Author: Mohammed Yaqzan Ajwad, a student at ICFAI Law School-IFHE University
ABSTRACT
Divorce laws have made great strides and changes within India according to the new shape and fabric of society and ever-evolving attitudes towards marriage as well as the need for legal reforms about the different problems of modernity. This article attempts to understand the evolution of these causes in marital history, including some of the effects under which divorce is obtained and the legal processes involved in the dissolution of marriage. This article discusses the grounds of divorce laws, their process, and challenges in divorce laws. In addition, the article talks about the key case laws that have been important actors in shaping the jurisdictional development of divorce as well as the contemporary challenges in the legal process including gender equality, and the changing social fabric.
INTRODUCTION
Marriage in India is purportedly a sacred institution as it is very much a cultural and religious concept. Divorce used to be considered taboo from a historical perspective and its perception in society was mainly determined by religious beliefs while many had the notion that marriage is but a lifelong bond. Gradually, however, society has changed, better movements for gender equality prevailed, and the growing trend towards the recognition of individual rights has led to changes in divorce laws in India, rendering them into contemporary values while emptying some portions to accommodate the traditional practices. Divorce laws are meant to provide remedies legally to such persons whose marriages have broken down irretrievably, thereby making provisions for legal separation and dissolution, both in different religious communities.
This article traces the historical evolution of divorce laws in India, the grounds for divorce under various religions such as Hindu law, Muslim law, and Christian law, as well as the legal formalities involved in the divorce process. Furthermore, we consider the most critical case laws on divorce and today’s contemporary issues regarding divorce in India, such as divorce, alimony, custody of children, and the growing recognition of live-in relationships.
GROUNDS FOR DIVORCE IN HINDU AND CHRISTIAN LAW
The Hindu Marriage Act of 1955 came as a new law that modernized the institution of marriage and divorce in Hindu, Sikh, Buddhist, and Jain households. Before this marriage, divorce did not exist even in the form of law under Hindu law. Indian Divorce Act, of 1869 deals with the Christian marriage law referring to the marriages of Christians in India. The two acts define grounds for divorce as follows:
Adultery: The performance of adulterous acts by one of the spouses with a third party.
Cruelty: Physical or mental cruelty inflicted by one of the spouses upon the other.
Desertion: When one party leaves the other for a cause not justified and the period of absence exceeds two continuous years.
Conversion: In case of conversion of one spouse into any other religion.
Mental illness: If a spouse has a mental illness and is unable to perform the duty of marriage.
Incapacity for consummation: Inability, physical incapacity, or the inability of one spouse to consummate the marriage. Moreover, courts recognize the irretrievable breakdown of marriage in practice, even though such a ground is not explicitly mentioned in the Act.
A Christian woman can find a fount of the right under the Indian Divorce Act to seek judicial separation or divorce because of these grounds, wherein division of property to the effect of a maintenance award is also provided under the act.
GROUNDS FOR DIVORCE IN MUSLIM LAW
The husband can divorce the wife without providing specific grounds, provided the procedure adheres to Islamic principles. However, misuse of this right is discouraged in Islamic jurisprudence.
The wife may seek divorce through the following mechanisms:
Faskh-e-Nikah (Judicial Divorce): The wife can approach a qazi or a court for divorce on specific grounds, as permitted under classical Islamic law or codified statutes like the Dissolution of Muslim Marriages Act, 1939 in India. Grounds include:
Absence of the husband: The husband has been missing for four years.
Failure to provide maintenance: The husband fails to provide for the wife for two years.
Impotency: The husband is impotent and remains so.
Cruelty: Physical or emotional abuse. The husband forces the wife to live an immoral life. The husband disposes of her property without consent. Obstruction of her religious practices.
Marital obligations not fulfilled: Failure to perform marital duties for three years.
Marriage before puberty: If married as a minor, the wife can repudiate the marriage before attaining the age of 18 (provided it is unconsummated).
Husband’s insanity or serious disease: Mental illness or a disease like leprosy lasting two years.
Talaq-e-Tafweez (Delegated Divorce): The wife may dissolve the marriage if the husband delegates the right of divorce to her in the Nikahnama (marriage contract).
The Muslim Women (Protection of Rights on Divorce) Act 1986 emerged to protect Muslim women’s rights regarding divorce. The Act created the concept of “maintenance” for women, allowing financial support for divorced women by husbands.
PROCESS OF DIVORCE UNDER HINDU LAW
Divorce According to the Hindu Marriage Act. The following points describe the process of divorce according to the Hindu Marriage Act:
Divorce Petition: Any spouse may file a divorce petition under the Hindu Marriage Act in any family court. The couple may file for a joint petition with the family court for mutual consent in situations where both spouses have mutual agreement on the decision for dissolution.
Court procedure: The court sends a notice to the respondent once the petition is filed and requires attendance at the court. The court listens to all the evidence provided by both parties, which usually gives a pronouncement on whether it can grant or deny divorce.
Counseling or Mediation: In case the couple cannot agree to mutual consent for divorce, the court may direct the couple for counseling or mediation to create an opportunity for the couple to reconcile before proceeding with any further actions in the matter.
Decree of Divorce: A divorce decree is usually pronounced if it is established that sufficient or satisfactory grounds exist for divorce by the law. In some exceptional cases, the cooling-off period may be waived, but couples based on mutual separation will observe a six-month cooling-off period before the final decree.
Appeal: If a party is not satisfied with this decree, he or she can appeal against the decree of divorce to a higher court against the judgment of the Court.
PROCESS OF DIVORCE UNDER CHRISTIAN LAW
Filing of petition: A divorce petition may be filed in the District or High Court either by the husband or by the wife. If such a petition is mutually filed, the process becomes faster.
Mutual Consent Divorce Petition: Mutual consent divorce may also be availed by Christian couples where both parties are interested in dissolving their marriage. Such Petition shall be filed in District Court.
Court Procedures: When the Petition has been filed, the court shall issue a summons to the other spouse and then also check for attempts that have been made for reconciliation. The court may also refer the two parties to counseling or mediation.
Divorce decree: The court will give a provisional decree of divorce termed decree nisi if the ground of divorce is excused by the court and attempts have failed to produce reconciliation. After a defined gap of time- which is six months in provision -the decree absolute is pronounced. The decree is a final divorce.
Appeal: Any party may have the option of bringing an appeal against the decree of divorce in a superior court if its decisions do not satisfy him.
PROCESS OF DIVORCE UNDER MUSLIM LAW
There are different forms of divorce for Muslims which include Talaq, Khula, and Faskh. The procedure and grounds for giving divorce under Muslim law depend on the personal choice and the school of thought followed by Central (Sunni) or Shia.
Talaq (Divorce by Husband):
Pronouncement of Talaq: Talaq-e-Ahsan- The most approved form, in which the husband pronounces divorce once during a Tuhr (the wife’s non-menstrual period) and does not cohabit with her during the waiting period (iddat); a husband can divorce his wife by pronouncing “Talaq” (i.e., “I divorce you”) three times, in one sitting but it has been declared unconstitutional in the case of Shayara Bano v. Union of India, 2017.
Iddat Period: The wife must observe a period of waiting, called iddat, for three menstrual cycles, or until the birth of a child; if she is pregnant until she gives birth. During this time, the husband is required to maintain her, but the divorce is affected after the iddat.
Final Divorce: After completing the period of iddat, the divorce becomes final, and the woman is fit for remarriage.
Khula (Divorce by Wife):
Application for Khula: A wife wanting to divorce through Khula approaches the court of law and the court may grant a divorce if she presents enough reasons for such.
Mutual Agreement: Under Khula, mostly, the wife would agree to return her Mahr to the husband as compensation for the divorce.
Iddah Period: The same for Talaq, the iddah period has to be observed by the wife upon divorce.
Faskh-e-Nikah (Judicial Divorce): A wife files a petition before a Qazi or a civil court and then produces evidence in support of her claim. The merits of the case would be determined according to Islamic tenets or under codified laws, for instance, the Dissolution of Muslim Marriages Act, of 1939. If the husband succeeds in conclusively proving grounds as stated above, the court dissolves the marriage. Now, the wife observes Iddat, has her Mahr with her, and may claim maintenance during such a waiting period.
Talaq-e-Tafweez: The wife may exercise this right where the conditions have been satisfied, including cruelty by the husband, non-maintenance, or remarriage. She pronounces divorce which takes effect either immediately or within the waiting period as required by law (Iddat). This process enables and validates the wife’s right to take divorce with consensus conditions scribed according to Islamic directions.
CHANGES IN LEGAL PROCEDURES
Not only has there been a change in the ground for divorce, but also changes have been made regarding the procedures. The Family Courts Act, of 1984, provides for family courts to reinvent divorce proceedings to be more informal and user-friendly. Moreover, the Act lays down the process of conciliation towards the settlement of matrimonial disputes.
The Arbitration and Conciliation Act, of 1996, aims to facilitate more efficient and cost-effective resolution of marital disputes. The Act introduced arbitration as a means of settlement of disputes, which was regarded as a contemporary liberal approach to divorce.
CHALLENGES IN DIVORCE LAWS
Present-day concerns that now surround this whole divorce scene include the issues of alimony; custody of children, relationships where two persons share living space without marriage; and gender justice. Some key various challenges include:
Alimony and maintenance: The evolution of alimony laws has seen them allow for the provision of financial assistance to both spouses. Unfortunately, still more, disagreements exist as to the manner of apportioning alimony between the parties depending on the financial status attached to both or one of the parties.
Child Custody: Another concern in the wide arena currently is that of children; courts will favor a mother in the case of small children. The recognition of a father’s role is beginning to extend, thus joint custody would also now be quite common.
Live-in Relationships: Live-in has taken on entirely new meanings; people now want to know whether it should be legalized, say marriage in separation or dissolution, for these.
Stigma: Socially among different parts of India, particularly for women, divorce continues to be stigmatized even after forming legal claims. This, invariably, will affect the minds and minds of people taking divorces.
CASE LAWS
Some of the significant case laws have played an important part in shaping the divorce jurisprudence in India concerning grounds for divorce, procedure, and the developing role of the judiciary in the evolving role of device-reception of newly evolved recognized grounds, such as irretrievable breakdown of marriage and mental cruelty.
V. Bhagat v. D. Bhagat (1994): Mental cruelty has been recognized as an important ground for divorce under the Hindu Marriage Act, of 1955. As much, this case laid the foundation of the principle of mental cruelty. The Supreme Court characterized that cruelty does not consist of such physical aspects but could relate to psychological harm, thus expanding the area of cruelty with respect to valid basis grounds for divorce.
Shah Bano Case (1985): A Muslim woman who is divorced files a petition for maintenance against her husband under Section 125 of Crpc. The Supreme Court decided in favor of her claim for maintenance, thereby upholding the status of a woman as worthy of sustenance after divorce. Subsequently, this led to the introduction of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which restricted the rights of maintenance during the iddat period.
K. Srinivas Rao vs. D.A. Deepa (2013): The Supreme Court of India gave this judgment, allowing the irretrievable breakdown of marriage as a ground for divorce, although it is not expressly mentioned in the Hindu Marriage Act, 1955. This judgment lays a foundation for keeping such an important ground in future recognition as it brings forth a more realistic approach to dissolving a marriage.
Shanti v. Suresh (1990): The court explained as a ground for divorce when it required desertion, a continuous act of the spouse abandoning the other without reasonable cause. It further elaborated that even if the spouses are living under the same roof, desertion can be emotional abandonment.
CONCLUSION
The evolution of divorce laws reflects the changing socio-cultural scenario in India. During the earlier times when divorce was hardly recognized and accepted as an option, the present-day scenario of making divorce a legal remedy for irretrievably broken marriages makes an impressive story of reforms in the Indian laws substantially directed toward achieving fairness, gender sensitiveness, and accessibility of the divorce process in India. There remain quite a few challenges in the legal process, such as alimony and child custody disputes, as attending to the social stigma attached to divorce.
As the mindset of society continues changing, more reforms would be needed to include issues like the legality of live-in relationships, no-fault divorce, and division of property acquired during marriage into the ambit of reforms. The legal framework should be well poised to adapt again keeping in mind the principles of justice, fairness, and equality for an individual regardless of religion, gender, or social status concerning divorce laws in India.
