women
were entitled to alimony not only to maintain their daily needs and expenses but
also for professional pursuits.
Remedies and Legal Procedure:
In case of divorce in India, the law provides various remedies to both parties
to ensure a fair and just settlement. Under Section 125 of the Code of Criminal
Procedure, a woman is entitled to seek maintenance from her husband after
separation. Child custody laws are governed by the Hindu Minority and
Guardianship Act and the Guardian and Wards Act, which aim at ensuring the best
interest of the child.
Mediation and Counseling:
Mediation and counseling can be useful tools for resolving disagreements and
miscommunications between spouses. Better communication, comprehension, and
perhaps reconciliation may result from advising couples to seek mediation before
starting divorce proceedings.
Strengthening Family Support Systems:
Promoting more robust family support networks can aid people in coping with the
emotional stress associated with divorce. Resilience and emotional healing can
be promoted for impacted family members by offering counselling and support
groups.
Awareness and Education:
It is essential to raise awareness of the effects divorce can have on children,
families, and communities. Divorce rates may be lowered by educational
initiatives that support wholesome relationships and conflict resolution
abilities.
Reforming Divorce Laws:
Periodically evaluating and amending divorce laws is something the government
should think about doing to make sure they reflect society developments and
equitably address the interests of both sexes. To promote better clarity and
equality in divorce matters, it might also be investigated to create a more
complete and consistent civil code..
Challenges and Solution
Divorce is often accompanied by a lot of social stigma in India. People still
hold an orthodox mindset and view marital discord as a failure or blame the
partner for not being able to keep the marriage intact. But it's time to
normalise separation and view it as a way to get out of an unhealthy or abusive
relationship. Another adverse impact of divorce is on children. It can have a
lasting psychological impact on them and affect their behaviour and well-being.
However, encouraging healthy co-parenting, providing emotional support, and
keeping the children away from conflicts can help reduce the adverse effects of
separation. Mediation and counselling are essential for couples contemplating
divorce. Counselling can help them work through their issues and improve
communication, while mediation can help reduce conflicts and ease the legal
process.
It's better to get professional help than to drag a hopeless marriage, risking
emotional and financial damage. Divorce is a significant life event that
involves a lot of legal and emotional complexities. While it can be difficult to
navigate, knowing your legal options and getting the necessary professional and
emotional support can make the process smoother and less painful.
Conclusion
In India, divorce is a complicated topic with wide-ranging effects. While
divorce is allowed by law, it's important to look into other options like
counselling, mediation, and support networks to lessen its negative impacts.
Relevant cases have had a big impact on how the law views divorce and women's
rights. India may work towards more equal and amicable outcomes for couples
seeking divorces by promoting awareness, education, and regular revision of
divorce laws, ultimately improving the fabric of society and families.
Please Drop Your Comments