DIVORCE | LawFoyer

Author-Muskan Srivastav, Amity University, Lucknow

ABSTRACT

Divorce is a source through which a husband and wife officially and legally can end their marriage. It is a formal process of ending a marriage, it’s not like a temporary separation. If someone gets a divorce it means that their marriage has ended and is officially over. Divorce carries out both emotions happy and sad. it’s not necessary in everyone’s case that divorce is peace but in some cases it is. Now, that’s another thing no one values the emotion of marriage and uses divorce as a toy. whatever law is made in India or in any country it has both positive and negative impacts with it, divorce is also like this.

There are many grounds for divorce. There are many reasons why one can decide to take a divorce either because of constant conflict or because of other things like going to die soon because of a disease or getting caught cheating, and let’s not assume that the reason for all this will always be men, no it’s not always men, sometimes it’s women who misuses their rights and cheat and then lead to divorce. Both men and women are equally responsible for the mishap in the society. But at the end of the day, divorce is the only way to end a toxic relationship which could be dangerous for the couples and children in the future.

Keywords (Minimum 5): divorce, emotion of marriage, ending of toxicity, misuse rights, positive and negative impact

INTRODUCTION

If two people can’t compromise with each other and are victims of a toxic or forced relationship they need to be separated, and for that law exists. Divorce, it’s a mean or a way for a person to escape from a forced and stressful relationship through a legal and formal process, if they are separated in the eye of the law then no one can dare to interfere in their matter or force them to stay in a relationship. In earlier days it was not possible to get a divorce or get separated from an unwanted or toxic partner, it is one of the main reasons why domestic violence took place in large numbers in every household.

Divorce is nothing new it has been coming in power for years to years but there is this difference that divorce was not mutual in earlier days, it was all up to the man, if he wants to stay with his wife he will and if he doesn’t then he would simply send their wife back to their home, they are not official separated but living separately. In other countries, the divorce system was famous and was enacted, but in India, it took time for women to realize their rights and to take a stand for themselves. Because in India it was taught to every girl that their husband is their everything and that they should just follow their husband’s order and accept their toxic and immoral behavior as they are their “Pati Parmeshwar” and that they should worship them. But that’s a relief that now women in India are aware of their rights they know what is wrong and what is right, if they should stay or just let it go.

Meaning & Explanation

Divorce is a source and an act by which a valid marriage can turn into void and null in the eye of the law. The main motive of divorce is to free the other party to live their life as they want or remarry if they plan to do so. Divorce generally imposes the nullification or restructures of the legal duties and obligations of marriage. It can be said as a lawful conclusion of a marriage by the court or other qualified body. People decide to get divorced when things get too tangled up and out of control. If two people cannot compromise for an hour, a second, or a day there is no chance that they would be able to spend the rest of their lives together. By keeping all this in mind that this not compatible individual’s life would become hell in the future if lived together, a law was formed known as Divorce. Divorce declares a marriage null and void in the eye of the law. Divorce is surely needed as a safety law, everyone needs to compromise with their partner in married life but compromise includes things like trust, giving independence, mutual understanding, compromising with each other’s unexperienced habits if have one, letting each other live their life as they want, and no single dominant partner, both to be treated equally. These are some of the things which are needed between a married couple but the main thing is mutual understanding, if this is not between the couple then the marriage is long ago over.

If two individuals in a marriage are not compatible it is hard for them to live, it would feel like jail or hell for them every day as if they are prisoned in a forced relationship, and that’s why they need to be separated and for that a legal formal process ‘DIVORCE’ has been made. Though in India it is not just a paper away work, it took a lot of courage to come to this decision because some religions or societies still don’t accept a divorcee in a society, and they get a lot of backlash for being a divorcee.

Background & Evolution

Divorce known as a legal way for separation, was found and practiced in British India in the year 1869 and this law was not really for Indians it was generally made for Christians who were looking for a way to end marriage lawfully, resulting in divorce. In India it was not easy to generalize the system of divorce, Indian society would never accept a divorcee in a society so they would not let a couple end their relationship. Even if they are in a toxic relationship, they need to stay just like this and bear with it for the rest of their life. This later on resulted in an increasing rate of domestic violence. In India divorce was not normalized at that time they gave a lot of importance to the patriarchy and women were not educated enough to be aware of their rights. Later on, in the year 1955, an act was formed known as the Hindu Marriage Act, 1955. It was made to let people file for divorce under this act.

The Hindu Marriage Act is established to help both bride and groom to safeguard their fundamental rights and right to live without any violence and discomfort. Several laws were made under this act in favor of women, and that was needed because in earlier times women tended to suffer a lot more than men. sometimes men also suffer in a relationship but the majority are always women. After the act was made women started getting aware of their rights and started to take a stand for themselves. They realized that they don’t need to be in a toxic relationship forcefully they can end things if it’s getting overboard. It doesn’t mean that a husband or wife is cheating on their partner and for remarriage they need to let go of their partner so they file for divorce, if such a case happens the other partner can reach out to the court for restitution of conjugal rights if the reason of divorce is not a reasonable and legal excuse, they can reach court for that.

The process of divorce has evolved a lot in the present time the rate of divorce is also getting high in India which was not possible in earlier times, but it doesn’t mean that it only has a positive impact, it has both positive and negative. Positive because now both individuals can live freely and however, they want, and negative because by all these divorce processes children suffer a lot they get childhood trauma, they get the incomplete love of parents, as they experience the pain of separation from loved ones in a very young age. Divorce has evolved a lot over time, everyone is now aware of the process of ending a toxic relationship that they won’t dare to spend the rest of their life.

Comparison with other Countries

India has the lowest rate of divorce worldwide. Generally, western societies traditionally have higher divorce rates than Asians. It’s not a great thing that India has the lowest rate of divorce because it means that they are forced to stay in an unwanted relationship. After all, they are afraid of the backlash they would get if they get a divorce. India is a diverse country and values their culture a lot, it is a country where people still decide to stay in a joint family and depend on each other.

On the other hand in Western culture, no one stays in a joint family even teens start living on their own by coming to an age, when they don’t care much about society culture, and norms they do what they like and feel like to do without thinking of society, in western societies an individual’s decision is respected they won’t get judged by the society they don’t fear society’s thought process that much. In India, it is hard for a divorcee to live freely because society would look down on that person rather than feel sympathetic for them and demotivate them by their words.

Unlike in other countries where love marriage is normalized, every individual has the right to marry whoever they want irrespective of their caste, creed, or religion. India is not at all like this, Indian culture doesn’t support love marriage, inter cast, or inter religion much. The majority of Indian weddings are arranged and in arranged marriages, individuals don’t know each other that much which results in a lack of intimacy and love which makes them stay with their partner longer. Another difference is the financial dependency of women on men, In western culture very few females are dependent financially on their husbands, the majority are financially independent while in India majority of females are dependent on their husbands financially, nowadays this thing is changing and women in India is also getting financially independent on their own but majorities are not really financially independent, they depend on their husband, this is the reason why the divorce rate in western countries is much more in comparison to India. In India divorce generally takes place in rich class family, middle class people avoid getting divorced as much as they can.

GROUNDS

In India, divorce is granted mainly on various grounds. These are Adultery, Desertion, Cruelty, mental disorders, chronic disease leprosy; venereal disease, etc. These grounds for divorce in India are mentioned under the Hindu Marriage Act, of 1955.

ADULTERY

Adultery is an act where a person is involved in any kind of sexual relationship, also intercourse outside marriage. If husband or wife is cheating on each other by committing an act of adultery then this single act is enough for the petitioner to get a divorce. Adultery is known as a criminal offense and requires considerable proof to establish it.

CRUELTY

In marriage, if the partner gives physical or mental injury to their partner then a spouse can file a divorce case. The cruelty under the Hindu Marriage Act includes any type of false allegation, excessive demand of dowry, an injury that causes danger to life, perverse sexual act, mental torture, and such types of cruel offenses are defined under this act.

DESERTION

In a marriage if the husband or wife by their own choice disowns his/her partner for some time such as two to three years, then the abandoned spouse can file a divorce case.

MENTAL DISORDER

If one of the partners is suffering from any type of mental disorder that in incurable and results in insanity which may harm the spouse in the future and they won’t be able to stay till last together, then the spouse can file for divorce on the grounds of mental disorder.

VENEREAL DISEASE

If one of the partners is suffering from a serious disease that can be transmitted easily and is communicable, such as AIDS is considered as venereal disease. Then the spouse can file a divorce on the grounds of venereal disease.

There are many more grounds for divorce these were some of them explained in short.

PRINCIPLE

There are certain rules and principles for divorce in India under the Hindu Marriage Act, of 1955, which apply only to Hindu religious people. Every religion has its customs and culture, so some laws are made differently by keeping the religion and customs in mind. Nowadays, even in India, the partners don’t hesitate much to get a divorce and move on in their lives. According to section 13 B (2), if the married couple moves to the court for divorce with mutual consent, a mandatory six-month period is given to them in case they change their mind in these six months. this rehabilitation six-month period was necessary to give, but now there is a change in the rule and it’s not that mandatory anymore, now it depends on the court’s discretion. A civil court can only give the order for divorce. there are other rules and principles which help to understand the divorce process clearly, it helps to understand all the process.

CASE LAWS

Akanksha vs Anupam Mathur

In this case, it was observed by the supreme court that the couple had made a voluntary decision to divorce and that there was no need to make the couple wait another 6 months for divorce. the court decided to dismiss the 6-month time limit and conclude the marriage.

Sangamitra Ghose Vs. Kajal Kumar Ghosh

In this case, the court states that they are fully satisfied that the marriage between the couple has irretrievably broken down because of inconsistency of personality. there has been a total vanishing of an emotional framework in the marriage.

Naveen Kohli v. Neelu Kohli (2006)

This divorce case is based on the ground of cruelty, the Supreme Court restates that if a marriage has broken down hopelessly or irretrievably and there is no possible sign of reunion, then it can be considered a reasonable ground for divorce. The court noticed and concluded that it was a waste to force parties to live together as it would only lead to great disaster.

Statistical Analysis / Data Analysis

India has the lowest divorce rate worldwide.
108 divorces in 2021(0.077)
315 divorces in 2020 (0.022)

Because of patriarchy, male-dominated society, culture, norms, and women’s financial dependency, the divorce rate in India is lowest.

CONCLUSION & COMMENTS

Divorce is not just an ordinary social importance; it is a serious social and psychological significance.in India, it was not easy to get divorced or even think about getting a divorce. Divorce is an escape for those spouses who suffer every minute and hour of suffering in the guilt of living with someone toxic or not compatible with them. Divorce affects the personal and social life of the partner and the whole family members. To safeguard the divorce process from getting misused by any spouse, several grounds were made. These grounds help decide the valid reason for granting a divorce. After 1955 when the reformers introduced the Hindu Marriage Act, 1955, it became easy for the parties to resolve any dispute going on in their married life, and could leave if things got too complicated and hard to handle for the rest of their life. Before 1955, there was no provision for separation or leaving the partner legally. Divorce rates are now increasing because of changes in the mindset of an individual, people are getting educated about their rights and know how to fight for themselves, they come forward and take a stand for themselves and move on in their lives. Though divorce rate of India used to be the lowest and still is the lowest compared to other countries.

REFERENCES

Online Articles / Sources Referred

Cases Referred
1. Akanksha vs Anupam Mathur
2. Sangamitra Ghose Vs. Kajal Kumar Ghosh
3. Naveen Kohli v. Neelu Kohli (2006)

Statutes Referred
1. Hindu Marriage Act, 1995