Indian Divorce Laws and Marriage Dissolution

ABSTRACT

Encyclopedia Britannica defines marriage as a moral, legal, and physical union between a man and a woman in a full communal life to start a family. In India, the institution of marriage is considered to be a sacrament rather than a form of social contract. It is a sacred bond generally between a man and a woman who are expected to fulfill each other’s expectations and balance out each other in different ways while performing their marital duties. However, a disparity and an imbalance in these situations is what introduces the concept of divorce; a formal ending to a marriage. This article aims to discuss the legal framework about divorce and marriage dissolution in India.

INTRODUCTION

A divorce is the dissolution of a marriage. It denotes the breakdown of the marriage contract. Divorce technically refers to a court order dissolving a marriage. When a couple files for divorce, their legal marriage ends, and they are no longer referred to as the husband and wife. With a divorce, the couple can resume their previous status as unmarried. They are free to find other partners. Marriage relations, rights, and obligations are dissolved through a divorce.

In the past, society disapproved of divorce since many people believed that marriage should be a lifelong commitment. But in recent years, this idea has altered, and now, divorce is a standard option for marriages that don’t work. Infidelity and hostility towards one another are particularly the most frequent causes of divorce. When one or both couples don’t respect one another, the marriage becomes strained and hard to fix; the crack grows more and more prominent until, sadly, it leads to divorce. After trust is broken, it is extremely challenging to reconstruct a connection.

DIVORCE IN PRE-INDIA

Before India became independent, divorce was not as common as it is now. This was because divorce was seen as being against their religion’s teachings and that marriage was regarded as being extremely sacred. There was only one law governing divorce in British India, the Divorce Act of 1869, and it only applied to those who identified as Christians. But aside from that, it appears that India has no laws governing the divorce procedure.

Only eight years after gaining independence did the Parliament of independent India contend that it was necessary to pass a law on marriage and other related regulations. The Hindu Marriage Act, of 1955 was passed as a result. 

THE LAW

Every major religion in India has its own divorce laws that apply to marriages between members of different faiths in that country. Many of these laws are distinct from one another.

The Hindu Marriage Act of 1955 governs Hindus, Buddhists, Sikhs, and Jains in India. The Indian Divorce Act of 1869 governs Christians, Parsis, and Muslims, while the Dissolution of Muslim Marriages Act of 1939 establishes the legal grounds for divorce for women and codifies uncodified civil law. The Special Marriage Act of 1956 governs civil unions, inter-community unions, and divorces.

GROUNDS FOR DIVORCE

●       Adultery: Adultery is having liaisons sexually with someone other than one’s spouse. Adultery is viewed as such a severe evil that it was once considered a crime. Adultery is punishable by up to five years in prison, a fine, or both. In Section 497 of the Indian Penal Code, 1860, adultery is defined. It was claimed that adultery would be charged against anyone who willfully engages in sexual activity with the wife of another man without that guy’s consent. The Indian Penal Code’s adultery statute, Section 497, was ruled illegal by the court in 2018. In India, adultery is no longer a felony, but it is still grounds for divorce. The Hindu Marriage Act, 1955, Section 13(1) talks about adultery as a ground for divorce.

●       Cruelty: Section 13(1)(i)(a) of the Hindu Marriage Act of 1955 contains the legal provision for divorce on the grounds of cruelty. Cruelty doesn’t have a full definition. Depending on the parties’ circumstances and the judge’s discretion, the degree of cruelty varies from case to case. Torture on any level, either mental or physical, is considered cruelty. The one who feels wronged may file for divorce and use cruelty as justification in court. Courts have frequently ruled that the intention to be cruel is not a necessary component of cruelty as defined by this provision.

●       Desertion: Desertion is listed as one of the grounds for divorce in Section 13(1)(b) of the Hindu Marriage Act of 1955. Desertion is the renunciation of marital responsibilities and duties by the respondent and the unjustified abandoning of one spouse by the other with the other spouse’s consent.

●       Conversion to another religion: Conversion to other religions can also be one of the grounds for divorce, as provided under the Hindu Marriage Act, of 1955. 

●       Unsoundness of mind: According to the Hindu Marriage Act of 1955 and the Muslim Marriages Act of 1872, the respondent’s insanity or madness is also a reason to dissolve the marriage.

TYPES OF DIVORCE

●       Divorce with mutual consent: The Hindu Marriage Act of 1955’s Section 13-B allows for divorce with the consent of both parties. Since it was only included in the Act in 1976, this idea is more recent than contentious divorce. This clause enables the parties to reach an amicable divorce agreement, with the court just providing administrative support. The terms of the divorce are determined by the parties. A mutual consent divorce appears to be significantly less expensive and quicker than a disputed divorce because fewer solicitors and members of the court are involved.

●       Divorce without mutual consent: Without consent, a divorce is frequently referred to as a fault divorce or a contested divorce. Sections 13 (1) and (2) outline the numerous grounds for divorce that may be asserted in court; the distinction between the two is that while both parties may file for divorce under Section 13 (1), only the wife may do so under Section 13 (2). 

●       Irretrievable breakdown of marriage: The Hindu Marriage Act would be amended to include Section 13C, which, if added, would define irretrievable breakdown of marriage. The Marriage Laws Amendment Bill, 2010, which has already been approved by the Rajya Sabha but has not yet been approved by the Lok Sabha, calls for this change. The Supreme Court has occasionally granted a divorce by invoking the ground of irretrievable dissolution of the marriage, even though the provision has not been formalized.

CONCLUSION

Indian society has changed significantly in the past decade. However, attitudes regarding divorce differ across India. Despite the fact that divorce is more common than it formerly was, our culture still does not view it favorably. Couples struggle to make changes in their marriages as a result, rather than making the difficult decision to obtain a divorce and be happy. Divorce is still viewed as a struggle between good and wrong and not as a decision made by two people to live a better life.