March 7, 2024

Divorce and different religious aspects

This article is written by Ms. Akriti Gauri 2nd year law student Lloyd Law College, Greater Noida.

ABSTRACT: 

India, a country where people live in diversity, and densely populated country with 1.3 billion. Often referred to as ‘Unity in Diversity’ it is so because India has several languages, cultures, religions, and harmony among the people.  This is the only country where all religions live together and can practice their religion freely. In some laws or circumstances, a marriage is considered as a pious and sacrament relationship but in some circumstances or laws, it is considered as a contract. Earlier the cases of Divorce used to be less and were a very rare phenomenon in society. But with the advent of modernization and westernization, the number of divorces has influx. Divorce generally means alienation of the spouses, where both the parties decide not to be in touch or spend their time together. Like marriages and child custody and guardianship, divorce laws are different from personal laws means they vary from religion to religion. It also affects the children and family structure. 

In this article, we are going to take a look at how divorce takes place, the circumstances a spouse can seek, and different laws that govern the divorce one of the main objectives would be to analyze some factors of how socio-cultural can be influential in the matter of divorce. It will also include a comparative study of divorce from foreign countries. Nowadays, divorce is not a rare phenomenon, it happens frequently now.

Keywords:– Divorce, alienation, Socio-cultural, Influx. 

 

INTRODUCTION:- 

Divorce derives from the Latin worn called ‘divotium’ which denotes the term separation or ‘di’ denotes distance or apart where ‘vertere’ denotes changes. Divorce includes legal action to dissolve the marriage. Divorce is not a new phenomenon even one can trace it in the French dictionary (later 14th century).  The very oldest systematized law was during the ascendancy of King Hammurabi , in 1760 B.C. At that time 282 laws were carved for divorce. Aftermath of this, the world adopted a new concept and it got legalised too. Therefore, the first country to use the term divorce is France. Later on in 1816, it was illegalized. Then, this concept again came in 1837, where a bill was passed to establish a court that would govern the divorce. According to Chanakya, divorce is about impotency, incompatibility, cruelty, and mutual consent. 

Marriage is not only about a man and a woman coming together but two families together. It is always said that marriage is meant more than being together and divorce is not a part of a marriage ideally. The divorce statutory provisions introduced in 1931 i.e. The Divorce Act, 1931 in which both spouses were given the right to petition for divorce. Further, these statutory provisions were taken forward by the Madras Act which ultimately led to the new era of divorce it is considered one of the boldest provisions towards the concept of divorce and named the Hindu Marriage Act, of 1955. In India, divorce is not appreciated by the society itself. It is still a very complex and controversial issue. The report of the Life Change Index Scale says that divorce is the second most stressful thing a man goes through.

 

FACTORS THAT ARE LEADING TO DIVORCE:-

 Recently, in May 2023 the Supreme Court made a statement that ‘love marriage is the one key factor that is leading the divorce in the society’ while hearing a hearing a transfer petition arising out of a matrimonial dispute. 

Incompatibility is another reason for seeking divorce. It means lack of harmony to live together, unresolvable conflicts, or does not understand the emotions of another, different goals or priorities in their life or lack of emotional support. 

Change in the demographic as in the lifestyle has been changed drastically and people have witnessed a major shift from joint family to nuclear family. It contributed to the fact that now the couple wants to live within them only and do not want in-laws with them anymore. 

EFFECTS ON CHILD:

Since divorce is about ending the spouse relationship, it is a child and the family who suffer more. Child can have a bad influence in their mind it is because they are very sensitive and the ones who brunt during these conflicts. The child may become angry, and anxious, and may lose contact with one parent. As per the studies, the depression and anxiety rates in children are higher who have divorced parents. The tension between the parents impacts the child’s psychology. A healthy parent-child relationship is necessary which would help kids develop higher self-esteem and better academic performance. 

 

LAWS:- 

Since India is a country where different religions and cultures are followed by its citizen and Divorce maybe common among all religions and cultures, but the law relating to divorce is not the same in India. There are several Personal Laws that govern or grant a divorce. And these personal laws carry their separate laws that deal with the divorce matter. This is so because personal laws treat marriages according to customs like for Hindus, marriage is the pious relationship or bond that a couple shares whereas in Muslims, they treat marriages as a contract. Therefore, personal laws govern divorce according to their customs and beliefs. These laws are:- the Hindu Marriage Act of 1955, the Shariat Laws, Special Marriages Acts of 1956. 

  • The Indian Divorce Act of 1869, the Christian divorce are govern under the act 1869 in India, where the divorce grounds are:- 

(i) Adultery:- if the spouse is accused of extramarital sex while the other spouse is alive. 

(ii) Conversion:- if the spouse adopt a new religion. 

(iii) Desertion:- if the spouse deserts alone for a specific period. 

(iv) Cruelty:- not treating in a right way.

The very first Dissolution of marriage act of 1869 took place under the jurisdiction of the Governor General in Council. 

 

  • Hindu Marriage Act of 1955: the act recognized the divorce in Hindu law. It only only applicable to Hindus but to Buddhists, Jains, and Sikhs (section 2 of the act) Earlier the act set nine grounds for divorce but nowadays it is eight. These eight grounds are:- 

(i) Cruelty: if the spouse is mistreating or makes the other spouse suffer badly. 

(ii) Conversion: if the spouse has converted the religion into another religion.

(ii) Intercourse: if the spouse has intercourse with the other person. 

(iv) Abandon: if the spouse has left or abandoned for not less than two years. 

(v) No Notice: If there is no apprise about the spouse for seven years or more than seven years. 

(vi) Renounce: if the spouse left all the materialistic things by entering into the religious order. 

(vii) Transmissible disease: if the spouse is suffering from venereal disease. 

(viii) Unsoundness: if the spouse is of unsound mind. 

The very prominent case namely, Vishnu Dutt Sharma v. Manju Sharma where the husband sought divorce because his spouse refused to live together for no reason and the Court favored the husband while highlighting the fact that the spouse cohabitation unjustifiably.  

These above are the grounds where a spouse can seek divorce. The ninth i.e. Leprosy was replaced in 2019 by the Personnel Laws Amendment Act 2019 and hence it is no more grounds to seek divorce. Section 13 of the act provides for the dissolution of the marriage. Apart from these above eight grounds, there are some other grounds as well where only women can seek divorce and they are:- 

(a) If the husband gets married to another woman while the spouse is already alive. 

(b) If she finds that her spouse is guilty of physical harassment. 

(c) If she gets married before attaining the age of majority. 

(d) If the husband is unable to maintain then, a woman can seek divorce. 

Hindu Personal Law provides for both to seek a divorce before the Court of Law. There is a ‘cooling off period’ that is six months to save the dissolution of marriage. It is given to the couple seeking divorce to re-decide or reunite or to proceed with the dissolution procedure, In the case of Amardeep Singh v. Harveen Kaur the cooling off period is not necessary but it is directory and it is at the discretion of the court to waive of the period. 

 

  • Shariat Laws of 1937: in Islam, divorce has been given an exceptional status to marriage, and marriages are considered a form of contract. Earlier women did have not the right to seek divorce until the Dissolution of Muslim Marriage Act was introduced, only the husbands were given the right to repudiate the marriage and why they did so was not important or all he had to say was ‘talaq’. They generally tried not to go to the courts. But now, women and men both can seek divorce. Further, the dissolution of marriage can be divided into the following categories in Muslim law:-

(i) Mutual Consent: to release the spouse mutually from the marital relationship. Here, mutual consent is also known as Mubarak. 

(ii) (ii) Judicial Separation: this can be sought by the wife when the spouse is mistreating her, cruelty, impotency. 

(iii) Judicial Divorce: in this, a Muslim wife can seek divorce before the Court of Law and this is only possible after the introduction of the Dissolution of Muslim Marriage Act. 

(iv) Divorce by the husband: The husband can talaq his wife if he is of sound mind and attained the age of puberty. It is very easy for a husband to get a divorce as he just has to pronounce talaq and operate in the same same it pronounces. 

The concept of triple talaq was challenged in the case of Shayra Bano v. UOI which the Supreme Court held unconstitutional. In the aftermath of the judgment, the Muslim Woman Act 2019 came into the picture and declared talaaq void. 

(v) Divorce by wife: the right given to the wife after the enactment of the Muslim Personal Law Application Act 1937. There are four types of divorce granted to them. 

khula a form of divorce where she is entitled to compensate the husband to dissolve the marriage from her assets. Another form is Ila (means to take an oath) where the husband takes an oath to not have intercourse and if he fails to do so the marriage will dissolve. The third form is when the husband accuses his wife of adultery but fails to prove the same. The fourth one is, Zihar where the husband compares his wife with the other. 

These above are the grounds where divorce can be granted in Muslim or Islam. 

 

  • Special Marriage Act of 1954which provides for the divorce who got married under this act. Irrespective of caste, or religion this act governs marriages and the laws for divorce are likewise to the Hindu Marriage Act, of 1955. 

 

FOREIGN LAWS: 

The concept of divorce that we are adopting today originated from a foreign country i.e., France, the first country to use the concept. There is a myth that whatever the issues are arising out of the marriage one should dissolve it. 

Australia has introduced a ‘no-fault divorce’ law. 

The Family Law Act 1975 provides that there is no need to show the wrongdoing or act of the spouse. 

In Argentina, the judicial order can be granted for desertion and violence but it does not provide for the dissolution of marriage.

In the Philippines and Vatican City, there are no provisions for divorce which means they do not have a procedure for divorce. 

 

CONCLUSION: 

India is a country where a large number of people follow different religions and can freely exercise their religious practice. India treats marriage as a sacred relationship where the two families come together and it is a social institution. While we are adopting Westernization where we welcome Western lifestyles, dresses, and cultures we also started to adopt diverse laws like divorce. Divorce is not that bad because it helps one to come out from a toxic marital relationship and it also helps to reduce mental, and health stress. In some circumstances or events, it can be the best option to do so. It is an emotional breakdown process for the family, child, and couple and can be a very difficult moment. Before granting divorce there is a month period given to the couple to rethink. The divorce rate in India is comparatively lower than the other foreign countries though the number of cases day by day. According to the report, Maldives is on the top followed by Kazakhstan and Russia where the rate of divorces is high and Sri- Lanka with the lowest divorce rate. 

Nowadays, divorce is another parameter to live an independent life with no restrictions, and with changes in society, the marriage concept has also developed as of now many youngsters see marriage as a burden, a lot of responsibility, and restrictions on freedom. 

 

REFERENCES: 

  •   Shayra Bano v. UOI, [(2017) 9 SSC 1]

  • Vishnu Dutt Sharma v. Manju Sharma 2009 (6) SCC 379

  •  Amardeep Singh v. Harveen Kaur 2017 (8) SCC 746

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