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Evolution If Divorce Perceptions: A Cross Cultural Analysis

Divorce is a miscellaneous phenomenon, deeply associated with cultural norms, values and legal system. From ancient times to the modern time the laws had undergone a significant change, reflecting the shifting of cultural and societal norms of each era. This Article explores the evolution of divorce laws across diverse cultures and societies.

The study employs a cross- cultural approach from wide range of sources including historical records to analyze how divorce perceptions have shifted over the years. The findings of this study has analysis and conclusion of family law reforms like Hindu Marriage Act 1955, Indian Christian Divorce Act 1869, Muslim dissolution of Marriage Act, 1939 and Special marriage Act 1954.

Marriage is considered as a union of two persons they can be of opposite sex as well as same sex which give them a legal recognition as Husband and Wife. In India marriage is a culturally significant institution that carries various meanings and traditions. It is not only considered as a union between man and woman but also a bond between two families.

Different societies and communities have their own personal laws that dictate how marriages are conducted, recognized, and in the same way the spouses decide to dissolve their marriages as their married life didn't work out.

When both the spouses or either of the spouse feels that they can not continue with their marital relationship then they approach the court for legal dissolution of the marriage. It may involve many issues like division of property, maintenance, responsibilities for any children and termination of marital obligations this is what we called it divorce.

The process of Divorce was recognized in ancient civilizations and is evolving with the time. In this Article we will discuss about How the perception of divorce evolved over the years and how does it vary across different cultures and societies? As it is an important process of everyone's life and we must be aware of how this process evolves, we will focus on divorce laws in India from ancient civilizations to modern times.

The term Divorce comes from a Latin word "divortium" which means separation. This legal process of dissolution of marriage has a long history that spans back thousands of years. In ancient civilizations divorce was recognized in areas like Egypt and Greece. We can trace the provision of divorce since 1760 B.C. during the time of King Hammurabi of Babylon. It was believed that king had carved 282 laws in stone.

In that era the society was male dominant and women were often viewed as the property of their husbands and it was not easy for them to initiate a divorce, a man could easily divorce his wife by saying "You are not my Wife" which was followed by payment of fine and returning of the wife's dowry and if wife wanted the Divorce she was required to file a complain to obtain a divorce.

In Roman Empire we can see a significant expansion of the grounds for divorce including the grounds like abandonment and mutual consent. At this time the divorce rights was extended to women, who were allowed to initiate proceedings of divorce against their husbands if they failed to fulfill their marital obligations.

Historical Overview of Divorce Laws In India
A country like India has a comprehensive list of religions that includes Hinduism, Islam, Christianity, Sikhism, Zoroastrianism, Buddhism, Jainism and Bahaism. Out of which there are five major religions practiced in India which includes Hinduism, Islam, Christianity, Sikhism, Buddhism and Jainism.

The Laws relating to personal matters like marriage, divorce, inheritance, succession, adoption, minority and guardianship are governed through different sets of personal laws like Hindu Marriage Act 1955(regulates all the Hindus including Jains, Buddhist and Sikhs), The Indian Divorce Act of 1869 governs Christians, the Parsi Marriage and Divorce Act of 1936 govern Parsis, Muslims are governed through the Dissolution of Muslim Marriages Act of 1939 and the Special Marriage Act of 1956 governs inter- religious marriages and Divorces.

Procedure for Divorce under Hindu Law
Among Hindus, marriage is a necessary samskara i.e. every Hindu must marry because it was believed that a man is incomplete without his wife and vice versa. It was considered as a permanent and indissoluble union not only for this life but for seven lives.

The great recognized commentator Manu never supported the concept of divorce and said that only death can end a marital relationship between husband and wife. Thus, under Hindu law Divorce was unknown and out of question. However, under custom, Divorce has been recognized in some communities and Tribes.

Hindu marriage Act 1955 introduced the concept of Divorce for the first time. Provision related to divorce has been dealt in Section 13, 13[1A], 13A, 13B, 14 and 15 of Hindu Marriage Act 1955. Originally the divorce under Hindu Marriage Act 1955 was based only on the Fault theory the consent and the breakdown theory was added later on.

The laws of Divorce has undergone a lot of changes since its commencement. Primarily the changes were brought by The Marriage Law Amendment Act 1976 (which amended the grounds for divorce) and Personal Law Amendment Act 2019 (omitted Section 13(1)(iv) which makes virulent and incurable form of Leprosy as a ground for Divorce).

Fault Theory
Fault theory is based on the concept of 19th century where divorce was not recognized as an option. The major Drawback of this theory is that if both the party is at fault there is no provision for divorce in this case. When the concept of divorce was introduced it was based on the guilt theory, if any of the spouse is at fault and violated the conditions of marriage then another spouse can seek divorce.

Under the Hindu Marriage Act, the present eight Fault grounds for Divorce are recognized under section 13[1] on the basis of which both husband and wife can seek divorce and section 13[2] deals with grounds which are available to wife only. The common fault grounds are: adultery, cruelty, desertion of two years, conversion to another religion, Venereal disease in a communicable form, Renunciation of the world, Presumed dead.

The additional grounds for wife are: Bigamy, Husband proven guilty of Rape, Bestiality or Sodomy and non- resumption of cohabitation for one year or more after the passing of an order of Maintenance under section 125 CrPC or Section 18 of Hindu marriage Act.

Adultery [13(1)(I)]

Adultery has a well-defined meaning in marital laws. It means consensual intercourse between a married person and a person either married or not. Even a single act of adultery is sufficient to attract the grounds for divorce after the Marriage Amendment Law Amendment Act 1976. Earlier Adultery was a crime under section 497 of Indian Penal Code but in Joseph Shine vs Union of India it was held that adultery would not be considered a crime but was still a ground for Divorce because court observed that adultery is a matter of great concern as it includes the Privacy of two Individuals so it must be dealt among themselves.

Cruelty [13(1) (I-A)]

Petition for Divorce can be filed by either of the party is the other party has treated the petitioner with cruelty. In Russell vs Rusell the term cruelty was defined for the first time. In Narayan Ganesh Dastane v. Sucheta Narayan Dastane the court laid down some tests whether an act will come under the ambit of cruelty.
  • The alleged act committing cruelty should be proved according to the law of Evidence.
  • There should be an reasonable apprehension in the Petitioner's mind of some injury or harm from such conduct.
  • The petitioner should not have taken the advantage of other party.
  • The Petitioner should not have condoned the act of cruelty.

Desertion [13(1) (I-B)]

The Petition can be filed by either party if other party has deserted the petitioner for continuous period of not less than 2 years. In Bipinchandra Jasinghbai Shah Vs.Prabhavati following grounds was stated to prove desertion.
  • One party has abandoned the other party.
  • By abandoning the married life has ended and that is the intention behind abandoning.
  • No Consent of the person deserted.
  • Desertion have been for more than 2 years before the application for divorce is made.

Conversion 13(1) (Ii)

When either of the spouse has converted to another religion or ceased to be a Hindu then other spouse can file for a petition of Divorce and the ground of divorce on the basis of conversion will not be available to converting Spouse.

Unsound Mind Or Mental Disorder [13(1) (Iii)]

A petition for Divorce may be presented by either of the party if other party is incurably of Unsound mind or has suffering from mental disorder of such extent that petitioner can not live with the other party. It includes incomplete development of mind, disability of mind and schizophrenia.

Venerial Disease [13(1)(V)]

Venereal disease means a disease which is Sexually transmitted. If either of the party has been suffering from venereal Disease in communicable form then the other party can file petition for Divorce.

Renunciation Of The World (By Entering Into Religious Order) [13(1) (Vi)]

Either of the party can file petition for divorce if other party has renounced the world by entering any religious order as renunciation amounts to Civil death therefore it is included as a ground for divorce.

Presumed Dead

Either party can file a petition for divorce if the other party has not been heard of as alive for a period of 7 years or more by those persons who would actually have heard of it, had the party been alive.

Grounds Available only to Wife- Section 13(2)
  1. Husband Married again (Bigamy)
  2. Husband proven Shamefaced of force, Bestiality or sodomy
  3. Maintenance decree passed under 125 Cr. P.C OR Sec, 18 of Hindu marriage Act and no cohabitation for 1 year or more.
  4. Marriage solemnized when wife was U-15 and she repudiated the marriage before she was 18.

Section 13 (1-A) [Breakdown Theory]

The Breakdown of Marriage can be defined as a failure to matrimonial relationship where there is no reasonable probability remains for the spouses to live together as a husband and wife. The Supreme Court in Naveen Kohli v. Neelu Kohli has recommended an amendment to the Hindu Marriage Act, whereby either spouse can cite irretrievable breakdown of marriage as a reason to seek divorce.

As there is no provision of divorce in cases of irretrievable form of marriage in the light of this court strongly advocated incorporating this concept in the law in view of change of circumstances. The Public Interest demands that a marriage should be as far as possible and as long as possible must be maintained but in case where there is no hope in a marriage the public interest requires the recognition of the fact. In a situation when there is absolutely no chance to live again together or when it is beyond the repair in such cases the ground for irretrievable breakdown is really needed.

Divorce By Mutual Consent:
Section 13B provides for Divorce by mutual Consent was added by The Marriage Law Amendment Act 1976.

Essentials of divorce by Mutual Consent:
  • Both the Parties must be living separately for a period of 1 year or more.
  • Both parties have not been suitable to live together.
  • Both the parties have mutually agreed that marriage should be dissolved.
  • Both the parties will present a joint petition for dissolution of marriage by mutual consent.
  • After presentation of the petition the parties need to wait for a minimum period of 6 months.
  • If the court is satisfied that the marriage was solemnized and the affirmations in the petition are true, then it will pass the decree of divorce by mutual consent.

Customary Divorce

A customary Divorce is a recognized method of Separation under section 29(2) of the Act which states that this section regardless of whether a Hindu Marriage took place before or after 1955, any special law can be used to legally end the marriage. It means if custom permits the dissolution of Marriage then it will be recognized in the same manner as in Hindu Marriage Act.

Procedure for Divorce Under Muslim
Muslims recognized their marriage as a contract as they sign the Nikah Nama at the time of marriage which legalizes the sexual intercourse and the procreation of Child. Islam is considered as the first religion in the World to recognize the concept of Divorce.

Among Pre-Islamic Arabs, the unconditional power of divorce was given to The Husband, he can divorce his wife at any time at any place without any reason and can also revoke it at his will. They could accuse their wife for adultery and leave them so that they can not find another suitor for themselves. Moreover, they shiver their responsibilities of maintenance and exempt themselves from any kind of punishment.

Position after the Arrival of Islam
The concept of Talaq at the husband's will was till prevalent at that time, however there were certain restrictions imposed by the Prophet Mohammad within the Power of Divorce. He restrained the Husband's unlimited power of divorce and gave power to the women to obtain separation on reasonable grounds. In the case of Musst. Rebun Nessa v. Musstt. Bibi Ayesha & Ors. the court observed that the correct law of talaq according to Quran is that:
  1. there must be a reasonable cause of divorce
  2. divorce must be preceded with the attempt to reconciliation.
Judicial Form of Divorce
Under the Dissolution of Muslim Marriage Act, 1939 eight grounds for divorce are recognized on which wife can file for divorce these are: seven years of imprisonment, fails to provide maintenance by the husband for a period of two years, Unheard absence of Husband for four years, Failure of husband to perform matrimonial duties for three years, impotency of the husband, virulent venereal disease, repudiation of marriage by the wife, cruelty of the husband, not treating her equitably with other wife and any other ground recognized under Muslim Law.

Non- Judicial Form of Divorce
Divorce By Mutual Consent
Under Muslim Law Divorce by mutual consent is recognized in two forms (i) Khul (ii) Mubbaraat. The word Khul means to put off, it means divorce by consent but at the instance of the wife where she gives some consideration to the husband for her release from the matrimonial bond it can be in the form of property. In Mubaraat it is necessary that both husband and wife must desire for divorce however proposal can be initiated by either party.

But in this scenario also wife has to give some part of dower to her husband. It can be seen that in both the cases husband gets some benefit he can ask her wife to give some consideration or to give up some part of dower in consideration of his agreeing on dissolution of marriage.

Express Divorce
It is a form of Non- Judicial Divorce where there is no need for the intervention of the Court. In Express form of divorce the husband pronounce words like "I have divorced thee" which shows the clear intention of husband to disown his wife. Express Talaq includes two form (i) Talaq-i-sunna (ii) Talaq-ul-Bidda

Talaq-i-Sunna Talaq-e-Ahsan: It consist of Single pronouncement of Divorce made in period where wife is not in her Menstrual cycle which is followed by absence of any sexual intercourse during the period of Idda. The Divorce can be revoked any time before the completion of Idda period. Talaq-e-Hasan: In this form husband can dissolve the marriage by pronouncing the formula of talaq once in every moth over a period of three- month. The marriage will be dissolved at the utterance of Talaq at the third time if cohabitation has not resumed during this period.

In this form of Divorce if a Muslim man pronounced the word Talaq thrice in one sitting, will leads to the dissolution of Marriage. This form of Divorce has been struck down by the Supreme Court holding it to be unconstitutional after a protected battle fought by Muslim women in Shayara Bano v. Union of India.

It is a form of Divorce where husband can delegate his power of divorce to his wife completely, temporarily or permanently. This is a major weapon in the hands of the wife to free themselves from the marital Obligations. It can be used by the wife in the case of polygamy and cruelty where she can exercise this power to pronounce divorce on herself.

Procedure for Divorce Under Christian Law
A Christian Marriage is also honored as a Contract and is praised by Minister of Religion with the legal validity under the Christian Marriage Act, 1872. In India Christians are governed by the Indian Divorce Act, 1869. This law allows the Christian to file for the divorce on the grounds of Adultery, Cruelty, Desertion and Religious Conversion. Both the Party can file a common solicitation for divorce with collective concurrence or either of the party can file for divorce on the basis of fault base proposition.

In Conclusion, our Cross-Cultural analysis of the elaboration of Divorce comprehensions has exfoliate light on the dynamic nature of this miracle. It further bandied that how divorce artistic environment have told the way individual perceive and respond to divorce along with the connubial relations. As society is evolving day by day so we do need the laws for divorce with in relation with the changing context.

By feting and esteeming these variations we can better support individuals facing challenges of Divorce. In this period of society it is necessary that we understand the need of society and help individuals to move forward with their remaining life.

  1. Paras Diwan- Law of Marriage and Divorce by Peeyushi Diwan Jain

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