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.

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.CounsellingOur 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.