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Divorce: Know Your Rights

Marriage as an institution plays an enormous role in society, family structure, religion, and even politics. Aside from these cultural relationships, marriage also serves meaningful functions to the individuals committed to it. According to Hindu Law, marriage is a sacrament, that is, it serves to establish a sacred tie between the husband and wife. India is a land of diversity where every individual has a constitutional right to follow any religion of their choice.

There are different personal laws according to specific religions that lay down marriage laws in India. The bond between spouses has certain social-legal implications. Marriage is a sacred arrangement in which two individuals promise to respect each other and their families, marriage offers partnership- someone with whom you can share financial and parenting responsibilities, household chores, and maintenance. The success of a marriage depends upon the understanding, love, respect, and affection between the couple.

Abusive Marriage

Marriage is one of the major events of any individual's life. According to the National Family Health Survey (NFHS), nearly 38% of women in India suffer from spousal violence. Any act that harms or endangers the health, safety, life, limb, or wellbeing (mental or physical) of the victim, or tends to do so, and includes causing:
Physical abuse, sexual abuse, verbal abuse, emotional abuse, and economic abuse is regarded as domestic violence.

Facing violence for years can leave a physiological impact on the individual.

In the case of Smt. Haimanti Mal v/s The State Of West Bengal Calcutta high court has awarded Rs. 1,00,000 as compensation to the wife for mental agony suffered due to the conduct of the husband. Section 22 of the protection of women from domestic violence act 2005 states compensation and damages for injuries including mental torture and emotional distress caused by the act of domestic violence committed by the respondent.

In the case of Ajay Kumar v. Lata alias Sharuti
In accordance with the proviso to the section 2(q) of the Protection of Women from Domestic Violence Act, 2005, indicates that both, an aggrieved wife or a female living in a relationship like a marriage may also file a complaint against a relative of the husband or the male partner, as the case may be. This also helped those women who are cohabiting with their partner without getting married and their partners are abusing them either mentally or physically.

Divorce: A Way To Get Relief From Abusive Marriage

In India divorce and separation are perceived to be relatively rare events. Divorce is one of the most traumatic situations of any marriage. A couple has to go through many emotional breakdowns before deciding to get divorced. Divorce is the legal dissolution of Marriage. Seeking divorce in India is a long-drawn-out legal affair where the minimum prosecution period is six months.

India is a land of varied religious communities having their laws of marriage and divorce. the supreme court in a case said that divorce can be granted to a couple if a marriage is unworkable, emotionally dead, and beyond salvage. In a landmark case of irretrievable breakdown Neelu Kohli v/s Naveen Kohli, the court stated that it is sufficient that if the cruelty is of such a type it becomes impossible for spouses to live together.

But it is more surprising to know that the divorce rate in India ranks lowest among all the countries of the world. 1 out of 100 Indian marriages ends up in a divorce which is quite low in comparison to other countries. All Hindus and Buddhists, Sikhs, and Jain can seek divorce under the Hindu Marriage act, of 1995. Both men and women can get divorced on various grounds given under the law.

In the Hindu Marriage act grounds of divorce are given under sec 13:

  • Extra Marital Relations [section 13(1)(i)(a)]: if the husband cohabits with another woman after the marriage has taken place, the wife can ask for a divorce
  • Cruelty [section 13 (1)(i)(b)]: if the husband treats her wife with physical or mental cruelty, the wife can ask for a divorce.
  • Conversion [section 13(1)(ii)]: if the husband converts to another religion wife can ask for a divorce
  • Insanity [section 13 (1)(iii)]: if the husband has been incurable of unsound mind or has been suffering from a mental disorder, the wife can ask for a divorce.
  • Venereal diseases [section 13(1)(v)]: if the husband is suffering from venereal disease, the wife can ask for a divorce.
  • Renunciation from the world [section 13 (1)(vi): if the husband renounces the world wife can ask for a divorce.
  • Presumption of death [section 13 (1)(vii)]: if the husband is unheard of for 7 years it will be a presumption of death in such a case wife can get a divorce from the court.
  • Wife's special grounds for divorce [section 13(2)]
  • Pre-act polygamous marriage of the husband [section 13(2)(i)]
  • Acts of rape, sodomy, or bestiality by husband [section 13(2)(ii)]
  • Non-resumption of cohabitation after decree/order of maintenance [section 13(2)(iii)]
  • Wife was married before she was 15 years old and decided to repudiate the marriage after attaining the age of 15 years but before attaining the age of 18 years
These are the grounds for divorce provided for Hindus. Same as the Hindus on the other hand Muslims, Christians, and Parsis communities have their laws governing marriage and divorce. In Muslim law, both parties to the marriage contract have an opinion for divorce, but the husband's right in this respect is much greater than that of the wife.

Spouses belonging to different communities and cast can seek divorce under the Special Marriage act, of 1956. Grounds for divorce under the special marriage act are given under sec 27 which are as follows:
  1. Subject to the provisions of this Act and the rules made there under, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent:

    1. Has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
    2. Has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
    3. is undergoing a sentence of imprisonment for seven years or more for an offense as defined in the Indian Penal Code (45 of 1860);
    4. Has since the solemnization of the marriage treated the petitioner with cruelty; or
    5. Has been incurable of unsound mind, or has been suffering continuously or intermittently from a mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Rights of women after Divorce:

Alimony and Maintenance in Divorce: Dissolution of marriage cannot end sacred alliances so easily because the responsibilities are still there to comply with. A man is obligated to provide the allowance for the sustenance of his wife, children, and parents. Section 125 of CrPC states the order for maintenance of wives children and parents some personal laws govern these maintenance and alimony rules.

This ensures avoiding vagrancy and destitution of the wife in the event of separation or divorce. Maintenance and alimony both come under the right of a woman for financial support purposes. A woman who is not in a condition to maintain herself can claim financial support from her husband.

The financial support can be provided in particular scheduled payments or the amounts can be given in lump sum amounts. In the case of Binita Das v/s Uttam Kumar The Delhi high court held that the Magistrate cannot deny interim maintenance to the wife only because she has earning capacity or is a qualified person.

In the case of a special marriage act rule will be a little different it is the wife only who can claim maintenance. In the Hindu marriage act the court will decide the seeker of alimony husband can also seek maintenance if he is not competent enough to maintain himself.

A leading case of Mohd Ahmed Khan v/s Shah Bano Begum and is one of the most controversial maintenance lawsuits in India in this case SC granted maintenance to a divorced Muslim woman irrespective of what Muslim personal law says. SC held that section 125 of CrPc is also applicable to Muslims.

Child Custody:

children go through a lot of psychological disturbance by an unhappy marriage between the couple. Guardianship and ward act 1890 and Hindu Adoption and Maintenance act, 1956 child custody is categorized into:
  • Physical custody
  • Joint custody
  • Legal custody
  • Third-party custody
Most probably it is the father who is supposed to take custody of the child due to the reason of maintenance. The Indian constitution takes every aspect into account and makes provisions accordingly. A newborn infant child needs extreme care at this stage and no one can do this better than the mother. Child custody under Hindu law and Muslim law both have special provisions for the right of parents.

In deciding child custody in Hindu law the two above-mentioned acts play a major role i.e., the Guardianship and ward act of 1890 and the Hindu Adoption and Maintenance act, of 1956. The child will remain with the mother until the age of 5 years and after that custody is transferred to the father till the minor attains the age of 18 after the age of 9 the court will consider the consent of the child for which parent he/she wants to reside with.

Under Muslim law in Hanafis, Hizanat gives it entirely to the mother but in the case when the mother is either not physically or mentally sound or treats the child brutally. Hizanat is one of the Hanafi Muslim laws that deal with child custody matters.

In one case, 2016 supreme court in a mutual divorce case was in favor of giving custody to the mother but the child was willing to live with his father the court decided that the child was living with his mother since the tender age of 21st months but the child was happy with the company of his father so the court decided to give the custody of the child to the father.

Property Rights of women in divorce:

Women have no right over the husband's property. The Marriage Laws Amendment Bill, 2013 was proposed in 2010 and passed in august 26,2013 by the Rajya Sabha according to the bill the wife could claim or possess 50% of her husband's residential or immovable property whether the property was possessed before or after the marriage however this bill has lapsed.


Any kind of gift or property whether movable or immovable that a bride receives before or at the time of marriage from her relatives is called Stree Dhan. The Indian women's right to streedhan is protected under section 27 of the Hindu Marriage act, 1955, and section 14 of the Hindu succession act. The wife can sell, alienate, use, or gift his property to whomsoever she wants.

Relationships are like milk. It takes hours to milk the cow, but only a second to spill the bucket. Although divorce laws are made for the ending of marriages it also entails an end of family relationship and thus must not be used or sought for in haste. Getting divorced may not be the solution for everyone.

Every couple should try to solve their problems using reconciliation instead of getting separated. It is important to understand that divorce has an ugly side to it. Remember that you once loved that person that you now grudge. In a bizarre case a Muslim woman approached the sharia court for divorce just after 18 months of the marriage the woman claimed that her husband's love was suffocating her.

People are treating divorce to free themselves from marriages. People are ending happy marriages that are affecting the whole of society. Ending marriage not only separates the couple but also separates the healthy relationship between two families.

After all this, the main issue is staying in an abusive marriage or depressing relationship is not acceptable in this case the couple should opt for divorce!!. Do not let your partner abuse you and your relationship in any manner don't tolerate violence at any cost if they do it once they become habitual of that so just raise your voice against these kinds of acts.

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