Roots for Better, Easier, Faster Divorce Laws

Introduction:

Marriage is an extremely private affair. It’s a personal choice to either continue or end it. In our society, the concept of cohabiting together is so imbibed especially in Hindu society that it never fails to scrutinize and stigmatize divorce. Divorce is not abnormal or a violation of customs. With time divorce and laws about it have found its place in various acts enacted in the country. In consideration of the unpredictable nature of human beings, marriage institutions and divorce should roll together.

Failed marriages are never planned, it is just a way of not giving up to misogyny, patriarchy, torture, procreation problems, cheating, and affairs. Sometimes, to get divorced legally a couple has to knock the doors of the judiciary over a prolonged time. Few couples just to avoid the hassle stay separately but remain tied up in a marriage.

If someone feels that their marriage is unsuccessful they should just end it. Staying together won’t amount to any wonder remedy. With time people have started respecting their individual choice of being in a matrimonial bond and thus paving the way to divorces in the country.

Divorce- Transformation from Indissoluble to Dissoluble Union

Divorce paves an open door to reconciliation by legally enabling the dissolution of marital obligation and a permanent seizure to the conjugal rights and duties between the spouses. A permanent blockage to the journey of two souls eternally believed to be united. From eternal and holy union it could now be permanently dissolved in legal ways.

Traditions spoke of marriage as a Sacrament (Samskara- Religious Obligation). Breakdowns of marriage were often scrutinized as a “Sin”. The free-will of an individual was suffocated because the society didn’t agree to something they wanted themselves out from.

Traditional views were finally intervened by bringing changes in the Hindu Marriage Act, 1955 which normalized Judicial Separation and Divorce. Two individuals decide to exercise their conjugal rights freely was realized. Just like marriage, divorce is a willful decision made to avoid a failed relationship.

All the duties and rights between married couples come to rest with the execution of divorce except for Section 25 (Maintenance and Alimony) and Section 26 (Maintenance, Education and Custody of the child) under the Hindu Marriage Act. Divorce paves a free-pass to remarry and reconstitute one’s life. Freedom to choose one’s life over anything else is an absolute right.

Divorce- A Legal Right?

Yes, Divorce is a person’s absolute legal right and practiced rightfully. It should prevent the exploitation of one’s spouse for Maintenance or Alimony. Various personal laws talk about divorce and judicial separation. It is also dependent on various religious sanctions.

The Hindu Marriage Act covers laws for Hindus, the Dissolution of Muslim marriages govern the right of Muslim Women, and Indian Divorce Act governs the Christians. Special Marriage Act enacts the laws for marriages taking place between inter-caste and inter-religious individuals. The above personal laws do qualify for several grounds for separation. To perform a petition for divorce, any of the two roads are to be followed- 

• Existence of Mutual Consent- Couple mutually agrees to dissolve their marriage. Section 13 B of The Hindu Marriage Act, and The Special Marriage Act (Section 28), provide grounds for divorce. It promotes the couple to stay alienated for at least a year or more. The Christians under Section 10 A of The Divorce Act are expected to stay separated for at least 2 years. 
• No existence of Mutual Consent- Either of the spouses can go forward and file a divorce. It is their autonomy and a very personal affair. Special grounds are however awarded to the Women. The Muslim Women’s Right to Divorce is highlighted from the others. 

Just filing a petition for divorce doesn’t end the story. One shall know their rights and thrive to secure it correctly without violating the other spouse’s right and space. The Approach to legal help is suggestive and independent.

Difference between Divorce and Judicial Separation

• Judicial Separation finds its place under Section 10 of the Hindu Marriage Act. Divorce, a tangent process is defined under Section 13 of the Hindu Marriage Act.
• Judicial Separation is a one-way road whereas Divorce is a two-way road and more complicated.
• Judicial Separation requires the discharge of matrimonial rights and duties for a certain period of time. Divorce is the ultimate dissolve of a conjugal relationship.
• In Judicial Separation there may be a scope of reconciliation. Divorce is a complete contrary of Judicial Separation. One’s a decree is passed a marriage and all its ties get dissolved and there is no going back.
• Judicial Separation can be filed at any stage of a marriage but in case of Divorce, a decree can only be passed after completion of one year of marriage. Divorce is a more crucial and serious decision.
• For initializing Divorce, Judicial Separation can be one such ground. Judicial Separation can fuel Divorce.
• Judicial Separation to be granted requires few conditions to be proved, whereas for Divorce, marriage and its sacrament is considered first and then its grounds. Not a very easy catch in case of Divorce.
• Even after the commencement of Judicial Separation, parties can be legally married in the eyes of law. But once a decree of divorce is passed, the marriage ends there. And both the parties can go ahead to remarry and have completely separate partners and life.
• Judicial Separation is easy and done with one clear judgment whereas Divorce begs for two sets of judgments. One when the petition is filed and the other after 6 months from the first Judgment. “Cooling off period” is granted only in case of Divorce.
• Crucial Right to Property between couples exists during the course of Judicial Separation. The same Right to Property seizes as their relationship on the passing of a decree for Divorce. 

Thus, Judicial Separation can be said as the unofficial “Cooling off period” or a mutual understanding to not end their relationship legally by a couple. Divorce is an ultimatum and is a clear cut end of a relationship.

Grounds of Divorce

The Hindu Marriage Act, 1955- Section 13(1) highlights nine grounds-

1. Adultery

Any act of sexual intercourse by either of the spouses outside their marriage is termed as Adultery. It is criminalized under Section 497 of the Indian Penal Code. Adultery charges brought by any party should be proved.

The Supreme Court in Joseph Shine v. Union of India¹ drew a line against the joint charge under Section 497 of IPC and Section 198(2) of CrPC (prosecuted offenders against marriage) against Adultery. The Court struck down the same based on the connection being unconstitutional.

2. Cruelty

The Petitioner under the complaint of being projected to any form of cruelty can file for divorce under Section 13(1) (i) (a) of the Hindu Marriage Act, 1955. But, the charges are essentially required to be proved. 

In Russel v Russel², the term Cruelty was outlined as an act done to hurt someone both physically and mentally. Any sort of apprehension of danger would directly come under its ambit. 

In V Bhagat v D Bhagat³, the Hon’ble Supreme Court signalled mental cruelty as a significant and underrated ground for divorce.

The form of cruelty varies and should be determined by the facts and circumstances of the case. 

In Krishna Sarvadhikary v. Alok Ranjan Sarvadhikary⁴, it was held that any intention of the spouse involving hurting the other should be determined as a prime factor.

In the Landmark case of Dastane v Dastane⁵, the Court demarcated mental cruelty as a primary object for divorce. The subject of mental cruelty may not be static but any apprehension about the same should be given magnitude. 

As per Section 113 (A) of the Evidence Act, abetment of suicide by a married woman provoked by the cruelty of the husband shall be punished. “Cruelty “was given a meaning under the ambit of Section 498(A) of IPC.

It would be biased of us to conclude that such acts are only punched on women. Men are equally subjected to cruelty, but no penal provision provides for punishment against such acts.

3. Desertion

It means permanent abandonment or leaving behind of one spouse by the other without any prior notice or consent of the other. It is a form of a total refutation of obligations of marriage. The abandonment should be accompanied by animus deserendi. If a spouse forces or makes for a condition for the other spouse to leave, then he/she is the deserter. The period of desertion should be at least 2 years from the time of the Petition being filed. Temporary intention to stay away cannot amount to desertion. Willful neglect in the form of not fulfilling a basic marital obligation, denial of sexual intercourse, and maintenance would directly lead to desertion.

In Jyotish Chandra v Meera⁶, the husband created a hostile environment and forced the wife to leave the house. The indifferent behaviour of the husband towards his wife created a vacuum in their conjugal life. The court concluded that the husband was responsible for desertion even though it was the wife who had left the in-laws house.

In Ashok Kumar Arora v Prem Arora⁷, the Court signalled that when either of the spouses decides to stop co-living voluntarily, the other spouse will be fundamentally liable to file for divorce.

In Bipinchandra v Prabhavati⁸, the Supreme Court held that any respondent against whom the charge of desertion was brought was willing to return and the petitioner presented for resistance to the same, the respondent shall not be held liable for such desertion.

A Divorce Petition cannot be maintained if both the spouses decide to come together to relive their conjugal relationship.

4. Conversion

Two conditions were laid down under Section 13(1)(ii) for conversion being a factor for divorce. The Respondent should cease to be a Hindu by converting himself/herself into other religions. But it doesn’t automatically dissolute a marriage, to obtain a decree of divorce the Petitioner has to file A Petition first.

5. Insanity

Section 13(1) (iii) – Either of the spouses not in the mental capacity to deal with all the conjugal responsibilities and cannot be considered competent enough to continue such conjugal tie, is said to be mentally unstable. Thus, a Petition can be filed stating valuable facts proving the above points.

In Ajitrai Shivprasad Mehta v. Bai Vaasumati⁹, the reason for breaking one’s conjugal ties due to someone’s unsoundness of mind must be proved and should be satisfactory enough for the court to decide.

6. Leprosy

Also known as “Hansen’s ailment”, under Section 13 (1) (iv) any spouse suffering from leprosy, the other spouse can go ahead and file for divorce. The disease is deadly and infectious.

In Annapurna Devi v Nabakishor Singh¹⁰, the Petitioner had to prove that the Respondent had been suffering from the disease for 3 years or immediate to the filing of the petition.

 7. Venereal Disease

Under Section 13 (1) (v), a Respondent suffering from such sexually transmitted disease (AIDS) shall pave way for the Court to granting divorce to the Petitioner.  But if the infection was contracted from the Petitioner, divorce will not be granted due to the bar of Section 23 (1) (a) of the same Act. It prevents from giving an advantage to any person for his/ her wrong.

In Birendra Kumar v Hemlata Biswas¹¹, it was the husband who compelled the wife to have sexual intercourse who was free from the venereal disease.

8. Renunciation of the World

Under Section 13 (1) (vi), when a person renounces the world and enter some religious order and thus willfully concludes all his family as well as conjugal rights, the other spouse has the very right to file for Divorce.

9. Presumption of Death Section 13 (1) (vii)

The foundation of such a clause for divorce was based on Section 108 of the Indian Evidence Act, 1872. When a person is not heard for seven years or more, it can be believed for him to be no more alive. The onus of proof lies on the petitioner to affirm the same. On proving the above fact the petitioner can remarry and if the lost spouse makes a comeback he won’t be able to affect the previous marriage.

Dissolution of Marriage under Muslim Law

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From all the above grounds of divorce, we can determine that securing conjugal rights is important and it should be availed under valid and sufficient grounds projected under various Acts.

Factors that might fasten the Divorce Process

To initiate a Divorce either of the spouses needs to initiate a legal notice asking for a divorce. Divorce procedures in India are complicated and long. There are various forms of divorce petitions. When the decision of divorce is made with mutual consent, the Court will consider the divorce petition. The couple is required to stay apart for at least a year or two. Sometimes divorce procedures can be inexpensive and matters like child’s custody, maintenance, alimony, and property rights should be mutually agreed upon. India not being very friendly and welcoming to the concept of divorce often fail to recognize it as a right of an individual to stay in a marriage or resign from it for the virtue of the Right to live with dignity. The divorce rates are very low in India compared to other European Countries. Almost every year 7500 cases are filed in Mumbai and around7000 cases in Delhi. The pending rate of divorce cases is 55000 (approx).

Divorce Notice– First step is to send a divorce notice to their respective spouse and letting them know the valid reason behind the decision of separation and brings forth clarity between the two. The communication should be clear and should mention the legal steps to be taken further. It is regardless of the first step to break the matrimonial bond.

Three aspects to be noticed to deliver fast recovery (Mutual Consent)

1. Alimony and Maintenance. Both can be of any limit or figure.
2. Guardianship of the Child. A great deal of time can be saved if the parties mutually agree to take on the custody whether joint or exclusive.
3. Both spouses should decide on property rights. It includes both movable as well as immovable properties. Even the Bank and financial accounts should be determined by both the parties consensually.

Documents required for Divorce procedure to fasten

• Address proof of both Husband and Wife;
• Their Marriage Certificate;
• Four passport size photos of their marriage ceremony;
• Proof of them living separately for more than a year;
• Proof of failed attempts of reconciliation and bridging the Conjugal relation;
• Income Tax Statements;
• Statement of income;
• Details of the profession of both the spouses;
• Details of family background;
• Papers of properties owned by the petitioner;

“Cooling Off” Period of Six months

To speed up the procedure of divorce, the Supreme Court ordered for the minimum “cooling-offer period of six months” to grant a decree of divorce and so that there is no forceful provision to cohabitate in a hostile environment.

Under the mutual agreement in Section 13-B, the couples had to stay separate for at least a year. This provision was released by the court by waving a cooling period of 6 months between the first and the last motion of seeking a divorce. In these 6 months, various settlements could be concluded.

If a couple willfully or individually files for divorce they should be given a chance to reconsider the decision but that should not suffocate their right to stay away from a toxic relationship.

The period mentioned in Section 13 B (2) is not obligatory but optional and it was highlighted by the bench comprising of Justice A.K Goel and Justice U.U Lalit. The court had the discretion to waive off the 6-month requirement on their finding that the couple doesn’t agree to any form of reconciliation.

These above methods are the only methods that have come into the radar to fasten the divorce proceedings. But with the endless procedures and decisions to make, the process often delays. At times it has even come into notice that the lawyers drag a particular case for their benefit ignoring the distress of their clients. When the decision of separation is taken mutually, there should be no going back and the court should buckle up to grant relief within a week.

Relevant Cases

• Amardeep Singh v. Harveen Kaur¹²

The period of 6 months was waived off to consider Divorce by Mutual Consent. It was not considered mandatory. The provision of cooling time of 6-18 months under Section 13 B (2) of the Hindu Marriage Act was proposed to be not of much importance. The Court shall rely on the facts of the case. In the above case, the couples have been staying apart from 8 years since 2008. After 2017 the parties wanted to settle down for the divorce. It was right on the part of the Court to lay off the cooling period as the couples had already been living apart for 8 years. The 6 months provision under Section 13 B (2) of the Hindu Marriage was thus laid off.

• Mrs. Christine Lazarus Menezes v. Mr. Lazarus Peter Menezes¹³

A false case registered under Section 498 (A) of IPC would amount to Cruelty and can be recorded as a valid ground for Divorce.

The wife had filed a false FIR in Mumbai under Section 498 (A) and 406 of IPC to bring back her husband to the house. Due to the FIR, the husband was sent to prison for 7 days. The harassment of the husband amounted due to the false FIR amounted for cruelty done by the wife.

Conclusion

Marriage Laws (Amendment) Bill was introduced by the UPA government to propose amendments to the Hindu Marriage Act 1955 as well as the Special Marriage Act, 1954 to make irreversible grounds for divorce. A bill was passed by the Rajya Sabha in 2013 but wasn’t taken up by the Lok Sabha. The NDA governments focused on live-in relationships and not on failed and abusive marriages.

It is on the BJP government to now introduce certain changes to fast track the process. Just like the saying “Marriages are made in heaven” it directly contravenes one’s choice of marriage and affects their personal choice as to continue or discharge such bonds.

Our Country is an amalgamation of culture, religion, history, and much more. Marriage is a sacrament that has been defined in various pages of the religious study. Society has changed with time and has adapted to the various dynamics. The early ideology of a girl bearing a marriage just for the sake of the society is now rubbished by the advent of various laws. Now, no one has to bear the burden of a failed relationship just because the family and society approves of it. But at the same time, it is expected that there shall not be any misuse of such powers ordained by the law and there should be mutual respect and love among two people forming a conjugal tie.

References:

1.  WP (Cr.) 194/2017.
2. (1897) AC 395.
3. AIR 1994 SC 710.
4. AIR 1985 Cal. 431.
5. AIR 1975 SC 1534.
6.  AIR 1970 CAL 266
7. AIR 1987 DEL 255.
8. AIR 1957 SC 176
9. AIR 1969 Guj 48
10. AIR 1965 Ori 72.
11. AIR 1921CAL. 459: ILR 48 CAL 283.
12. Civil Appeal NO. 11158 OF 2017 (Arising out of Special Leave Petition (Civil)No. 20184 of 2017)
13. CRIMINAL REVISION APPLICATION NO.368 OF 2008.
14. https://www.thebetterindia.com/117981/mutual-consent-divorce-gets-easier-faster/
15. https://www.legalserviceindia.com/legal/article-3629-roots-for-better-easier-faster-divorce-laws.html
16. https://blog.ipleaders.in/divorce-under-hindu-marriage-act 1955/amp/#Alternative_Reliefs_In_Divorce_Proceedings
17. https://www.shethepeople.tv/law-and-her/legal-rights-in-marriage-divorce-law-in-india/
18. LexisNexis, The Hindu Marriage Act, 1955- Bare Act with Short Notes.
19. Universal Law Publishing, The Special Marriage Act, 1954- Bare Act.
20. Indian Divorce ACT, 1869.
21. CrPC- The Code of Criminal Procedure, 1974.
22. IPC- Indian Penal Code, 1860.
23. Section 113 (A) of the Evidence Act.
24. Section 498(A) of IPC.