Evaluating the Impacts of the law on Divorce: Has it Increased the Cases of Divorce or Reduced them?

INTRODUCTION

Marriage is regarded as an eternal union in India, and no man may break it. However, as time went by, divorce became acknowledged as a frequent practice, and it thus became a major source of concern. Divorce is becoming more popular as couples see it as a solution to problems that may be resolved via conversation and compromise.

Marriage is a sacred bond between a man and a woman in India, and their union is recognized by society as husband and wife. To fulfill their partner’s expectations and complete their marital obligations, the pair must maintain harmony in their lives with each other. However, the inequity of such circumstances leads to divorce. Divorce is regarded as one of India’s most serious social issues. Divorce is becoming more common in modern India, which is hurting many people’s personal and social lives. The spouses’ family members, particularly their children, are the ones who are immediately impacted by divorce.

HISTORY

In the past, divorce was considered a sin in several regions of India. Women had less right to speak for themselves in a patriarchal culture, hence they had no right to divorce. In the early years after independence, the situation was very similar. It was in the 1970s that women were granted equal rights in all areas, including succession, divorce, and so on. Amendments to the Hindu Marriage Act 1955 were made in 1976, allowing for divorce by mutual consent and judicial separation. The Supreme Court recently ruled on Muslim men’s ability to wear Triple-Talak. As a result of industrialization, many combined families disintegrated and relocated to cities. That’s when people changed their attitude towards divorce. Changes in norms and values attached to marriage have played a major role in the break

FAMILY LAWS

Personal laws of Hindus, Muslims, Parsis, Sikhs, Jains, and Christians share similar characteristics. They all see the man as the head of the home, treat women as chattel, and regard the father as the natural protector. They also have double standards when it comes to sexual morality and property ownership.

The Hindu Marriage Act, 1955 recognizes eight-fault grounds for divorce which is defined under section 13(1) of The Hindu Marriage Act, 1955 to both the spouses for seeking divorce are:

Any marriage that has been solemnized, whether before or after the commencement of this act, may be dissolved by a decree of divorce on a petition brought by either the husband or the wife, on the grounds that the other party:

Adultery; Cruelty; Desertion not less than two years for a continuous period; Conversion to another religion; Insanity; Venereal Disease; Renunciation; Presumption of death

The Indian Divorce Act, 1869 recognizes nine-fault grounds for divorce which is defined under sub-section (1) of section 10 of The Indian Divorce Act, 1869 on which either spouse can seek divorce are:

Any marriage that has been solemnized, whether before or after the commencement of The Indian Divorce (Amendment) Act, 2001, may seek divorce on the following grounds:

Adultery; Conversion to another religion; Incurably insane for a continuous period of not less than two years; Venereal Disease in a communicable form; Presumption of death; Desertion at least for two years Cruelty; Refused to consummate the marriage; Has failed to comply with a decree for restitution of conjugal rights for a period of two years or more after the decree was issued against the defendant.

A woman married under Muslim law has the right to obtain a decree for the dissolution of her marriage on one or more of the following grounds:

That the husband’s whereabouts have not been known for four years.;
For the past two years, the spouse has ignored or failed to provide for her maintenance.
That the husband has been sentenced to prison for a term of seven years or more;
That the husband has failed to discharge his marital obligations for a period of three years without justifiable cause;
That the husband was and continues to be impotent at the time of marriage;
That the husband has been lunatic for two years or is suffering from leprosy or a virulent venereal illness;
That she, having been given in marriage by her father or other guardian before the age of fifteen, can renounced the marriage before the age of eighteen, provided that the marriage has not been consummated;
That the husband is cruel to her;
On any other ground which is recognized as valid for dissolution of marriages under Muslim law.

Basically, all the acts which provide ground for divorce in India have similar grounds mentioned above.In addition to the grounds listed above, Section 27(1A) of the Special Marriage Act of 1954 includes two fault grounds on which the woman can seek divorce on her own: Cohabitation has not been resumed for a year or more after the issuing of a maintenance order under Section 125 of the Criminal Procedure Code, 1973, for those found guilty of rape, sodomy, or bestiality.

Pre-Act Polygamous Marriage; Guilty of Rape, Sodomy, or Bestiality; Non-Resumption of Cohabitation after a maintenance decision; Repudiation of Marriage are all grounds for divorce under Section 13(2) of the Hindu Marriage Act, 1955.

AMENDMENTS

Hindu Marriage (Amendment) Act, 1976

Some provisions are given in the Hindu Marriage (Amendment) Act, 1976 are :

Hindus can obtain divorce on the ground of desertion and cruelty as all the grounds on which ‘judicial separation’ was made were made available. ‘willful neglect’ was added to the meaning of desertion.
With this amendment a single act of adultery was sufficient to get a decree of divorce.
A new clause through which a wife could successfully obtain an order of maintenance under any law, was introduced.
This amendment introduced the provision of ‘divorce by mutual consent’
Recurring attacks of insanity, mental disorders, unfitness for marriage or ability to procreate children, etc., were introduced as some grounds for nullity of marriage.
The scope of “insanity” was widened through this amendment.
It was stated that just after the enactment of this amendment, every matrimonial proceeding was to be conducted and recorded on camera.
The scope of Section 19 was widened.
New Sections related to speedy trial were added to Section 21 of the Act.
Section 15, which stated that , “A divorcee had to wait for one year before remarrying.” Was removed.

Marriage Laws Amendment Bill, 2010

The Hindu Marriage Act of 1955 and the Special Marriage Act of 1954 were amended by the Marriage Laws Amendment. In 2010, it was first proposed in the legislature. On August 26, 2013, the Rajya Sabha passed it. The bill aimed to make divorce laws more ‘women-friendly.’

Some changes that were introduced in the Bill are:

Irretrievable breakdown was introduced as a new ground of divorce through this bill.
A provision of providing sufficient compensation to the wife and children from the husband’s immovable property was introduced through this bill.
Section 13(f) was added. It empowered the courts to provide compensation to the wife and the children from the husband’s inherited and inheritable property once the marriage comes to an end (legally).

Personal Laws (Amendment) Act, 2019

The Personal Laws (Amendment) Act of 2019 was introduced in Lok Sabha on August 10, 2018 and was passed on February 13, 2019. Its aim was to amend 5 acts, that is,

Divorce Act, 1869
Dissolution of Muslim Marriages Act, 1939
Special Marriage Act, 1954
Hindu Marriage Act, 1955
Hindu Adoptions and Maintenance Act, 1956

It introduced the following changes:

Divorce Act, 1869 : Chapter II : – Section 10(1)(iv) regarding leprosy as a ground of divorce was omitted.
Dissolution of Muslim Act, 1939 : Chapter III : – the words ‘leprosy are’ was removed from Section 2(iv).
Special Marriage Act, 1954 : Chapter IV : – Section 27(1)(g) which states ‘leprosy’ as a ground of divorce was removed.
Hindu Marriage Act, 1955 : Chapter V : – ‘leprosy’ as a ground of divorce under Section 13(1)(iv) was omitted.
Hindu Adoptions and Maintenance Act, 1956 : Chapter V : – Section 18(2)(c) which states that, “a wife is entitled to get maintenance from her husband for her lifetime in case her husband is suffering from a virulent form of leprosy” was omitted

According to several surveys and research, India has the lowest divorce rate in the world. The divorce rates in Luxembourg and the United States are the highest, with 87 percent and 50 percent, respectively. Meanwhile, barely 1% of all Indian marriages result in divorce; that is, only 13 marriages out of 1,000 end in divorce. Indians have a strong attachment to their cultures and social ideals, and it is widely assumed that Indian culture and traditions are to blame for the low divorce rate. However, this is not always the case; the country’s unusually low divorce rate reflects a number of unfavorable reasons. A dangerously low divorce rate indicates illiteracy, financial insecurity, a lack of competent legal equipment and legal knowledge, underdevelopment, and gender inequity, among other things. This casts a negative light on the country in the global context.

Divorce and divorce rate in India is influenced by various factors like :

Regional differences: Divorce rates vary depending on where you live in the nation. The north-east Indian area has been shown to have a higher rate of divorce than the rest of the country. According to studies, Mizoram has the highest divorce rate, at 4.08 percent. Nagaland, on the other hand, has the second highest percentage at 0.88 percent. The explanation for this disparity is because, according to the matrilineal system, women in the north-east have a greater social position. States with a strong sense of patriarchy, such as Rajasthan, Uttar Pradesh, and Bihar, have a substantially lower divorce rate.
Difference between urban and rural places: There is a distinction between divorce-related situations in urban and rural settings. It has been noticed that divorce rates are higher in metropolitan regions than in rural areas. Low literacy and a lack of legal understanding in Indian communities might be major factors in this disparity. In rural regions, the establishment of Panchayats aids in reducing the frequency of divorces and separations by settling disagreements between spouses.
Differences based on religion : According to a survey released on live mint, 2 out of every 1,000 married Hindus and 3.7 out of 1,000 married Muslims are divorced. This means that when population and marital status are taken into account, Muslims are more likely than Hindus to be divorced.
Gender difference : a huge gender divide exists in matters related to divorce. The gender gap leads to more women being divorced and separated because men tend to remarry

Men’s and women’s perspectives have shifted as the conventional framework of sex roles has changed. Women now have more alternatives and are less reliant on males, which encourages those who are unhappy in their marriage to divorce. Divorce is a catastrophe that affects both couples, children, and society. Children of divorced parents frequently encounter a slew of issues following their parents’ divorce. According to research, children experience emotional discomfort following their parents’ divorce.

CONCLUSION

Finally, I’d like to state that, as a result of urbanization, divorce is becoming a serious issue in India. Divorce is a solution to a problem, and not all issues should result in divorce. Couples should work together to address difficulties and modify them as needed. In India, the notion of divorce has developed significantly throughout time, with several new laws and revisions to existing ones. Divorce laws have evolved over time as society’s demands have changed; these modifications were created only to meet the needs of a dynamic society. Divorce rules have been modified to be more women-friendly, and many new additions to the processes have been added, such as the use of video conferencing throughout the hearings.

It has also been noted that the divorce rate in India is increasing as individuals become more aware of their rights. Divorce is increasingly considered as a way to break out from terrible marriages and live a more tranquil life, rather than as a social taboo. Couples who are stuck in terrible marriages and suffering numerous challenges might seek a divorce and restart their lives. There is still more to be done in terms of divorce legislation, and social, moral, and cultural difficulties must be overcome as well.