Divorce (or the dissolution of marriage) is the final termination of a marital union, cancelling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties. In most countries divorce requires the sanction of a court or other authority in a legal process. The legal process for divorce may also involve issues of spousal support, child custody, child support, distribution of property and division of debt.
In India, divorce and remarriage are legal; divorce can be applied only after one year of marriage. Divorce rates in India are amongst the lowest in the world. The divorce rate is lower in the villages; higher in urban areas. In last decade divorce rates in India’s urban sphere has been increasing at a much higher rate.
The very counter word for marriage is divorce. Divorce is the legal separation of two spouses by bringing an end to the vows that they took during the sacred ceremony of marriage. The divorce procedure differs from one governmental jurisdiction to another. In India divorce is still a major social taboo and divorce seekers have to undergo several ordeals in order to get separated from each other. Unlike western countries like USA and Sweden, the divorce rate is significantly low in India.
In earlier days, in spite of existence of radical disparity between spouses, either of the two was expected to compromise with the other so that their marital bonding survives. In most cases women were forced to adjust with the unbearable post marital conditions for the welfare of the family, the children and even for herself as she was hardly open to any means of earning her own livelihood.
India has different divorce laws for different religions. Almost all the religions has their own divorce laws in India which are used amongs themselves. There are seperate laws for inter-cast or inter-religion marriages. Divorce laws in India for Hindus is described in Hindu Marriage Act, 1955. Hindu Marriage Act is also used for Sikhs, Buddhists and Jains as they don’t have their own seperate marriage and divorce laws.
Here is the list of various divorce laws in India for various religions:
- Hindu (including Sikhs, Jains and Buddists): Hindu Marriage Act, 1955
- Muslims: Dissolution of Muslim Marriages Act, 1939
- Christians: Indian Divorce Act, 1869
- Parsis: The Parsi Marriage and Divorce Act, 1936
- Inter-Cast of Inter-Religion : Special Marriage Act, 1954
Grounds for Divorce in India: In India divorce is granted mainly on 4 different grounds.
- Adultery
- Desertion
- Cruelty
- Impotency
- Chronic Diseases
Mutual Divorce in India: Mutual Divorce is to be filed by the couple only after they have lived apart for at least a year. A petition supported with affidavits for divorce should be filed in the district court by the both the spouses. The husband and the wife should jointly state to the court that they are unable to live together as they are facing immense difficulties in adjustment.
The Law
All major religions have their own laws which govern divorces within their own community, and separate regulations exist regarding divorce in interfaith marriages.
Hindus, including Buddhists, Sikhs and Jains, are governed by the Hindu Marriage Act, 1955; Christians by the Indian Divorce Act, 1869; Parsis by the Parsi Marriage and Divorce Act, 1936; and Muslims by the Dissolution of Muslim Marriages Act, 1939, which provides the grounds on which women can obtain a divorce, and the uncodified civil law. Civil marriages and inter-community marriages and divorces are governed by the Special Marriage Act, 1956 .Other community specific legislation includes the Native Converts’ Marriage Dissolution Act, 1866 that allows a Hindu to appeal for a divorce if a spouse converts to Christianity.
Grounds for Divorce
In most Western nations, there are approximately 16 distinct reasons for which divorces are granted. In India,
however, only five main reasons are generally accepted as sufficient grounds for divorce.
Adultery. While no formal definition of adultery exists, it does have “a fairly established meaning in matrimonial law”, namely “the voluntary sexual intercourse of a married man or woman with a person other than the offender’s wife or husband”. While the law considers it valid grounds for either sex, adulterous women are “judged more harshly” than men.
The various religious regulations are not unanimous on this issue. The law regarding Hindus allows divorce to be granted on the grounds of infidelity of either husband or wife. The Christian law, however, would traditionally not have granted a divorce to a woman solely on the grounds of adultery. She would have had to prove another violation, such as cruelty .A recent Bombay High Court decision “recognised cruelty and desertion as independent grounds for the dissolution of a Christian marriage,” striking down a section of the law that allowed for an unconstitutional distinction between the sexes.
Desertion. The three main components of desertion are the “disruption of cohabitation, absence of just or reasonable cause and their combination throughout three years” before the abandoned spouse may petition for a divorce. There also must be an obvious intent on the part of the offending spouse to remain permanently apart from the other. This statute also applies to cases in which a spouse has been heard from for at least seven years.
Cruelty. As with adultery, “the definition of the type of behavior that constitutes cruelty varies according to the gender of the petitioner” of the divorce. “Despite the fact that cruelty is often equally available to husbands and wives, the way in which the law is interpreted and applied suggests that women and men are evaluated by rather different standards” .This category includes both physical and mental abuse and neglect.
A court decision made in early May 1997 made cruelty sufficient grounds for a Christian woman to obtain a; previously, the law required both adultery and cruelty to be proven. The national Indian Christian community seems to have embraced this judgment.
Impotency. This refers to the physical inability of the couple to consummate the marriage or the refusal by one spouse to do so. Some cases have established that sterility can be construed to mean non-consummation if the other partner is not aware of the condition before the marriage.
Chronic Disease. Both mental and physical illnesses are included in this category, as well as sexually transmitted diseases. Not all religions recognize identical diseases as grounds for divorce. Christians and Parsis do not allow divorce for a sexually transmitted disease or leprosy while the other communities do.
Divorce under Muslim law
Muslims are governed by their personal laws under which “Nikah” (i.e. marriage) is a contract and may be permanent or temporary and permits a man 4 wives if he treats all of them equally. To have a valid “Nikah” under the Muslim Law, presence of a Qazi (Priest) is not necessary. Merely a proposal in the presence and hearing of two sane males or one sane male and two sane female adults, all Muslims and acceptance of the said proposals at the same time constitute a valid Nikah under the Muslim Personal Law. A husband can divorce his wife without any reasons merely by pronouncing thrice the word “Talak”. However for a Muslim woman to obtain divorce certain conditions are necessary.
