March 7, 2024

Divorce and religious difference

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, a densely populated country with 1.3 billion. And often referred 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 was a very rare phenomenon in the society. But with the advent of modernization and westernization the number of divorce get 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 in personal laws means it varies from religion to religion. It also affects the children and family structure. 

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

 

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

 

INTRODUCTION:- 

Divorce deprives from the Latin worn called ‘divortium’ 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 , 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 got illegalized. Then, this concept again came in 1837, where a bill got passed to establish a court that will 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 togetherness. It is always said like marriage is meant more than being together and divorce was not a part of a marriage ideally. The divorce statutory provisions introduced in 1931 i.e. The Divorce Act, 1931 in which both the spouse were given right to petition for divorce. Further this statutory provisions was taken forwarded by the Madras Act which ultimately led to the new era of divorce as it is considered as one of the boldest provision towards the concept of divorce and named  Hindu Marriage Act,1955. In India , divorce is not get appreciated by the society itself. It is still very complex and controversial issues. And the report of Life Change  Index Scale  it says that the divorce is the second most stressful thing a man goes through. 

EFFECTS ON CHILD:

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

 

LAWS:- 

There are several Personal Laws that govern or grant divorce. And these personal laws carries their separate laws that deals with the divorce matter. These laws are:- Hindu Marriage Act of 1955, 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:- 
  1. Adultery:- if the spouse is accused of extra marital sex while the other spouse is alive. 
  2. Conversion:- if the spouse adopt a new religion. 
  3. Desertion:- if the spouse desert alone for a specific period of time. 
  4. Cruelty:- not treating in a right way.

 

  • Hindu Marriage Act of 1955 : the act recognised the divorce in Hindu law. It only only applicable to Hindus but on Buddhist, Jain, Sikh (section 2 of the act)  Earlier the act set nine grounds for the divorce but nowadays it is eight. These eight grounds are:- 
  1. cruelty: if the spouse is mistreating or made the other spouse suffered badly. 
  2. Conversion: if the spouse has converted the religion into other religion.
  3. Intercourse: if the spouse get intercourse with the other person. 
  4. Abandon:  if the spouse has left or abandoned for the period of not less than two years. 
  5. No Notice: If there is no apprise about  the spouse for the period of seven years or more than seven years. 
  6. Renounce: if the spouse left all the materialistic things by entering into the religious order. 
  7. Transmissible disease: if the spouse is suffering from venereal disease. 
  8. Unsoundness: if the spouse is of unsound mind. 

 

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

  1. If the husband get married to another woman while the spouse is already alive. 
  2. If she founds that her spouse is guilty of physical harassment. 
  3.  If she get married before attaining the age of majority. 
  4. If the husband is unable to maintain  then, a woman can seek divorce. 

Hindu Personal Law provides both to seek divorce before the Court of Law. 

 

  •  Shariat Laws of 1937:  in Islam, divorce has been given an exceptional status to marriage and marriages are considered a form of contract. Earlier the women have not right to seek for divorce until the Dissolution of Muslim Marriage Act introduced, only the husbands were given right to  repudiate the marriage and why he does so was not an important or all he has to say is ‘talaaq’. They generally tried not to go to the courts. But now, the women and men both can seek divorce. Further, the dissolution of marriage can be divided into following categories in Muslim law:-
  1. Mutual Consent: to release the spouse mutually from the marital relationship. Here, the mutual consent is also known as Mubaraat. 
  2. (ii) Judicial Separation: this can seek by the wife when the spouse is mistreating her, cruelty, impotency. 
  3. Judicial Divorce: in this, a Muslim wife can seek divorce before the Court of Law and this is only possible after the introduction of Dissolution of Muslim Marriage Act. 
  4. Divorce by husband: husband can talaaq his wife if he is of sound mind and attained the age of puberty. It is very easy for husband to get divorce as he just has to pronounce talaaq and operates from the same same it pronounce. 

The concept of triple talaaq was challenged in case of Shayra Bano v. UOI where the Supreme Court held unconstitutional. Aftermath of the judgement, the Muslim Woman Act 2019 came into the picture and declared talaaq void. 

  1. Divorce by wife: the right given to the wife after the enactment of 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 husband take an oath to not have an intercourse and if he fails to do so the marriage will dissolve. Third form is, when the husband accuse his wife for adultery but fails to prove the same. Fourth one is, Zihar where husband compares his wife with the other. 

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

 

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

 

FOREIGN LAWS: 

The concept of divorce that we are adopting todays is originated from the 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 sho1975, n,uld dissolve it. 

Australia has introduced ‘no- fault divorce’ law.  The Family Law Act 1975 provides that there is no need to show the wrong doing or act of the spouse. 

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

While in Philippines and Vatican City , there is no provisions for the divorce that means they do not have a procedure for divorce. 

 

CONCLUSION: 

India is a country where large number of people follow different religions and can freely exercise their religious practice. While we are adopting westernization where we welcome western lifestyles, dresses, 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 but it also helps to reduce the mental , health stress. In some circumstances or events it can be the best option to do so. It is a emotional breakdown process for the family, child and the couple and can be very difficult moment. Before granting divorce there is six month period given to the couple to rethink. Divorce rate in India is comparatively low than the other foreign countries though increasing 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 are high and Sri- Lanka with the lowest divorce rate. 

 

REFERENCES: 

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