Marriage is one of the essential samskaras (sacraments) for every Hindu. It was considered to be a permanent and indissoluble union, i.e. once tied cannot be broken. The sacramental marriage made woman subordinate to man. It was only in exceptional cases that a woman was allowed to abandon her husband and take another.
Consent plays an important part in the formation of a marriage contract.
However, the modern concept of marriage as a contract is an outcome of the industrial revolution; of its lofty ideals of liberty and equality. Today it’s an established notion that in order to be effective it must be voluntarily entered into by both the parties. Consent plays an important part in the formation of a marriage contract.
Once it came to be established that marriage is a civil contract, it was a logical step to recognize that it was also a dissoluble union, but at the same time it could not be put to an end like an ordinary contract. Divorce is seen as a failure of a couple’s commitment to their marital and familial roles. Various theories of divorce have come into existence to put an end to marriage and the recognition of divorces has destroyed the sacramental characteristic of marriage to a great extent.
Unless allowed by custom, divorce was not recognized by general Hindu law as administered by the courts in British India. It was conceded in all jurisdictions that public policy, good morals, and the interests of society require that the marriage relation should be surrounded with every safeguard and its severance allowed only in the manner and for the cause specified by law. Even today divorce is not favored nor encouraged and is permitted only for grave reasons.
The Hindu Marriage Act, 1955, originally based divorce on a faulty theory, enshrined nine fault grounds in section 13(1) on which either the husband or wife could sue for divorce, and two fault grounds in section 13(2) on which wife alone could seek divorce. The nine grounds are –
• Adultery – voluntary, consensual sexual intercourse between a married person and a person of the opposite sex, other than the spouse, during the subsistence of the marriage. One single act of adultery is enough for divorce.
• Cruelty – it may be physical, mental, subtle, or brutal. By words, gestures, or by mere silence. All that is necessary is to show that the respondent treated the petitioner with cruelty. Focus is on the act or conduct complained of.
• Desertion – desertion of the petitioner by the other party to the marriage, without reasonable cause and without the consent or against the wish of such party (including willful neglect to the petitioner by the other party to the marriage). It is important to note that for divorce on this ground a statutory period of two years must have run out before a petition is presented.
• Insanity – insanity is also recognized as a ground for divorce. When a person suffers mental disorder or arrested or incomplete development of the mind, such that it becomes difficult for another to live with him or her, divorce can be sought.
• If the respondent is suffering from some virulent and incurable form of leprosy and
• Venereal disease in a communicable form, the petitioner can seek divorce on those grounds.
• Another ground for divorce is conversion to a non-Hindu religion.
• Renunciation – for divorce on this ground the respondent must have renounced the world and must have entered some religious order.
• Divorce can also be sought if the respondent has not been heard of as being alive for a period of 7 years or more by those persons who naturally would have heard if he or she were alive.
WIFE’S GROUND FOR DIVORCE
A Hindu wife has been provided with additional grounds of divorce under the Hindu Marriage Act. The first wife of the pre-Act marriage may file a petition for divorce on the grounds that her husband has remarried. Similarly, the second wife may file a petition on the grounds that her husband’s first wife was alive at the time of solemnization of the marriage. Also, commission of the offence of rape, sodomy, or bestiality (unnatural offences) gives her a right to divorce him. Further, if a wife has obtained an order of maintenance
An option of puberty or repudiation of marriage is also available to the wife.
and cohabitation between parties has not been resumed for over a year, then the wife may sue for divorce on that ground. An option of puberty or repudiation of marriage is also available to the wife. This option is open to only those girls who are married off before she has attained the age of 15 years and who repudiated the marriage after attaining 15 years of age but before 18 years.
Another theory of divorce is the Mutual Consent theory. According to this theory, parties are free to dissolve a marriage as they are to enter
Mutual consent to divorce is a sine qua non for passing of a decree for divorce
it. Mutual consent was introduced in 1976 as a legislative effort to ease the law of divorce, in accordance with the changed conception of marriage. All that is necessary for divorce on this ground is a joint petition by both the parties stating that they have been living separately for a year, not having been able to live together, and have mutually agreed to separate. Mutual consent to divorce is a sine qua non for passing of a decree for divorce and consent should continue till the divorce decree is granted.
Under the Hindu Marriage Act, another ground for divorce is available when the marriage has broken down irretrievably, beyond all possibilities of repair. In such a case it is better for both the parties that the marriage should be brought to an end without fixing any responsibility on either party. Such marriages should be dissolved even if one of the parties to marriage does not desire it.
RIGHT OF MAINTENANCE
The law makers have also tried to strengthen the position of women by providing for maintenance. The doctrine of maintenance has always been favored by Hindu jurisprudents. Modern Hindu law recognized the rule that a Hindu is under a legal obligation to maintain his wife. Maintenance is defined in a comprehensive manner and includes provisions for food, clothing, residence, etc. This right of maintenance is often exercised when the smooth running of life between the husband and wife becomes impossible and the holy union of two souls stands torn apart because of growing disharmony between the two. For example, when the domestic peace and harmony is broken by the inability of a spouse to adjust to the new environments created by the marital status.
There are various provisions regarding maintenance of a wife in law. Under section 125 of Cr.Pc. 1973, the husband is under a legal obligation to maintain his wife. Section 18 of the Hindu Adoption and Maintenance Act also entitles the wife to claim maintenance from her husband if he is guilty of desertion, cruelty, if he is suffering from some disease, has another wife living or a concubine, has ceased to be a Hindu, or is living separately. Furthermore, there is also a provision under the Hindu Marriage Act, 1955 where both husband and wife can claim maintenance. Under section 24 claims can be made by either spouse for maintenance, pendente lite (interim or temporary) of the claimant and expenses for proceedings, and under section 25 for permanent maintenance and alimony.
MUSLIM LAW
Contrary to Hindu Law, marriage among the Mohammedans is not a sacrament, but a civil contract, and though solemnized generally with recitations of certain verses from the Koran Mohammedan law does not prescribe any service peculiar to the occasion.
In the matter of divorce men have an upper hand in Muslim law. The Koran, IV, 35 states, “Men are maintainers of women, because Allah
Any Muslim of sound mind who has attained puberty may divorce his wife.
has made some of them to excel others and because they spend out of their property (on their maintenance and dower).” The position of women in matters of divorce is very weak. Any Muslim of sound mind who has attained puberty may divorce his wife whenever he desires, without assigning any cause. Even among Muslims there are various forms and kinds of divorce, or talak.
Express Talak – when clear and unequivocal words are uttered, the divorce is express. It has two forms. Talak-ul-Sunnat, which consists of either a single pronouncement of divorce or alternatively three pronouncements during successive tuhrs. The moment the third pronouncement is made the marriage stands dissolved irrevocably. The other form is Talak-ul-Biddat, which consist of a triple divorce, or three declarations at one time or one irrevocable declaration.
Implied or contingent divorce is another form. Sometimes the words used in the pronouncements are not clear. In such cases divorce will be implied if the intention to divorce is proved. When a husband pronounces divorce so as to take effect on the happening of a future event, the talak is known as contingent.
Delegated divorce is one form in which the husband delegates power to divorce to the wife or a third person, either absolutely or conditionally, and either for a particular period or permanently. The person to whom the power is delegated to may accordingly pronounce divorce. Even though it is a form of divorce of the husband by the wife in law, it operates as talak of the wife by the husband, as power is exercised on behalf of the husband who had delegated it .
Constructive divorce has two forms – Ila and Zihar. In case of the former, the husband’s conduct has the effect of repudiation, though he may not use the word talak, or any other expression, with the intention of dissolving the marriage. Thus if he swears that he will have nothing to with his wife and abstains from her society, the effect of such conduct would be a single irrevocable divorce. The latter is a form of inchoate, or incomplete, divorce. It is a form of divorce in which the wife gets the right of judicial divorce if her husband, expressing his dissatisfaction with her, compares her to any woman within the degrees of prohibited relationship. In such a cases she acquires the right to refuse cohabitation with her husband till he performs a penance. However, in India this form of divorce is very uncommon.
Khula is a form of divorce at the instance of the wife. It means to put off and consists in the laying down by the husband of his right and authority over his wife for an exchange. Thus a divorce by khula is a divorce with the consent and at the instance of the wife, in which she agrees to give consideration to the husband for her release from
Thus a divorce by khula is a divorce with the consent and at the instance of the wife.
marital ties. Once this offer is accepted by the husband it operates as a single irrevocable divorce.
Muslim law also permits divorce by Mutual Consent, or Mubara’at. Mubara’at denotes the act of freeing each other by mutual consent. The offer may come from either side and, once accepted, the dissolution is complete.
In order to strengthen the position of Muslim women in matters of divorce, in 1939 the dissolution of Muslim Marriage Act was passed, under which a Muslim wife was entitled to obtain a decree for dissolution of marriage on any of the following grounds:
• * if the whereabouts of the husband is not known for 4 years
• if he has neglected or failed to provide for her maintenance for a period of 2 years
• if he has been sentenced to imprisonment for 7 years
• fails to perform his marital obligations without reasonable cause for 3 years
• if he was impotent at the time of marriage and continues to be so
• or has been insane for a period of 2 years or is suffering from leprosy or a virulent venereal disease
• a Muslim woman can also repudiate her marriage under option of puberty, as in Hindu law
• if her husband treats her with cruelty, that is to say if he habitually assaults her or makes her life miserable, or if he associates with women of ill repute or leads an infamous life, if he attempts to force her to lead an immoral life or obstructs her in observance of her religious profession, or does not treat her properly in accordance with the injunctions of the Koran, etc.
• on any other valid grounds recognized under Muslim law, such as Lian, i.e. in case of false charge of adultery the wife is entitled to sue for dissolution of marriage.
Conversion to another religion by the husband would also operate as a complete and immediate dissolution of marriage.
These provisions have greatly strengthened the position of women in cases of divorce, thereby also allowing them to dissolve their marriage.
Whatever may be the provisions in law, whether Hindu or Muslim, of divorce, the trauma that both the parties have to go through is tremendous. It is a time of tremendous upheaval in families. Even
Divorce not only leads to the break up of a family, it has a great psychological impact on both the spouses.
though we are in the 21st century, marriage is still considered an indissoluble, eternal, holy union and the concept of divorce has not sunk in well. Divorce not only leads to the break up of a family, it has a great psychological impact on both the spouses. The hardships the wife has to go through are generally seen as far more than those of the husband. Besides financial hardships divorce carries with it a stigma which stays for a lifetime. It is also seen as anathema on religious grounds and leads to social ostracism. The shame, disgrace, and degradation that falls on a woman is incomparable. Further, if she is not educated enough, it might be difficult for her to stand on her own feet. Life ahead may become a burden and misery. All this leads to a feeling of failure and may result in her trying to end her life. Even if she is financially stable, supporting her children might become a hard task for her, and in trying to make ends meet she may not be able to devote enough time towards them.
Divorce has it’s most negative impact on children. It is generally seen that children suffer the most. It is a sign of failure of the parent’s responsibilities to their children’s psychological and emotional development. Unstable homes, single parenthood, and lack of love and affection all lead to feelings of insecurity among children. They have problems of trust and sometimes lose self-confidence. They often fear that one or both parents may abandon them. Frustration, depression, and loneliness inclines them resort to drugs and alcohol. They are unable to lead a normal life and either grow to be too aggressive or too reserved. In some way they feel guilty, even when they have nothing to do with the turmoil between their parents. They also have major adjustment problems which might make life difficult for them, as well as for others.
The only way to deal this delicate situation, and cope with all the pressures that accompany it, is for both the spouses to behave in a mature manner in order to prevent it from worsening.