This article has been written by Ms. C.S Poorna a 2nd year student of Lloyd Law College, Greater Noida Uttar Pradesh.
Abstract :
This article discusses various aspects of marriage in society and the factors that lead to divorce for some couples. A short history of divorce is discussed along with the evolution of enactment of laws according to different religions of India. Certain important incidents are discussed that give importance to the improvement of divorce laws.There are certain common ground the society knows for divorce but there are some other grounds discussed which need to be known by society.At the end the information about the appeal period for a divorce is discussed. As all these topics give a better understanding to the people about marriage and divorce in society.
Introduction :
To get familiar with the disintegration of marriage, we ought to begin by learning a little bit about marriage and how it sometimes ends in divorce.
As per Anthony Giddens, “Marriage can be characterized as a socially recognized and endorsed sexual relationship between two grown-up people”.
In India, marriage has become a custom in which two adults and their families are involved in forming a relationship. The families are the ones who select mates rather than the individuals themselves.
In India, a variety of social practices and customs shape the concept of marriage. Hindu, Muslim, Christian, and Sikh communities have different traditions and customs related to marriage. Personal laws have been used to enforce traditional norms and customs in India. These ensure the smooth functioning of society.
In present circumstances, the marriage system has undergone tremendous changes. Child marriages used to occur with alarming frequency in the country. The Prohibition of Child Marriage Act, 2006 was brought into the picture to remedy the situation. Indeed, even the determination of a companion used to occur within the individuals by not including the families to pick the life partner. Circumstances change in any marriage, which continues to evolve, many of which have been broadly accepted by society. In the past, conflicts did not usually lead to separation of the couple. In present times, divorce has increasingly come to be accepted as a means to resolve any conflict arising in the marriage.
Brief History of Divorce :
Divorce is a legal action taken by the partners to discontinue their marital relationship. In India, there are many grounds for nullifying a marriage. If we go back to the history of divorce, it started during British rule in India. That time the Governor General in Council brought in the Indian Divorce Act of 1869. This Act was made for the Christians across India.
In India, the idea of separation was there in every religion. However, it was not a concept known to people at large in the society.
As the cases of divorce increased, laws were made to have better procedures for dealing with divorce cases. It began with The Divorce Act of 1869. As time elapsed the Divorce Act of 1869 was revised. Then the Parsi Marriage and Divorce Act of 1936 was enacted. Then the Dissolution of Muslim Marriage Act of 1939. Later on Hindu Marriage Act of 1955. The Special Marriage Act of 1956 was brought in for inter-faith marriage and divorces. All the laws dealt with divorce, ensuring women equal property rights, etc.
Even though a few laws have been passed, the divorce methodology in India is complex and time-consuming, and still, the society does not give certain rights to women.
When a woman initiates separation, society brings upon her the labels of ‘home breaker’, ‘selfish’, etc.
Society relentlessly tries to save marriage and family and safeguard the interests of men even at the expense of women’s rights.
Women’s rights were not given importance in other religions either. For example in Muslim personal law Talaq-ul-biddat, is one of the types of talaq which includes pronouncing the word ‘talaq’ multiple times and it results in instant dissolution of marriage. It has a negative effect on the woman as she has no place for herself to start a life separately. The male partner alone has been given the option to separate from their partner. But the woman does not have her rights.
Later on, certain practices like the triple talaq system were dissolved and women’s rights were given more importance. As in the prominent case of Shah Bano these improvements took place.
Grounds for divorce :
For different religions, different laws that have been enacted provide specific grounds on which divorce can be taken:
The grounds under Section 13(1) of The Hindu Marriage Act, 1955 to both partners seeking divorce:
- Adultery
- Cruelty
- Desertion not less than two years for a continuous period
- Insanity
- Venereal Disease
- Renunciation
- Presumption of death
The grounds under section 13(2) of the Hindu Marriage Act,1955 wife can look for separate are:
- Pre-act polygamous marriage
- Guilty of rape, sodomy, Bestiality
- Non-Resumption of Cohabitation after a decree of maintenance
- Repudiation of marriage
The grounds under the Special Marriage Act, of 1954 :
- Indulging in voluntary sexual intercourse with any person other than the spouse,
- Desertion for 2 years or more,
- Spouse being imprisoned for seven years or more under the Indian Penal Code,
- Cruelty,
- Any form of communicable or Venereal disease,
- If the spouse is found missing or not heard of being alive for a total period of 7 years or more,
- Judicial Separation.
Grounds under section 2 of The Dissolution of Muslim Marriage Act, 1939 on which wife alone can sue:
- The husband’s whereabouts have not been known for four years.;
- For the past two years, the spouse has ignored or failed to provide for her maintenance.;
- That the husband has been sentenced to prison for a term of seven years or more;
- That the husband has failed to discharge his marital obligations for three years without justifiable cause;
- That the husband was and continues to be impotent at the time of marriage;
- That the husband has been lunatic for two years or is suffering from leprosy or a virulent venereal illness;
- That she, having been given in marriage by her father or other guardian before the age of fifteen, can renounce the marriage before the age of eighteen, provided that the marriage has not been consummated;
- That the husband is cruel to her, that is:
- Habitually abuses her or makes her life unpleasant via cruelty,
- Associates with women of evil repute or lives an infamous life, or
- Attempts to coerce her into living an immoral life, or
- Dispenses with her property or prohibits her from exercising her legal rights to it, or
- Obstructs her from carrying out her religious profession or practice, or
- If one has more than one wife, he does not treat her equally by the Quran’s injunctions;
- On any other ground recognized as valid for dissolution of marriages under Muslim law.
Grounds under The Indian Divorce Act :
- Adultery
- Conversion to another religion
- Mentally retarded for a continuous period of 2 years
- Presumption of death
- Cruelty
- Desertion for 2 years
The appeal period for divorce petition :
So the dissolution of a marriage can be a complex and emotionally challenging process. Once a divorce petition has been filed, it involves a legal procedure. Understanding the appeal period in divorce proceedings is crucial.
Firstly there are two common types of divorce :
- Contested divorce: It is a type of divorce where either of the parties individually can seek divorce.
- Divorce by mutual consent: It is a type of divorce where both the parties together mutually agree to end their marital relationship. Section 13B of The Hindu Marriage Act 1955 states about divorce by mutual consent.
After understanding divorce, grounds, and types. It is important to know about the appeal period in divorce proceedings.
The appeal period refers to the duration during which either partner has the right to challenge the court’s decision regarding the divorce. This allows both the partners involved in the divorce proceedings to request a higher court to review and potentially overturn the original decision if they believe legal errors were made or if they have new evidence to present.
Section 28(4) of the Hindu Marriage Act,1955 states Every appeal under this section shall be preferred within a [period of ninety days] from the date of the decree or order.
There are certain common grounds that the partners use to file an appeal :
- There were mistakes in applying the law during the divorce procedures.
- The Lower Court might have handled its power better by ignoring proof.
- New evidence could have been found in the middle of the divorce procedures.
- Another mate could have hidden away facts in the middle of the divorce procedures.
- Infringement of rights could happen. If both of the gatherings have felt their rights have been infringed in the middle of the divorce procedure then can seek for appeal.
There are multiple steps involved in filing an appeal:
The parties should seek legal advice from a professional family law attorney. Who will guide in filing the appeal? Before appealing parties shall give a notice which shall include pleadings, written statements, and pieces of evidence presented during the hearing. After that, an Appellate Brief must be filed that includes both claims and legal provisions. At the end, there will be oral arguments. Further, on that basis, the decision will be prepared.
Conclusion:
Marriage is something which has come up from the old customs and traditions. However, at present it is required to be directed by the principles and guidelines of the nation. Today divorce is being acknowledged and rehashed in all societies. According to various religions, different personal laws have been made for the people to find support for their concerns with the least amount of conflicts. As the enactment of laws has happened the people of the general public are getting better informed about lawful methods for their separation.
References:
- This article was originally written by Vidhishree Tiwari published on legal service india website. The link for the same is herein.
- This article was originally written by Premchand Dommaraju published on JSTOR website. The link for the same is herein.
- This article was originally written by barelawindia published on Bare Law website. The link for the same is herein.
- Marriage and Divorce in India, Ray Sawmya
- The Hindu Marriage Act,1955
- This article was originally written by Shrishti Roongta published on ipleaders website. The link for the same is herein.
https://blog.ipleaders.in/types-of-divorce-in-india/#Types_of_divorce_