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Divorce and Threat To Institution of Marriage in India: Socio-Legal Study
Divorce and Threat To Institution of Marriage in India: Socio-Legal Study
ASSIGNMENT
Submitted To:
Mr. Rajeev Mahashwaram Dy. Director
Institute of Judicial Training and Research (U.P.)
Submitted By:
Animesh Kumar
PREFACE
This assignment take cares of the topic DIVORCE. Its social-legal perspective is covered. Different aspects of human life have been included. The changing profile and new laws which are required have been given extra emphasis.
I am sure my effort would these inclusions and will keep on guiding me as faculty have done earlier.
I am extremely thankful to Mr. Rajeev Maheshwaram Sir for the extra time given to me for preparation of this assignment. I took too much time to complete the given task.
Animesh Kumar
Institute of Judicial Training & Research, U.P. | [Animesh Kumar, Amity Law School, Lucknow]
ACKNOWLEDGMENT
This assignment is intended to cover the socio-legal aspect of Divorce and threat to institution of marriage. Basic and pre-requisite information have been included. I acknowledge the inspiration and blessing of my Parents and my elder brother Ravindra Kumar Dwivedi. I am full of gratitude to my seniors Pratik Mishra, Abhash Sharma, Swastik Viswakarma and Mayank Dubey for the patience shown and encouragement given to complete this assignment. My heartful thanks are due to my friends Priyesh, Krisnath and Avinash for providing relevant resources. In the last but not the least, my sense of gratitude is due to AMITY LAW SCHOOL, LUCKNOW. Every effort has been made to avoid errors and mistakes; however their presence cannot be ruled out.
Animesh Kumar
Institute of Judicial Training & Research, U.P. | [Animesh Kumar, Amity Law School, Lucknow]
INDEX
1. Introduction1 a. No fault theory of Divorce..3
2. Marital Discord and Divorce in India: The Changing Profile.10 a. Higher Incidence of Divorce....11 b. Divorce by Mutual Consent.14 c. Adjustment and Understanding...17
Institute of Judicial Training & Research, U.P. | [Animesh Kumar, Amity Law School, Lucknow]
Introduction
While we talk about marriages and its significance in the life, its important that we also discuss the intricacies of the separation as its a right provided to all men and women on different grounds to the separate if the marriage is not considered happy. Though it is still look upon as a social evil, the law permits a couple to separate ways on mutual grounds. Also Indian women have their own rights to file for a divorce if not treated well. Even though we observe that women are ill treated in our country in rural as well as urban areas of India; a very small percentage of women who initiate for separation. But more and more social activists and social agencies are creating awareness about the laws and rights available to women as well as men. While this is one side of the tale, there are also cases where the law is twisted and turned and misused by both men and women. However, we must discuss the other side of the heavenly knot. Divorce is the dissolution of a valid marriage in law, in a way other than the death of one of the spouses, so that the parties are free to remarry either immediately or after a certain period of time. The Concept of divorce was introduced in India in the latter part of the 19th century among two classes of Christians. It was introduced for Hindus in 1955 in the form of the Hindu Marriage Act 1955. Before the commencement of the Hindu Marriage Act 1955, there were Acts in some of the States providing for divorce in certain circumstances, viz., the Bombay Hindu Divorce Act (22 of 1947), the Madras Hindu (Bigamy, Prevention and Divorce) Act (6 of 1949), and the Saurashtra Hindu Divorce Act (30 of 1952). These Acts were repealed by Section 30 of the Hindu Marriage Act 1955. Under the Hindu Marriage Act 1955, initially, adultery, cruelty, and desertion were not made grounds of divorce but of judicial separation. These grounds were based on the fault theory
Institute of Judicial Training & Research, U.P. | [Animesh Kumar, Amity Law School, Lucknow]
Section 13 of the Hindu Marriage Act 1955; Section 27 of the Special Marriage Act 1954;
Section 32 of the Parsi Marriage and Divorce Act 1936; Section 10 of the Divorce Act 1869 and Section 2 of the Dissolution of Muslim Marriage Act 1939.
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Institute of Judicial Training & Research, U.P. | [Animesh Kumar, Amity Law School, Lucknow]
No fault theory of Divorce The institution of marriage being distinct as regards its socio-economic and legal footings, it will be unjust if the law ignores the importance attached to it. But at the same time it is the choice of the parties to a valid marriage to understand the importance of the institution and to preserve its sanctity. With the changing requirements, attitude and aptitude, the society has drastically Changed and it is very difficult for the married couples to cope with change. While adjusting in a new atmosphere in the matrimonial home, spouses may commit, knowingly or unknowingly, with or without intention, whether economical dependent or independent, some kind of mistakes which lead to a communication gap between them and create havoc in the matrimonial home. Sometimes no party is willingly ready to hurt another one but circumstances beyond control create unhealthy atmosphere in the matrimonial home. It is difficult to say which party is at fault but matrimonial relationship loses its sweetness and its sanctity. At the same time it is more difficult to find out bitterness between the parties if they are well educated, working and economically independent because each individual has his own style of living. Where both the parties of a valid marriage are at fault of any kind of matrimonial offence, it is difficult to prove which one is an aggrieved party. According to the Doctrine of Recrimination, no remedy can be granted to the party who is at fault. It is imperative in law to have one party as innocent and another at fault to provide a matrimonial relief. A person who seeks matrimonial remedy must come to the Court with clean hands. For example, if in a petition for divorce on the ground of respondents adultery, it is found the petitioner is also guilty of adultery, then the petition will not be granted divorce even though there is no co-relationship between the two adulteries. English law
Institute of Judicial Training & Research, U.P. | [Animesh Kumar, Amity Law School, Lucknow]
In case of no fault theory of divorce, it is not necessary to prove which party is at fault. There may be many reasons based on which sweetness of matrimonial relationship is at risk. If the parties prove with reliable evidence on record that their marriage is beyond all possible repairs then law should understand the reality of the facts and should help the parties to the marriage which has broken down irretrievably. The Law Commission of India in its 71st Report on the Hindu Marriage Act 1955 - Irretrievable Breakdown of Marriage as a Ground of Divorce had suggested that the theoretical basis for introducing irretrievable breakdown as a ground of divorce is one with which, by now, lawyers and others have become familiar. Restricting the ground of divorce to a particular offence or matrimonial disability, it is urged, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a faade, when the emotional and other bounds which are the essence of a marriage have disappeared. The breakdown theory of divorce which is inherently attached with no fault theory of divorce represents the modern view of divorce. Under this theory, the law realises a situation and says to the unhappy couple: if you can satisfy the Court that your marriage has broken down, and that you desire to terminate a situation that has become intolerable, then your marriage shall be dissolved, whatever may be the cause. The marriage can be said to be broken when the objects of the marriage cannot
4 Institute of Judicial Training & Research, U.P. | [Animesh Kumar, Amity Law School, Lucknow]
The rights to apply for divorce on the ground that cohabitation has not been resumed for a space of two years or more after the passing of a decree for judicial separation, or on the ground that conjugal life has not been restored after the expiry of two years or more from the date of decree for restitution of conjugal rights should be available to both the husband and the wife, as in such cases it is clear that the marriage has proved a complete failure. There is, therefore, no justification for making the right available only to the party who has obtained the decree.4 In Madhukar v. Saral5, the Bombay High Court held that the enactment of Section 13 (1-A) in 1964 is a legislative recognition of the principle that in the interest of society, if there has been a breakdown of the marriage, there is no purpose in keeping the parties tied down to each other. In
Kusum, Irretrievable Breakdown of Marriage: A Ground for Divorce, 20 JILI (1978), p. 291. Vide Gazette of India, Extraordinary, Part II, S. 2, p. 86. AIR 1973 Bom. 55-57.
Institute of Judicial Training & Research, U.P. | [Animesh Kumar, Amity Law School, Lucknow]
AIR 1971 ILR 338 (Ker.). Aboobacker v. Mam 1997 KLT, 66 as quoted in Paras Diwan, Hindu Law, 2nd ed. 2002, p. 565. (1971) ILR 1 Del. 6. 71st Report of the Law Commission of India, para 15.
Institute of Judicial Training & Research, U.P. | [Animesh Kumar, Amity Law School, Lucknow]
[1963] 3 All ER 966: [1964] AC 644. [1963] 2 AII ER 994. [1969] 1 WLR 392. Paras Diwan, Modern Hindu Law, 17th ed. 2006, pp. 68-77.
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Institute of Judicial Training & Research, U.P. | [Animesh Kumar, Amity Law School, Lucknow]
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India Today, February 28, 2005 Hindustan Times, February 17, 2008 16 Hindustan Times, July 29, 2008
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Institute of Judicial Training & Research, U.P. | [Animesh Kumar, Amity Law School, Lucknow]
behaviours/tendencies
including
deficiencies/disorders
material/monetary gains through marriage (23 per cent), and incompatibility (21 per cent). A comparison of the data regarding marital discord between male and female respondents, as per the above study, brought out the following four main distinctive features: 1. While as many as 46 per cent of the male respondents attributed the main cause of their marital discord to incompatibility factors, far fewer, that is, 11 per cent female respondents attributed the main cause to such factors. 2. For as many as one-third of female respondents, the main cause of marital problem was material/monetary gains through marriage (mainly dowry). 3. Personality related behaviours/tendencies (including deficiencies/disorders) were reported more by female respondents than by male respondents (27 per cent Vs. 19 per cent). 4. More female than male respondents reported desertion as the main cause (13 per cent Vs. three per cent).
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Institute of Judicial Training & Research, U.P. | [Animesh Kumar, Amity Law School, Lucknow]
These biased laws and their unfair implementation is increasing the single parenting, distrust in the laws and legal system and marriage, dissatisfaction and insecurity among the law abiding citizens and a great hatred and vengeance for country. It is taking a heavy toll on the sensitive minds of young people who are now scared to marry with an Indian bride. Due to these faulty laws, many innocent, lawful and reputed citizens are being defamed as culprits and criminals in society. The whole drama also affects and involves other people of society who are colleagues, friends and relatives of the accused and get shocked to hear the dowry harassment case on accused which they can not believe as
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Torture, Incompatibility,
Depression,
Psychological
disorders,
Institute of Judicial Training & Research, U.P. | [Animesh Kumar, Amity Law School, Lucknow]
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Institute of Judicial Training & Research, U.P. | [Animesh Kumar, Amity Law School, Lucknow]
Conclusion
Till 1990s, India had amongst the lowest instances of separations in the world, as low as 1 %. The last five years however have seen a steep increase with surveys stating that the rate in Delhi has doubled in just 4 years. Other Metro cities like Mumbai have reported figures as high as 2 out of every 5 marriages ending in a legal breakdown. Even conservative and family oriented states such as Punjab have seen a 150% increase. Laws In India Legally, a petition can only be filed after one year has elapsed from the date of marriage unless there are exceptional circumstances. The Hindu Marriage Act 1955 lists 9 grounds for divorce. Namely
Adultery Cruelty Desertion Conversion of religion Unsoundness of mind / serious mental disorder Virulent and incurable form of leprosy of partner Venereal and communicable disease suffered by a partner Renunciation of the world Unknown whereabouts of partner for more at least 7 years
In addition to the above grounds, parties may also file for dissolution of marriage on the grounds of mutual consent, no resumption of cohabitation or no restitution of conjugal rights for a period of one year or upwards after a judicial decree of separation has already been passed.
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Institute of Judicial Training & Research, U.P. | [Animesh Kumar, Amity Law School, Lucknow]
BIBLIOGRAPHY
Books Referred: Indian Law of Marriage and Divorce, Kumud Desai, Lexis Nexis Family Law, Paras Diwan, Allahabad Law Agency Cases and Materials on Family Law, Kusum, Universal Law Publishing Co. Pvt. Family Law in India, G. C. Venkata Subbarao & Shri G. S. Prasad Rao, Asia Law House
Websites Referred: www.islam101.com www.legallight.in www.legalaid.c.la www.lawyersclubindia.com www.desicritics.org www.vakilno1.com www.desktoplawyer.co.uk Magazines, News Papers & Journals Referred: All India Reporter Supreme Court Cases NALSAR Law Review The Times of India The Hindu Legal Era
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Institute of Judicial Training & Research, U.P. | [Animesh Kumar, Amity Law School, Lucknow]