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Divorce Laws In India

Marriage is a social legal contract between a spouse who expects to live with each other for the rest of their lifetime. A ceremony is arranged to establish that they have taken a decision to live together. It is believed that those ceremonies will increase their bond. In our life everything doesn't happen as we planned. There are couples who would like to end their marriages. They may have physical or mental problems in which leads them to take this decision.

These decisions may be mutual or from one side alone. For such terminations, they approach court expecting a legal dissolution of their marriage. We call that as Divorce. There are two types of divorce mutual divorce and contested divorce. But court can't grant divorce for every person who claims for it. There is a procedure for everything. We have these procedures because marriage is not only about two people.

Marriage involves two families and children of the spouse. We should consider the future of the children, family and spouse. As we all know every religion has their own rituals, events and believes for marriages, they also have their own methods and rules for divorce too. Our Indian courts strive hard to unite the spouse for regulating our society. But there may be circumstances where a person experiences harassment from their own partner.

In this situation, we can't expect the victim to live with his/ her spouse for their life. Our courts are very keen while deciding to whom divorce should be given. There are few Acts that governs marriage and divorce in India. They are the Family Courts Act, 1984, Indian Divorce Act, 1869, Hindu Marriage Act, 1955, etc.

But what are the causes of divorce? What are the significant of divorce? What maintenance the partner will be receiving? Who will get the custody of the child? How effective is the counselling process prescribed by the court? As we are also somehow connected to this institution called marriage, every citizen of India should be aware of it. Our paper will throw lights on the basics of Indian Divorce laws that every person should know.

Divorce In The Eyes Of Religion:

Religion plays a major role in framing personal laws. Even though we are governed by our own personal laws, these laws get their source from their own religion. It is important to understand the concept of divorce in early days with respect to a religious phenomenon. In our country, 3 religion plays a major role namely, Hinduism, Christianity and Islam. Let us see how the concept of divorce was viewed in these 3 different eyes.

Hinduism:

According to Hinduism, marriage is a not a contract, it is a samskara or rite of passage, Thus, there is no space for revoking marriage in Hindu culture. When a Hindu couple performs sapthapthi (seven steps around the fire) they are tied by a strong bond. From Hindu mythology it can be observed that there is no concept of divorce in early Hindu culture but there are some domestic misunderstandings which lead to judicial separation, Lord Sita was deserted by Lord Rama when she is pregnant, here we can observe that a Judicial separation was considered as the solution for marital problems in ancient Hindu culture.

Divorce, however, is not seen between God and his consort. In Vishnu temples, Lakshmi shrines are always separate from Vishnu's. In Dwarka, Rukmini stands separate from Krishna. In Pandharpur, Satyabhama stands in a shrine separate from Krishna[1]. These examples clearly say that there is no space for divorce in ancient Hindu tradition and judicial separation has its own history in Hindu culture is so far concerned.

Christianity:

The concept of divorce can be traced in the Bible but it was interpreted in two different ways by the two different branches of Christianity. The Roman Catholic Church never accepts the concept of divorce, according to them, marriage is a strong bond which can't be broken. A marriage can only end when one of the partners dies. A civil divorce may be granted to a Roman Catholic couple but they can't remarry in Roman Catholic Church Since their previous marriage is still exist in the eyes of God.

On the other hand, the Church of England permits divorce for a couple when the marriage is truly broken, they believe in the concept of divorce. According to them, marriage is a true bond and it can be cancelled when it can be repaired. In general, Christians believe in marriage and they avoid divorces, even when they face marital difficulties, they try to solve it as they promise before God to stay together.

ISLAM:
Islam religion gave a different view on divorce, Divorce is granted when the marital bond between the couple is completely broken, which can't be repaired. The Quran establishes two further means to avoid hasty divorces.[4]

For a menstruating woman, Al-Baqarah 2:228[6] prescribes the waiting (Iddah) period before the divorce is finalized, as three monthly periods. Similarly, for a non-menstruating woman, At-Talaq 65:4 prescribes the waiting period. From this it can be observed that the religion gives plenty of time to reconcile their marital bond, divorce is only granted when there is no chance for reconcile.

Some of the commonly known form of divorce in Islam religions are:

  1. By Husband- Talaq-Ul-Sunnat, Talaq-Ul-Biddat, Ila and Zihar
  2. By Wife- Talaq-i-Tafweez, Lian and Khula
  3. My Mutual Agreement- Mubarat
On the other hand, in the early days, the Holly Quran provides many benefits to Muslim men, with some restrictions. Particularly with respect to the concept of divorce, Men have more powers than Women, Women's consent is not attracted in many Divorce cases. But latter Gender Equality was up held by the Indian Judicial System in the famous case Shayara Bano[2], they struck down the concept of Triple Talaq which means Instant divorce.

Causes And Needs Of Divorce

A statistic says that one out of a hundred marriages in India end in divorce.[3] Though it is comparatively low than the rest of the countries, it's quite a large number. Now let's see the causes of these divorces.
  • The most common and prime cause for divorce is adultery. Where married men or women having an illicit relationship with another person is called adultery. Mostly they end up in this relationship because of lack of satisfaction sexually with their spouse. Other reasons for ending up in adultery are poor communication between spouse, one among the couple feeling lonely despite living with their partner, lack of love and affection, lack of intimacy, etc. In this case, the partner of the person who had the illicit relationship feels cheated and so apply for divorce.

    According to Section 10 of Indian Divorce Act, 1869 and Section 13(1)(i) of The Hindu Marriage Act, 1955, husband or wife could petition for divorce if they found that their partner has involved in adultery. This is required because the person affected may no longer get any sexual satisfaction, love and affection from the partner who went with another person for the same needs. But there are no provisions regarding adultery in Muslim laws.

    In the case of Revathi vs Union of India[4], the court held that neither the husband nor the wife could not prosecute the other for the purpose of adultery. Recently in the famous case of Joseph Shine vs Union of India[5], adultery was decriminalized as they thought that gender equality is important in adultery too.
     
  • Before, cruelty was only a ground to get judicial separation but after The Marriage Amendment Act, 1976 was enforced cruelty has been made as a ground for divorce. Cruelty not only include physical cruelty but also includes mental cruelty which is mentioned in Section 13(1)(ia) of The Hindu Marriage Act, 1955. Physical cruelty means assault, beating, etc., and mental cruelty means forcing them to lead an immoral life, defaming their partner, etc. According to Section 2(viii)(f) of The Dissolution of Muslim Marriages Act, 1939, in Quran, they have mentioned that, if a man having more than one wife, fails to treat them equally also amounts to cruelty.
     
  • Desertion is also a cause for divorce. A spouse leaves the other spouse without their consent. This is divorce is essential for the spouse who is left out will become lonely and their expectations over that marriage are also totally shattered. Previously, desertion was also just a ground for judicial separation. Now, according to Section 13 of The Hindu Marriage Act, 1955 and Section 10 if The Indian Divorce Act, 1869 desertion is also a ground for divorce. There should be separation and no consummation for two years to apply for divorce. No such provisions were available regarding desertion in Muslim law.
     
  • Conversion: If any person converts his/her religion without the consent of their spouse then it can be a ground for divorce. This is because once a person's religion is changed there will be more chaos in the family due to different cultural habits. The Hindu Marriage Act brings conversion as a ground for divorce in Section 13. Where as in Section 4 of the Dissolution of Muslim Marriage Act, only specifies that women who convert her faith are entitled to dissolution of marriage. Christian law ignores conversion as a ground for divorce.
     
  • Insanity: A person cannot spend their life with an insane person and so according to the Section 13 of the Hindu Marriage Act and Section 2(iv) of the Dissolution of Muslim Marriage Act, if any person is found to be insane for more than two years then the spouse can file a suit for divorce. There is no specific provision regarding insanity in Christian law.
     
  • Leprosy and Venereal disease: A spouse cannot live with a person who has a medical instability for their whole life. They deserve a choice to get rid of their spouse. So, under Section 13 of the Hindu Marriage Act and Section 2(vi) of the Dissolution of Muslim Marriage Act they could seek for divorce. There is no provision regarding leprosy or venereal disease in the Indian Divorce Act, 1869.
     
  • Presumption of death: According to the Hindu and Christian law, if a person's spouse is dead then the marriage is dissolved but there is no provision regarding the death of the spouse in Muslim law.
  • Mutual: According to Section 10A of Divorce Act, 13B of Hindu Marriage Act and Khula and Mubarat under Muslim law a spouse could get a divorce mutually.
     
  • When a couple has no resumption of cohabitation after one year of judicial separation then they could claim for divorce.
     
  • And if there are no conjugal rights for more than one year, then the couple could seek divorce.
These are the grounds, causes and need for divorce.


Counselling
Our Indian Divorce laws try only to unite the spouses. Only in a critical condition divorce is given. To reduce the divorce rates counselling plays a prominent part. The Family Courts Act, 1984 brought the Alternative Dispute Resolution (ADR) and introduced the concepts like mediation, counselling and conciliation. Marriage counsellors were appointed. The marriage counsellors assist the spouse to identify the conflicts and help them resolve it.

The procedure for counselling differs from one state to another. The roles and responsibilities of the counsellors are framed by the High Court according to Section 23 of the Family Courts Procedure Rules, 1996. Currently, two counsellors per family court are appointed. The responsibility of the counsellors is to facilitate the reconciliation of their concern.
  • One of the basic qualifications of a counsellor is to have the ability to understand the issue and try to resolve it without any bias.
     
  • Courts have recommended avoiding lawyers for divorce cases and instead suggest the spouse to attend more counselling.
     
  • A counsellor should have adequate knowledge on problem solving, reconciliation, settlement, the welfare of the client, client's empowerment and emotions of the client.
     
  • Divorce counselling is mandatory for each and every spouse who had applied for divorce. This is because most of the couple's problem is a misunderstanding. They would have refused to talk to each other. This counselling creates a platform for the spouse to express their feelings completely.
     
  • Counsellor are not bound to disclose the conversation between the couples to anyone.
     
  • A notice shall be sent by the counsellor whether the settlement could be arrived or not.
     
  • In that notice, a counsellor could also recommend any psychiatrists or psychologists for any patients. This would help the courts to guide the spouse in a proper way.
     
  • In a few circumstances, more counselling sessions may be required. The courts also pave the way and give adequate time to the spouse.
     
  • Lawyers are asked to recommend pre-legation counselling to their clients.
     
  • The approach of counselling should if a child is involved. Future of the child should be prioritized.

The only problem is that there are only two counsellors appointed per family court. In the current situation, divorces cases have raised a lot. Two counsellors cannot handle every divorce case because they have barely two to three sessions with the client.

And yet another issue is, though divorce counselling is mandatory to every spouse they refuse to attend those counselling. Their lawyer fails to explain the benefit of counselling. People should be aware of the benefits of divorce counselling and the number of counsellors per family court should be increased to decrease the rate of divorce in society.

Maintenance Rights Of Divorcee:

Maintenance is the concept which comes into the play when a couple approaches the court of justices for divorce. Since Maintenance has it is own link with divorce, Maintenance is also different in all the three different religions. Maintenance is a concept which allows one person to get financial support from his/ her spouse even, after divorce. Factors like the monthly income of husband and wife, the financial status of husband and wife are considered by the court before granting Maintenance. Generally, the court keeps an eye on the maintenances of the children also while granting the maintenances.

The husband and wife have to provide financial support to the minor child, even after divorce. It can't be generalized that wife is the party who gets the maintenance always, there are some legal provisions which allows a man to get maintenance from his wife after divorce. Section 24 of Hindu marriage act says that maintenance pendente lite and expenses of proceedings can be granted in favour of both husband and wife and Section 25 of Hindu Marriage act allow the court to grant lifetime maintenance to both Husband and wife whose financial status is low. Delhi High court made an observation in a case[6] that when the husband has no self-income to run his life can claim maintenance from his wife after divorce.

Bombay High court made different interpretation which gives more clarity section 24 of Hindu Marriage Act, it was held in a case that her husband is entitled to get maintenance under Section 24 of the Act. In a case, it was held that since the wife is in employment, the husband cannot make himself wholly depend on her income through a device under Section 24 of the Act. In the absence of any handicap or impediment to earning, to grant maintenance to such able-bodied person equipped with skill would promote idleness, which is opposed to the spirit of Section 24 of the Act[7].

Maintenance in case of women is different Women has a special right called Right to Streedhana Streedhana is the property gained by a woman at the time of marriage, it is different from dowry. Women have the full right over these properties even after the divorce.

Maintenance under Hindu Law:
A Hindu couple who got married under the Hindu Marriage Act can get maintenance through the Hindu Adoption and Maintenance Act. The Court is the final authority which can solve the disputes in case of deciding the maintenance amount.

Maintenance under Muslim Law:
According to the Muslim belief, Men has to maintain his wife and family. The term Maintenance under Muslim law is called NAFAQA and it involves lodging, food and sustenance. They are governed by Muslim women (Protection of Rights on Divorce) Act, 1986. A wife can claim a reasonable fair amount from her ex-husband within the prescribed IDDAT period, and Muslim men have to give the promised Dower or Meher.

If the wife is pregnant claim can be made for an amount for at least 2 years from the date of birth of a child. If they had a child in wife's custody then, the wife can claim maintenance for the child till she remarries or until the child is dependent. The marriage contract may also stipulate the payment of special allowances by the husband, and in presence of these, it becomes the obligation of the husband to pay these to the wife. Such allowances are called kharch-e-pandan, guzara, mewa khore, etc[8].

Maintenance under Christian Law:
Indian Divorce Act comes into play with respect to claim made by Christian couples, according to the Act, the amount of maintenance can't be more than one- fifth of husband's income. Maintenance will not be provided if women remarry or found to be chaste.

Custody Of Children After Divorce:

The termination of the marriage contract through Divorce will never end the bond with their children. The saddest truth is that the real sufferer is the child who is going loose one of their parents.

The real problem of divorce starts when the court grants divorce for the couple who are parents too. The court has to decide the custody of the children of divorced parents. Many ways are identified to solve this problem. In general, The Guardians and Wards Act, 1890 is the act which governs the legal procedure pertaining to the custody guardianship of children in India. The common 3 types of guardianships are as follows:
  1. Joint Physical Custody:
    The Joint Physical Custody concept was newly evolved concept in which both the parents will have a right to legal custody of the child but one of them will have the physical custody, where the child resides with one parent will be the primary care taker too.
     
  2. Sole Custody:
    Under this method court decides one of the parents be unfit to take care of the child thus, the court decides to grant the other parent to be the guardian for the child.
     
  3. Third Party Custody:
    Both the biological parents are not going to be the guardian, in such cases court may appoint a person as a guardian of the child under Indian Guardians and Wards Act, 1890.
Every Law relating to marriage, divorce, maintenance, adoption, custody have their base from different religions similarly, these custody rules also have 3 different religious background

Under Hindu Law:
The mother is who usually gets the custody of a minor child if the child is below the age of five and if the child is more than the age of 9 the child's consent is considered by the court. If the mother is proven to be neglect court may not provide the custody of the child to mother. And if the case is about an older boy's fathers are given more priority and if it is about the elder girl then the mother is given more priority.

Under Muslim Law:
In Muslim law, Mother is given the Right of Hizanat (right to custody) of her child in all cases. This right will be given to father only when the mother is convicted for any misconduct.

Under Christian Law:
When it comes to a Christian family, both the parents will be given legal authority to be the guardian of the child but the problem arises when it comes to the residence of the child. Court has to decide only about the residence of the child after divorce.

Effects Of Divorce:

When a couple gets divorced every single person in a family lose one person. It is quite easy to accept a person's absence by death rather than divorce. Every individual in the family get influenced indirectly by the divorce, but child born to the divorced couple gets a very direct impact which might be long-lasting and disturbing. In general, every child needs both the parents there are many practical lessons which can be leant only from their mom/ dad if one child loses his/ her one of the parent's society teaches it in a very harsh manner which makes the child more arrogant. The effect of divorce on the child are as follows:

A very strong issue is Emotional Imbalance which is faced by all the children of divorced parents. They might to fell weaker and lose their confidence in public. Every individual child starts to feel their parent's absences in all their family gatherings. This all leads them to feel worse and turn them into anger.

They lose their concentration in studies which turn them into the show a Poor Academic Performance. Divorce tends to spend their time to think about their parents which ultimately leads to losing their concentration in their academic performances.

Most of these child shows less interest in social get-togethers, they prefer more loneliness, this all leads them to feel more insecure. This makes the child change their behaviour and tends to create more Behaviour Problems.

Another problem is Felling of Guilt many children of divorced couples make a general assumption that they are the sole reason for their parents' divorce. In many cases, the child has no play in their parent's divorce, even though the child develops a guilty feeling and thinks that they're the only reason for their parents' divorce
Many Psychiatrist made an observation that when a child is brought up by a single- parent that too by opposite gender they tend to develop very weak Sexual Behaviour in their life. This is due to the absence of other parents in their life.

When many children made spend their time alone this leads them to develop more negative habits a many survey says that children of divorced parents are very easily gets attracted to Drug Abuse problems.

Children of divorced couples lose their hope in Marriage Life, generally, they lose their faith in creating a strong relationship and getting married, this may lead them to take wrong decisions about marriages and sometimes they may avoid marriages by seeing failures in marriage.

Conclusion:
We live in a country where religion makes personal laws to govern us, generally, personal laws are the keys which helps to transfer the culture from one generation to another. According to our religion divorce is the last resort for marital problems and it should be encouraged only when there are no other possible solutions to solve it. There may be many reasons as mentioned in the paper to bring a need for divorce but a couple should make a wise decision to reconcile the relationship between them.

In some cases, counselling may bring beautiful changes in couples which may lead them to take a diversion and allow them to join back. The interesting fact is that sometimes counselling may strengthen their relationship and makes the bond in family stronger. The divorce between couple never makes a huge impact on the family but divorce by parents will create a massive miserable impact on their children. Hence parents have to make a wise decision before they approach the court for a divorce.

Divorce can't be encouraged at all-time when we have other reliefs like Judicial Separation, Counselling in this modern society, at the same time divorce can come into play when marriage is truly broken. Every problem will have its own solutions but getting rid out of the problem can be the last one.

References
  1. Devdutt Pattanaik, is divorce is permitted in hindusim, daily o, (01/09/2017), https://www.dailyo.in/lifestyle/hindu-marriage-divorce-puranas-dharmashastra-hinduism/story/1/19280.html
  2. Shayara Bano and others v. Union of India and others, Writ Petition (C) No. 118 of 2016
  3. Divorce fact sheet- Where India stands in the World, Latest Laws.Com, 24th Jan, 2015), https://www.latestlaws.com/did-you-know/divorce-fact-sheet-india-stands-world/#:~:text=Statistics%20shows%20that%20only%201,of%201%2C000%20marriages%20were%20annulled.
  4. V. Revathi vs Union of India & Ors, 1988 AIR 835, 1988 SCR (3) 73
  5. Joseph Shine vs Union of India on 27 September, 2018, Writ Petition (Criminal) NO. 194 OF 2017
  6. Rani Sethi v. Sunil Sethi, 179 (2011) DLT 414
  7. Kamelendra Sawarkar v. Kamalendra @ Kamalakar AIR, 1992 Bom 493
  8. Swati Shalini, Maintenance Rights of the Divorced Women under the different religions in India, 12/09/20219, https://www.myadvo.in/blog/maintenance-rights-for-divorced-women-under-different-religions/

Submitted By:
  1. S. Shakthi Jayanth, II year, B.Com., L.L.B., (Hons.) - Sastra Deemed To Be University
  2. C.Amirdha Varshini, II Year, B.Com., L.L.B., (Hons.) - Sastra Deemed To Be University

    Awarded certificate of Excellence
    Authentication No: AG021817469481A-5-820

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