Divorce under Hindu law

Author: Pragaati gupta.

college name: Deen Dayal Upadhyay Gorakhpur University


Divorce is a process by which the marriage is dissolved i.e. comes to an end after dissolution of the marriage , the parties revert to their unmarried status and are free to marry again. In Hindu society, the religion plays a important role and if we see divorce in religious aspect then we come to know that there is not such things mention there ,in religious aspect the Hindu marriage is considered as sacramental union and this union can not come to an end.

The Hindu marriages are considered as sacramental union because of three elements that are they are considered, permanent and indissoluble union, eternal union and holy union. In Hindu religion, marriage is considered as permanent union and it can not be dissolved easily. Marriage is a tire which once tied can not be untied. Marriage is an eternal union and is not the union for this life only but for live’s to come. According to Manu- husband and wife are united not only for life but after death also. In Hindu religion, marriage is considered sacramental union and primary objective of marriage is to perform religious and spiritual duties ,begetting son and discharging his debt to his ancestors.

In case of Bhagwati Sharan Singh vs Parameswari Manohar Singh[i],the court held that marriage is not only a sacramental union but contract also. So,the concept that marriage is a contract comes because marriage can come to an end through divorce and it is also not an eternal union because of introduction of ‘Hindu Widow Remarriage Act’.


Theories of divorce

When it comes to divorce there are three theories on which divorce is bases on-

1. offence or guilt theory of divorce

2. consent theory of divorce

3. irretrievable breakdown of marriage theory of divorce

According to guilt theory, marriage can be dissolved only if one of the parties to marriage has, after the solemnization of the marriage, committed some matrimonial offences. The offence must be one that is recognized as a ground of divorce. The another theory of divorce is consent theory of divorce in which the marriage can come to an end by mutual decision. The next is irretrievable breakdown of marriage theory of divorce , there are two modes of divorce i.e First, The law lays down that if a marriage has broken down beyond any possibility of repair then it should be dissolved. Second, the legislature lays down the criterion of breakdown of marriage and if that is established , the courts have no option but to dissolve the marriage.


Divorce in The Hindu Marriage Act,1955

According to Section-13 of The Hindu Marriage Act,1955 there are various grounds Adultery, cruelty, desertion, insanity, leprosy, veneral disease, conversion, renunciation of world, mental disorder, judicial separation and decree of restitution of conjugal rights not to be followed. These are the grounds available to both husband and wife for decree of divorce .Then there are grounds that are only available for wife under section-13(2)-another marriage by the husband, committing of offence if unnatural sexual intercourse ,decree of maintenance against husband and option of puberty .Adultery may be defined as consensual sexual intercourse between a married person and a person of the opposite sex, not the other spouse, during the subsistence of marriage. Insanity include suffering from mental illness ,or of unsound mind or suffering from psychopathic disorder .In case of leprosy two condition are necessary, it should be virulent and incurable. Venereal disease is aground for divorce only if it is in communicable form. Conversion include when the respondent has ceased to be a Hindu and he has converted to another religion. For renunciation of world two condition must be there –the respondent must have renounced the world and must he must have entered some religious order .In Ram Narayan v. Rameshwari[ii],the Supreme Court said that in schizophrenic mental disorder ,the petitioner should prove not merely the said mental disorder ,but should not also establish that on that account the petitioner could not reasonably be expected to live with the respondent.

As we can see despite of so many grounds available the husband and wife can not take divorce in hindu society because of religious and sacramental belief. They end up compromising and living a miserable marital life.


Divorce in India

If we talk about India, it has lowest rate in divorce in world .Only 1 percent marriage in India end in divorce but the number of people who suffers from it is large. The rate of divorce in Hindu society is also very less out of 1000 married Hindu only 2 are divorced .The major reasons people in India can not take divorce so easily are there is a very long procedure of divorce in India, Moreover, the women in India have no voice especially in rural areas of India. They are not aware of their rights so they suffer a lot .Here, morality is given so much priorty and sanskar matters a lot more than happiness of person.1.36 million people in India are divorced. That is equivalent to 0.24% of the married population, and 0.11% of the total population.More strikingly, the number of people separated is almost thrice the number of people divorced - 0.61% of the married population and 0.29% of the total population.More women are divorced and separated than men.Divorce rates in north-east states are relatively higher than elsewhere in India:


Mizoram has the highest divorce rate (4.08%), more than four times that of Nagaland, the state with the second highest rate (0.88%).Gujarat reports the maximum number of divorce cases among bigger states - with a population of more than 10 million - followed by Assam, Maharashtra, West Bengal and Jammu and Kashmir.Meghalaya has the most number of cases of separation, followed by Mizoram, Sikkim, Kerala and Chhattisgarh. Three of these five states are in north-eastern India. 0.24%, it was as high as 4.08% in Mizoram. In Tripura, it was 0.44% and 0.32% in Kerala. The tribal-dominated Chhattisgarh recorded 0.34% and Gujarat 0.63%.Uttar Pradesh has the highest pendency of divorce cases followed by Kerala, which has 61,970 divorce cases pending in its family courts, according to information from the Ministry of Law. The urban divorce rate (0.89%) is higher than the rural rate (0.82%),States like Andhra Pradesh, Karnataka, Kerala, Maharashtra, Jharkhand, Odisha, Chhattisgarh, Gujarat, Tamil Nadu and Himachal Pradesh have higher rates of divorce in rural areas, than in urban areas. Delhi, Bengal, Punjab, Haryana, Bihar, Rajasthan, UP, Assam, MP, J&K and Uttarakhand have higher urban rates of divorce than in rural areas.


Why divorce rate in India is low?

The reason behind low divorce rates in India are-

1. Value and belief

2 .Patriarchial society

3.Low female workforce participation

4.Panchayats as Mediators

5.Religion

6.Gender inequality

Procedure of Divorce Divorce by mutual consent can be obtained within six months, but no petition in such a case can be filed within first year of marriage. There also has to be gap of six months between the first and second motions. The court can waive this cooling off period in some cases. So in case of divorce by mutual consent, it usually takes 18-24 months. In case of a contested divorce, the period is longer, ranging from three to five years because of complications and possibility that either party can challenge the decision in the High Court and Supreme Court. What is the cost involved? The court fee is nominal at Rs 15, but the bulk is taken up by lawyer’s fees. While women can avail of free legal services by getting an advocate from the legal aid cell, private lawyers’ fee can vary from Rs 10,000 to Rs 1 lakh, depending on the type of divorce and duration involved. Advocates can charge on the basis of each hearing or as a lump sum on an annual basis. Women can also ask for litigation expenses from husband via court, but the amount granted by the court is usually less. Which documents will you need? Depending on the type of divorce, the court may ask for:


· Address proof of husband and wife.

· Details of professions and current earnings of husband and wife.

· Certificate of marriage.

· Information regarding family background.

· Photographs of marriage.

· Evidence to prove that the husband and wife have been living separately for more than a year.

· Evidence proving failed attempts at reconciliation.

· Income tax statements.

· Details of property and assets of the parties.

· Other documents too may be needed, depending on facts and circumstances of the case.

What are the steps involved?


· In Mutual Consent divorce

STEP 1: First Motion involves joint filing of divorce petition. STEP 2: Husband & wife appear before court to record statements after filing of petition. STEP 3: Court examines petition, documents, tries reconciliation, records statements. STEP 4: Court passes order on First Motion. STEP 5: Cooling off period of six months given to couple by court to rethink decision. STEP 6: Filing of Second Motion is done within 18 months of First Motion. STEP 7: Decree of divorce passed by the court.

· In Contested divorce

STEP 1: Filing of petition by the husband or wife. STEP 2: Court issues summons and seeks reply from the other spouse. STEP 3: Court may suggest reconciliation. STEP 4: Examination and cross-examination of witnesses and evidence. STEP 5: Counsels for both parties present final arguments. STEP 6: Decree of divorce passed by the court.

Divorce during Covid -19

Mumbai, which tops the list of maximum coronavirus cases in the country, also saw the highest number of divorce cases being filed during the lockdown period.Post-corona, the city saw a nearly three-fold increase in cases pertaining to divorce and women-related issues being filed. From an average of 1,280 cases in a month, their numbers went up to it 3,480 during the lockdown. Delhi was at the second spot.The number of cases in delhi went from 1,080 to 2,530. Bengaluru was on the third spot and Kolkata at fourth.the cases in Bengaluru went from 890 to 1,645 and cases in Kolkata went from 350 to 890.


Conclusion

We know that divorce was not so common thing in Hindus it was considered a sacrament but slowly and gradually the things are changing and people are accepting the concept of marriage.Then,we saw how modernization in the socities had vastly changed the marriage ties between the couples ,there are various factors governing these are like womens are now more independent and financially stable.Other reason is that people are more aware about their rights.After that we have seen how lives are changed after divorce leading to various problems like legal effects which consist of joint property ,custody of children etc.Divorce affects the children very much and mental health of couples are also affected because of divorce .To overcome the problems regarding divorce in India and its after effects we have to spread awareness among people.Even in this modern world, couples in rural areas suffer from their marriage they can not take divorce so easily, and they are unaware of their rights.A lot more initiatives should be taken by government to make people aware about their rights. Non-governmental organisations should also look forward to these problems. A lot more knowledge should be spread in rural areas to married people. The legal procedure should be made easily understandable and less lengthy. People should start giving priorities to themselves over their religion.

REFERENCE

1.THE HINDU MARRIAGE ACT,1955

2. THE INDIAN EXPRESS

3.THE HINDU

[i]( 1952) 54 BOMLR 725 [ii] 1988 AIR 2260,1988 SCR Supl.(2)913

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