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
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.
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
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
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
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
- 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
- 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:
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:
- Has, after the solemnization of the marriage, had voluntary sexual
intercourse with any person other than his or her spouse; or
- Has deserted the petitioner for a continuous period of not less than two
years immediately preceding the presentation of the petition; or
- is undergoing a sentence of imprisonment for seven years or more for an
offense as defined in the Indian Penal Code (45 of 1860);
- Has since the solemnization of the marriage treated the petitioner with
- 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
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
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
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
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.
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
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
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
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.