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Development of Divorce Law in India and its impact in the society

The writer in this article talks about the evolution of divorce law in India and its impact in the society. India is a secular country where all the religions have their own laws which regulates divorces within their own community. In India marriage is considered as an eternal union and no man can put them under but as the time passed by, divorce began to be accepted as a common practice and therefore, it become a major issue of concern. Now divorce is chosen more often because couples think divorce as an option for problems that can be solved by discussion and some adjustment.

A divorce is a legal action between married couples to discontinue their marital relationship. It can be referred to as termination of marriage and is basically the legal action that ends the marriage before the death of either spouse.

All major religions have their own laws that govern divorces within their own community and many have separate laws concerning divorce in inter-religious marriages in India. The Hindu Marriage Act of 1955 governs Hindus, Buddhists, Sikhs, and Jains in India. The Indian Divorce Act of 1869 governs Christians, the Parsi Marriage and Divorce Act of 1936 governs Parsis, the Dissolution of Muslim Marriages Act of 1939 governs Muslims, and the Special Marriage Act of 1956 governs inter-religious marriages and divorces.

Because there are numerous religions in India, each has its own set of rules that govern divorces within its own section of society, as well as its own historical background. The notion of Hindu Marriage extends well beyond a simple man-woman bond. It has been called as an eternal relationship.

The origins of Hindu law can be traced back to the Vedas, which date back more than 3000 years. According to Kautilya śa women may abandon her husband if he is of bad character, if he has become a traitor, or is likely to endanger her life, is an out-caste and lost his virginityť. A disaffected wife is not to be granted divorce from her husband who is unwilling nor the husband from his wife but by mutual consent divorce can be granted.

Kautilya recognizes desertion, cruelty, apostasy, impotency and mutual consent. This reflects a picture of the society where the woman has a right of sex and happy marriage and was assured against neglecting husband. The first attempt at making written a statutory provision for divorce is in the year 1931 in the form of The Divorce Act, 1931. Under this both the husband and wife were given the right to divorce for impotency, adultery, bigamy, desertion, conversion, cruelty, intoxication and in addition to these, if the wife is pregnant at the time of the marriage or if the spouse disappeared for seven years or more.

This was soon followed by The Madras Act, 1933. After this the boldest attempt towards the divorce law was made, in the form of The Hindu Marriage Act, 1955. Now, The Hindu Marriage Act recognizes nine-fault grounds available to both the spouses and four-fault grounds are available to the wife alone. Earlier there were nine-fault grounds for divorce but now there are only eight-fault grounds of divorce by replacing Leprosy.

Christians also considered their marriage as sacrament, they thought that marriages are made in heaven and no man can put them as under. For the first time the dissolubility of marriage was recognized by The Matrimonial Cause Act, 1857.Though the grounds of dissolution of marriage is only adultery. And if the wife filed for divorce, it had to be adultery-plus. Once the termination of marriage was recognized, the pace never stopped. If marriage can dissolve on the account of adultery, it can dissolve on the other grounds as well. Soon desertion and cruelty were recognized as the ground for divorce. The Governor General in Council enacted the Indian Divorce Act, 1869, which applied to Christians across India.

The Indian Divorce Act has not been changed significantly since 1869, and therefore Christian law on divorce in India has been embedded on the basis of Victorian era for more than a century and a quarter, until Act 51 of 2001, when Christian law of Marriage and Divorce was substantially revised. Christian law provides ten fault grounds of divorce for both the spouse and one fault ground to the wife for the dissolution of marriage.

The first Parsi Marriage and Divorce Act was passed in 1865 as a result of a court lawsuit initiated 10 years earlier by a Parsi lady for maintenance and restoration of conjugal rights, which had been deemed out of the Supreme Court's jurisdiction on its ecclesiastical side. There have been several Parsi Marriage and Divorce Act since the mid-19th century, the most recent being that of 1936. The Parsi Marriage and Divorce Act of 1936 specifies ten grounds for divorce on which either spouse may file for divorce. Provision for divorce by mutual consent has been inserted only by 1988 amendment, vide section 32B.

All family laws:

Hindus, Muslim, Parsi, Sikh, Jain and Christian personal laws have some certain common features. All of them recognize the man as the head of the household, they treat women as chattel and consider the father to be the natural guardian and They maintain double standards in terms of sexual morality and property ownership.

The Hindu Marriage Act, 1955 recognizes eight-fault grounds for divorce which is defined under section 13(1) of The Hindu Marriage Act, 1955 to both the spouses for seeking divorce are:

Any marriage that has been solemnized, whether before or after the commencement of this act, may be dissolved by a decree of divorce on a petition brought by either the husband or the wife, on the grounds that the other party:
  • Adultery;
  • Cruelty;
  • Desertion not less than two years for a continuous period;
  • Conversion to another religion;
  • Insanity;
  • Venereal Disease;
  • Renunciation;
  • Presumption of death.

Section 13(2) The Hindu Marriage Act, 1955 under which wife can alone seek divorce are:

  • Pre-Act Polygamous Marriage;
  • Guilty of Rape, Sodomy or Bestiality;
  • Non-Resumption of Cohabitation after a decree of maintenance;
  • Repudiation of Marriage.

The Special Marriage Act, 1954 recognizes seven-fault grounds for divorce which is defined under section 27(1) of The Special Marriage Act, 1954 on which either spouse can seek divorce are:

  • Adultery;
  • Cruelty;
  • Desertion not less than two years;
  • Respondent undergoing a sentence of imprisonment for seven years or more an offence under IPC, 1860;
  • Venereal Disease in a communicable form;
  • Incurable Insanity;
  • Presumption of death.

Section 27(1A) of The Special Marriage Act, 1954 contains two-fault grounds on which wife can alone seek divorce are:

  • Guilty of Rape, Sodomy or Bestiality,
  • Cohabitation has not been resumed for a year or more following the issuance of a maintenance order under Section 125 of the Criminal Procedure Code, 1973.
     
The Dissolution of Muslim Marriage Act, 1939 recognizes nine-fault grounds for divorce which is defined under section 2 of The Dissolution of Muslim Marriage Act, 1939on which wife alone can sue:

A woman married under Muslim law has the right to obtain a decree for the dissolution of her marriage on one or more of the following grounds:

  • That the husband's whereabouts have not been known for four years.;
  • For the past two years, the spouse has ignored or failed to provide for her maintenance.;
  • That the husband has been sentenced to prison for a term of seven years or more;
  • That the husband has failed to discharge his marital obligations for a period of three years without justifiable cause;
  • That the husband was and continues to be impotent at the time of marriage;
  • That the husband has been lunatic for two years or is suffering from leprosy or a virulent venereal illness;
  • That she, having been given in marriage by her father or other guardian before the age of fifteen, can renounced the marriage before the age of eighteen, provided that the marriage has not been consummated;
  • That the husband is cruel to her, that is:
    • Habitually abuses her or makes her life unpleasant via cruelty,
    • Associates with women of evil repute or lives an infamous life, or
    • Attempts to coerce her into living an immoral life, or
    • Dispenses with her property or prohibits her from exercising her legal rights to it, or
    • Obstructs her from carrying out her religious profession or practice, or
    • If one has more than one wife, he does not treat her equally in accordance with the Quran's injunctions;
  • On any other ground which is recognized as valid for dissolution of marriages under Muslim law.

The Indian Divorce Act, 1869 recognizes nine-fault grounds for divorce which is defined under sub-section (1) of section 10 of The Indian Divorce Act, 1869 on which either spouse can seek divorce are:

Any marriage that has been solemnized, whether before or after the commencement of The Indian Divorce (Amendment) Act, 2001, may seek divorce on the following grounds:

  • Adultery
  • Conversion to another religion;
  • Incurably insane for a continuous period of not less than two years;
  • Venereal Disease in communicable form;
  • Presumption of death;
  • Desertion at least for two years
  • Cruelty;
  • Refused to consummate the marriage;
  • Has failed to comply with a decree for restitution of conjugal rights for a period of two years or more after the decree was issued against the defendant.

A wife may also present a petition for the dissolution of her marriage on the grounds of:

  • Guilty of Rape, Sodomy or Bestiality.

The Parsi Marriage and Divorce Act, 1936 recognizes nine-fault grounds which is defined under section 32 of The Parsi Marriage and Divorce Act, 1936 on which either spouse can seek divorce:

Any spouse may file for divorce on any of the following grounds:
  • That the marriage was not consummated within one year of its solemnization due to the defendant's intentional reluctance to do so;
  • That at the time of the marriage the defendant was of unsound mind;
  • That at the time of the marriage the defendant was pregnant by some other person other than the plaintiff;
  • Adultery, fornication, bigamy, rape, or any other unnatural offence;
  • That the defendant caused grievous hurt to the plaintiff or husband compelled the wife to submit herself to prostitution;
  • That the defendant is serving a seven-year or longer jail sentence;
  • Desertion for at least two years;
  • Conversion to another religion;
  • That the defendant, pursuant to a Magistrate's order, has awarded separate maintenance to the plaintiff, and that the parties have not engaged in marital intercourse for one year or more since such decree or order.

There are two types of divorce petitions from which a couple can seek divorce:
  • Mutual consent:
    When the husband and wife both agree to dissolve their marriage, the court will consider a divorce with mutual consent.
  • Without Mutual consent: -
    When either of the spouse file divorce petition without the consent of other party, there are specific grounds on which the petition can be made.
To give a better understanding about this topic, I discussed a case law:
Krishnabai v. Punamchand AIR 1967 MP 200
Krishna on her marriage with punamchand, landed in a joint family of her husband's father house and after the marriage, she always used to quarrel with her in-laws and had developed an illicit intimacy with Lallusingh of Harsud. As a result, her husband filled a petition for the dissolution of marriage under Hindu Marriage Act on 29 June, 1960.

But Krishna returned to her husband's house. Again, there is a quarrel between Krishna and her in-laws and she left the marital house to live with her parents on 02 March, 1962 and she alleged that her in-laws tried to poison her and her father-in-law misbehaved with her.

The learned District Judge concludes that the appellant was not able to prove that the father of the respondent had in any way misbehaved with her and he concluded that there are no valid reasons for the appellant to stay away from her marital house and passed a decree for judicial separation with cost.

Further, Krishna appealed against the decree passed by the District Court and the High Court held that, we are of the view that the Learned District Judge was correct in decreeing the suit of the respondent, and so this appeal fails and is dismissed with costs.

As there is a change in traditional structure of sex roles have altered the perceptions of both men and women. Now women have more options and less dependent on man these encourage divorce among who are dissatisfied with their marriage. Divorce can be defined as the misfortune for both the spouses, children and society. At many times, after divorce children of the divorced couples face many problems. Researches indicate that children do suffer emotional anxiety after the separation of their parents.

In the end I want to conclude that divorce in India is emerging as a major problem of concern because of the urbanization. Divorce is a problem with solution and not all problems should end in divorce. Couples should co- operate and adjust to solve problems.

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