Divorce is a legal process that terminates a marriage between two people. In some cultures and societies, marriage is viewed as a lifelong commitment that is not to be broken lightly, while in others, marriage is seen as a more fluid and adaptable arrangement that can be terminated if it no longer serves the needs of the individuals involved.
In India, divorce laws have evolved to reflect changing attitudes and social norms. For many years, divorce was not widely accepted in Indian culture, and it was difficult for individuals to obtain a divorce. However, in recent years, the Indian government has recognized the need to modernize divorce laws and make the process of divorce more accessible and equitable for all.
One significant change in Indian divorce law came in 1955 with the passage of the Hindu Marriage Act. This law allowed for divorce in cases of cruelty, adultery, desertion, conversion to another religion, or incurable insanity. Before this law, divorce was only available in certain rare cases, such as impotence or venereal disease.
In the years since the Hindu Marriage Act (HMA) was passed, other laws have been enacted to further refine the process of divorce in India. For example, the Special Marriage Act of 1954 allows couples of different religions or nationalities to marry and divorce, while the Muslim Women (Protection of Rights on Divorce) Act of 1986 established provisions for the payment of alimony and other financial support to divorced Muslim women.
The divorce laws in India are also modified as per the need of the time. It is, therefore, necessary to understand the new rules for divorce in India in 2022-2023. But before it, let’s understand the common grounds for divorce
COMMON GROUNDS FOR DIVORCE IN INDIA
- Mental illness under section 13(1)(iii) of the HMA, 1955 refers to any mental disorder or insanity that makes it impossible for the spouses to live together. In Vinita Saxena v. Pankaj Pandit (2006), the Delhi High Court held that the husband was suffering from schizophrenia and was unable to perform his marital duties, making it impossible for the marriage to continue.
- Presumption of death under Section 13(1)(iii) of the Hindu Marriage Act, 1955 refers to the situation where one spouse is missing and presumed to be dead. If one spouse has been missing for seven years or more, and there is no information about whether the spouse is alive or dead.
- Renunciation refers to the situation where one spouse renounces the world and becomes a sanyasi or ascetic.
- Impotency: If one spouse is unable to engage in sexual intercourse and the other spouse is not aware of this fact at the time of marriage, it can be ground for divorce under Section 12(1)(a) of the Special Marriage Act, 1954.
COMMON GROUNDS FOR DIVORCE WITH AMENDMENTS
- Adultery refers to voluntary sexual intercourse by a married person with someone other than their spouse. It is a ground for divorce if the other spouse can prove it in court. In September 2018, in Joseph Shine v. Union of India, the Apex Court declared Section 497 of the IPC which made adultery a punishable offense for men, unconstitutional and struck it down. It was held that punishing the person who committed adultery is arbitrary and that Section 497 was regressive as it considered a woman as a ‘property’ or chattel of a man/husband. The Supreme Court held that it would however remain a civil ground for divorce Section 13(1)(i) of the HMA, 1955. Now, both spouses can file for divorce not only the one who was cheated on.
- Irretrievable Breakdown of Marriage means that the marriage has broken down to such an extent that it cannot be repaired, and there is no possibility of the spouses living together as husband and wife. In cases where the spouses are living separately for a considerable period and attempt at reconciliation have failed, the courts may consider the marriage to have irretrievably broken down. Naveen Kohli v. Neelu Kohli (2006), SC held that irretrievable breakdown of marriage is a valid ground for divorce, even though it is not specifically mentioned in the Hindu Marriage Act. The court also held that the requirement of living separately for a certain period, which is a prerequisite for obtaining a divorce on the grounds of mutual consent under Section 13B of the Hindu Marriage Act, can be waived in cases where the marriage has irretrievably broken down. The decision in the case of Hitesh Bhatnagar v. Deepa Bhatnagar2018 has been significant and has provided a way for couples to obtain a divorce even if they do not meet the requirements for divorce on other grounds such as cruelty, desertion, or adultery and not specifically mentioned in the HMA.
- Conversion u/s 13(1)(ii) of the HMA, 1955 refers to the situation where one spouse converts to another religion and abandons the other spouse. If one spouse converts to a different religion, and the other spouse does not wish to follow suit. In the case of Sarla Mudgal v. Union of India (1995), the Supreme Court held that a Hindu marriage could only be dissolved by a court decree and that conversion to another religion would not dissolve the marriage. However, if one spouse converted to another religion and ceased to be a Hindu, it could be a ground for divorce.
- Desertion u/s 13(1)(ib) of the HMA, 1955 refers to the situation where one spouse abandons the other for a continuous period of two years or more without any reasonable cause or consent. In the case of Bipinchandra Jaisinghbhai Shah v. Prabhavati (1956), the Supreme Court held that desertion must be voluntary and must continue for a minimum period of two years, without any reasonable cause or justification and had no intention of returning. Under the new law, the period is reduced to a continuous period of one year.
- Cruelty is the most common ground for divorce in India under Section 13(1)(ia) of the HMA, 1955. It refers to any physical or mental harm caused by one spouse to the other that makes it impossible for them to live together. In the case of Naveen Kohli v. Neelu Kohli (2006), the Supreme Court defined cruelty as “conduct which is of such a nature that the petitioner cannot reasonably be expected to live with the respondent.” The 2023 new law, now includes withholding financial support or denying access to a child.
OTHER RECENT CHANGES IN HMA, 1955
- Cooling off period, not a requirement: The Indian Supreme Court has recently stated that the 6-month waiting period for divorce under Section 13B(2) is discretionary and not mandatory, giving lower courts the ability to expedite divorce if both spouses agree to terms. Under the new regulation, it is no longer required and is left to the discretion of the court. The court may determine, based on the facts & circumstances of the given case, whether a six-month rehabilitation period is required or if the couple should be permitted to divorce immediately. The court’s purpose in implementing a cooling-off period is to prevent rash decisions and allow time for reconciliation. However, if there are no chances of reconciliation and a fresh start is deemed necessary, the court should have the power to waive the waiting period.
This was evident in the Supreme Court’s decision in the Akanksha vs. Anupam Mathur case. The court was convinced that the couple had made a deliberate choice to divorce, and there was no need to make the parties wait another 6 months for divorce. The court decided to suspend the six-month timeframe and dissolve the marriage. Soni Kumari vs. Deepak Kumar 2016 and Nikhil Kumar vs. Rupali Kumar 2020, the Supreme Court exercised its power to grant a decree for divorce and waive the cooling-off period based on the facts and circumstances of each case
- Unconstitutionality of Triple Talaq: As per Muslim law, merely saying ‘Talaq’ three times can be the basis of divorce in India. but in the 2017 case of Shayara Bano v. Union of India, the supreme court declared the practice of triple talaq unconstitutional. The verdict was delivered by a five-judge bench led by Chief Justice of India, Justice Jagdish Singh Khehar. The court found that triple talaq was discriminatory against women and violated their fundamental rights to equality and life as guaranteed by the Indian Constitution. The ‘Triple Talaq‘ has now been declared unconstitutional and has no significance in the eyes of the law as per the new divorce rules 2023 in India
- Marriage Laws (Amendment) Act, 2013: it can be advantageous for maintenance purposes because it gives wives the right to claim their husband’s share of immovable property acquired during their marriage in cases where the marriage has irretrievably broken down. However, this benefit is only applicable in cases of irretrievable breakdown of marriage and not in other divorce cases. The wife is entitled to claim a share of the property acquired by the husband before or after their marriage under Section 13F of the Amendment Bill. The Bill is limited to irretrievable marriage breakdowns and does not apply to other situations. In addition, the Bill grants women the right to object to divorce based on financial difficulties, but not the husband.
- Changes in the Christian Divorce Laws: The attitude of Christian law on divorce has changed. A Civil Court, not an ecclesiastical institution, must grant the divorce decision. This is required because the divorce order creates a claim against the global community. The Molly Joseph v. George Sebastian decision establishes the law on the matter (1996). According to the decision, divorce in personal law cannot overrule the legislation. Furthermore, if personal law approves divorce and the individual marries someone else, it is considered bigamy. As a result, only civil courts have the authority to decide on divorce, Christians. Any order made by personal law or the Ecclesiastical Tribunal is superseded by the order or decision of the Civil Court.
DIVORCE PROCEDURE IN INDIA
The procedure for obtaining a divorce in India is governed by the Code of Civil Procedure, 1908, and the Hindu Marriage Act, 1955. The process involves filing a divorce petition, followed by a trial in court, where both parties present their evidence and arguments. The divorce can be either contested or uncontested, depending on whether the parties agree on the terms of the divorce or not.
The time frame for obtaining a divorce in India varies depending on the complexity of the case and the backlog of cases in the court. In general, it can take anywhere from six months to several years to get a divorce in India.
DIVORCE STATISTICS IN INDIA
The divorce rate in India has been steadily increasing over the years, reflecting the changing attitudes towards marriage and family in the country. According to the National Family Health Survey (NFHS) conducted in 2019-20, the divorce rate in India has doubled in the last decade, from 0.7% in 2005-06 to 1.4% in 2019-20. However, the divorce rate in India is still lower than in many other countries, such as the United States, where the divorce rate is around 39%.
Divorce is a complex and emotional decision that has both personal and societal implications. India’s evolving attitudes towards divorce reflect changing social and economic conditions, and the proposed legal reforms suggest a move towards more progressive and inclusive attitudes about marriage and family. As societal norms and values continue to shift, legal change is essential in regulating marital dissolution and resolving disputes between spouses. The court’s discretionary powers play a crucial role in determining the outcome of divorce proceedings, recognizing that marriages cannot always be saved. Therefore, laws and reasons for divorce must be regularly revised to reflect changing social conditions and meet the needs of society.