This article has been written by Mr. Dhirendra Singh, a 1st year law student of Modern Law College, Pune.

ABSTRACT

This article on Hindu divorce laws and protection of marital rights of senior citizens will help us understand about the divorce under Hindu Laws and the grounds for divorce. Article will help us know what are the marital rights and what are the changes they undergo in their life when individuals marry and the problems they face when they get separated. Circumstances may arise when parties have to fight for their marital rights and this article will throw light on legal remedies available to avail such rights. Article will focus on legislations and rules of parties but with an inclined angle of senior citizens.

KEYWORDS

Divorce, Marital rights, Maintenance, Alimony, Streedhan,

INTRODUCTION

Hindu ancient texts consider marriage as a sacrament and attached number of duties on both husband and wife. Ancient texts put an obligation on husband of a household to maintain his wife and family. These duties came along with some rights also which both husband and wife enjoyed for their happy household. These rights were later came to be knowns as marital rights and after modern legislations they took the form of legal claims which individuals are entitled to. Various laws like Hindu Marriage Act,1955 and Hindu Adoption and maintenance Act 1956, Hindu Succession Act 1956 etc. are the laws which provides for the marital rights and legal remedies to avail them.

DIVORCE LAWS UNDER HINDU MARRIAGE ACT

Ancient Hindu laws did not recognise the concept of divorce, though various commentaries accepted few exceptional cases in which a wife can leave her husband. As the liberal thoughts discerned into society, states recognised the rights of individuals and enacted modern legislation that is Hindu Marriage act 1955 which provides for divorce.

Modern legislations after giving due considerations to that “if marriages are based on moral and love then only those marriages shall continue in which both love and morality continues” enacted Hindu Marriage act 1955 and provided for several grounds for divorce out of which few are available to either party and few specifically reserved for women.

Section 13 of Hindu Marriage act 1995 mentions the grounds on which individuals can take divorce if the marriage between them is solemnized in accordance with Hindu Marriage Act 1955. The grounds for divorce are:

• Adultery.
• Cruelty,
• conversion to other religion 
• Desertion for not less than 2 years,
• Incurably, unsoundness of mind,
• Either of the partner has renounced the world
• Either of the partners suffering from communicable venereal disease
• Either of the partner is not heard of as being alive for a period of seven years or more by those who would naturally hear of it.

There are some specific grounds of divorce mentioned which can be exercised by the wife only, like Bigamy, Husband after solemnization has been guilty of rape, sodomy or bestiality etc.

Also, section 13B of HMA 1955 provides an option for divorce with mutual consent. It is a condition where both the partner realize and accept the fact that their marriage has been irrevocably broken down and want to dissolve their marriage.

MARITAL RIGHTS

Marital rights are the rights available to both the individuals bonding in marriage. Marital rights are a bundle of rights and generally these are available for weaker counterpart. In India, women have always been at the receiving end and always been denied of rights. State has enacted laws in order to protect the rights of marital rights of woman. Though there are some gender neutral rights available to both spouses. Like other citizens, senior citizens too enjoy same marital rights and have no exceptions to it. Few of the marital rights are:

1. Right to Matrimonial home: In India and in general it is the woman who leaves his paternal home and goes to husband house. Every woman is entitled to her matrimonial home which means she can live in her matrimonial house even if her husband dies and in case of divorce she can live there if alternate arrangement is not provided for. Also, in case of Maharaja Nadar v. Muthukani Ammal AIR 1986 MAD  it was held that wife is entitled to separate residence if the husband is guilty of cruelty. 
2. Right to Divorce: Spoused have the right to take divorce on grounds mentioned in section 13 of HMA and live their life if they feel that they can not live together as a married couple.
3. The Right to Stree Dhan: Section 27 HMA provides for disposal of property to both husband and wife on divorce but it doesn’t take into account the stree dhan of a woman which is provided in Section 14 of Hindu Succession Act,1956. A woman is sole owner and has exclusive rights over her Stree dhan.
4. Right To claim Childs custody: Hindu Adoption and Maintenance act slearly says that custody will be given to mother if the child is below five years of age. Both the parents have equal right of custody in case of child above five years and the court decides it on the basis of Section 26 Hindu Marriage Act considering the circumstances and the welfare of the child.
5. Right to Maintenance: Section 24 and section 25 of Hindu Marriage Act provides for maintenance pendente lite and permanent maintenance respectively for the spouse who is unable to maintain herself/himself. While section 18 of Hindu Adoption and Maintenance Act provides for maintenance to Hindu wife. Section 125 Crpc provides for maintenance to wife and takes a liberal view of the term Wife.
6. Right to property:  As per Hindu Succession Act 1956 wife has equal share in the property of Husband. A widow is classified as Class I heir.
7. Right to report Domestic violence: Wife have right to live a dignified life and can report to any domestic violence or abuse of her rights under domestic violence act, 2005.

 PROBLEMS FACED BY WOMEN AFTER MARRIAGE AND DIVORCE

Though it is general perception that marriage brings lots of love and happiness not only in the life of spouses but also to the families of married couple yet it is a well established fact it becomes a cause of misery for many. Marriage comes with various social obligation as informal and unwritten rules for the woman dissenting with the same can cause social critique and harassment by the society.

GOING TO MATRIMONIAL HOME 

Though it is right of a wife to live in matrimonial home but it is an uncodified and informal law that a wife should leave her paternal; home and go to her matrimonial home. The woman who chose to live in her paternal home has to face the wrath of the society and has to listen to taunts of society, After so many years of being modernisation it has yet a cause of concern.

RETAINING THE MAIDEN NAME

A woman being married under Hindu law has to change her maiden name after marriage and need to accept the surname of her husband. Though there is no such law or code specified that a wife has to drop her surname and take the husbands surname yet due to societal pressure she has to do it. In case she refuses to do so, society comes up with moral policing and lots of taunts. Though in urban areas practice of retaining her maiden name has got some room but it needs to be accepted by all the sections of society.

RESPONSIBILITY OF CHILDREN AND HOUSEHOLD

A woman in Indian Society and specially in Hindu Laws is considered as “Grihani” which means she has whole sole responsibility to manage household. A woman is considered to cook food for family even if she works. A woman is always tasked to look after children in family. If the child of a family does anything wrong her mother is always questioned first as if it is the duty of a woman to look after the children, husband and family.

NOTION OF CHASTITY

A well debated topic is chastity and character. A woman is always stared and looked upon to maintain his chastity and there are laws where her maintenance can be seized if he looses her chastity. Forum have been debating that whether chastity can be a parameter to be a good character. Yet in society it is well expected from a woman to be chaste and as said by Manu that “Sadhavi Bharya” is respected in society. Society bestows respect upon wife who are Pativrata means totally dedicated and loyal to her Husband. 

RIGHTS OF SENIOR CITIZENS AFTER DIVORCE

Senior Citizens are citizens who are above 60 years of age (55 years of age in case of females). They are looked upon by the society as torch bearer of the societal norms. They are respected because of their rich experience and their conformity to societal norms.  Senior citizens are entitled to all the rights which an ordinary citizen is apart from those few special provision are made for them. 

Special provision are made for senior citizens considering their incapacity to earn at old age. It is well established fact that senior citizens are more vulnerable groups and may face denial of their rights. Hindu Adoption and Maintenance act 1956 specially provides for maintenance of old aged parents. Section 20 of the said act puts duty on the child of Hindu parents to maintain.

Section 125 CrPC provides for maintenance of Father/Mother who are unable to maintain themselves. 

DIVORCE AND SENIOR CITIZENS

Divorce of senior citizens is a less known fact and very rarely heard but as a matter of exception divorce occurs in senior citizens of Hindus also and which results to entitlements of all the marital rights to weaker counter part whether, it is maintenance, property, Streedhan or share in property. The counterpart can claim every marital rights discussed above through lawful means by a decree from court. 

State considering senior citizen a vulnerable group put them in category entitled for legal aid (specially woman) and a man subject to some eligibility conditions. State will look after the rights of senior citizens are enforced and guaranteed to them on time. State also enacted Maintenance and welfare of parents senior citizen act 200 

Several governments provide for pensions to widows and divorced senior citizens and many facilities like old aged home for senior citizens. Judiciary has been very active in enforcing rights for senior citizen by several judicial pronouncements. Like Santosh Surendra patil V. Surendra Narasgopnda Patil, 2017 SCC, Sunny Paul & Anr Vs Stae NCT of Delhi & Ors.

CONCLUSION

Hindu divorce laws provides for sufficient legal safeguards in order to deter person from exercising unscrupulous decision of taking divorce in hurry. Also It ensures that life of the counterpart does not become miserable and it puts duty upon the spouses to maintain their counterpart and justify their responsibility which they undertook by marrying each other. Other laws also provides for various marital rights which spouses can resort to. Senior citizens are considered a vulnerable category and state put all the efforts to make their life comfortable. Legal safeguards are available for senior citizens too. Society needs to be more emphatic towards senior citizens and practical implementation of the policy regarding rights of senior citizens and their protection require more emphasis.

REFERNCES

Santosh Surendra patil V. Surendra Narasgopnda Patil, 2017 SCC 

Sunny Paul & Anr Vs Stae NCT of Delhi & Ors.

Hindu Marriage Act 1955.

Hindu Adoption and Maintenance Act 1956

Family law in India by T.V. Subba Rao

https://aishwaryasandeep.in/live-in-relationship-and-hindu-divorce-laws