Marriage is a social legal contract between a spouse who expects to live with each other for the rest of their lifetime. A ceremony is arranged to establish that they have taken a decision to live together. It is believed that those ceremonies will increase their bond. In our life everything doesn’t happen as we planned. There are couples who would like to end their marriages. They may have physical or mental problems in which leads them to take this decision.
These decisions may be mutual or from one side alone. For such terminations, they approach court expecting a legal dissolution of their marriage. We call that as Divorce. There are two types of divorce mutual divorce and contested divorce. But court can’t grant divorce for every person who claims for it. There is a procedure for everything. We have these procedures because marriage is not only about two people.
Marriage involves two families and children of the spouse. We should consider the future of the children, family and spouse. As we all know every religion has their own rituals, events and believes for marriages, they also have their own methods and rules for divorce too. Our Indian courts strive hard to unite the spouse for regulating our society. But there may be circumstances where a person experiences harassment from their own partner.
In this situation, we can’t expect the victim to live with his/ her spouse for their life. Our courts are very keen while deciding to whom divorce should be given. There are few Acts that governs marriage and divorce in India. They are the Family Courts Act, 1984, Indian Divorce Act, 1869, Hindu Marriage Act, 1955, etc.
But what are the causes of divorce? What are the significant of divorce? What maintenance the partner will be receiving? Who will get the custody of the child? How effective is the counselling process prescribed by the court? As we are also somehow connected to this institution called marriage, every citizen of India should be aware of it. Our paper will throw lights on the basics of Indian Divorce laws that every person should know.
Divorce: Personal Law Perspective
Religion plays a major role in framing personal laws. Even though we are governed by our own personal laws, these laws get their source from their own religion. It is important to understand the concept of divorce in early days with respect to a religious phenomenon. In our country, 3 religion plays a major role namely, Hinduism, Christianity and Islam.
Hinduism: According to Hinduism, marriage is a not a contract, it is a samskara or rite of passage, Thus, there is no space for revoking marriage in Hindu culture. When a Hindu couple performs sapthapthi (seven steps around the fire) they are tied by a strong bond. From Hindu mythology it can be observed that there is no concept of divorce in early Hindu culture but there are some domestic misunderstandings which lead to judicial separation, Lord Sita was deserted by Lord Rama when she is pregnant, here we can observe that a Judicial separation was considered as the solution for marital problems in ancient Hindu culture.
Divorce, however, is not seen between God and his consort. In Vishnu temples, Lakshmi shrines are always separate from Vishnu’s. In Dwarka, Rukmini stands separate from Krishna. In Pandharpur, Satyabhama stands in a shrine separate from Krishna. These examples clearly say that there is no space for divorce in ancient Hindu tradition and judicial separation has its own history in Hindu culture is so far concerned.
Christianity: The concept of divorce can be traced in the Bible but it was interpreted in two different ways by the two different branches of Christianity. The Roman Catholic Church never accepts the concept of divorce, according to them, marriage is a strong bond which can’t be broken. A marriage can only end when one of the partners dies. A civil divorce may be granted to a Roman Catholic couple but they can’t remarry in Roman Catholic Church Since their previous marriage is still exist in the eyes of God. On the other hand, the Church of England permits divorce for a couple when the marriage is truly broken, they believe in the concept of divorce. According to them, marriage is a true bond and it can be cancelled when it can be repaired. In general, Christians believe in marriage and they avoid divorces, even when they face marital difficulties, they try to solve it as they promise before God to stay together.
Islam: Islam religion gave a different view on divorce, Divorce is granted when the marital bond between the couple is completely broken, which can’t be repaired. The Quran establishes two further means to avoid hasty divorces.
For a menstruating woman, Al-Baqarah 2:228 prescribes the waiting (Iddah) period before the divorce is finalized, as three-monthly periods. Similarly, for a non-menstruating woman, At-Talaq 65:4 prescribes the waiting period. From this it can be observed that the religion gives plenty of time to reconcile their marital bond, divorce is only granted when there is no chance for reconcile.
Some of the commonly known form of divorce in Islam religions are:
By Husband- Talaq-Ul-Sunnat, Talaq-Ul-Biddat, Ila and Zihar
By Wife- Talaq-i-Tafweez, Lian and Khula
My Mutual Agreement- Mubarat
On the other hand, in the early days, the Holly Quran provides many benefits to Muslim men, with some restrictions. Particularly with respect to the concept of divorce, Men have more powers than Women, Women’s consent is not attracted in many Divorce cases. But latter Gender Equality was up held by the Indian Judicial System in the famous case Shayara Bano, they struck down the concept of Triple Talaq which means Instant divorce.
Causes and Needs of Divorce
A statistic says that one out of a hundred marriages in India end in divorce. Though it is comparatively low than the rest of the countries, it’s quite a large number. Now let’s see the causes of these divorces.
According to Section 10 of Indian Divorce Act, 1869 and Section 13(1)(i) of The Hindu Marriage Act, 1955, husband or wife could petition for divorce if they found that their partner has involved in adultery. This is required because the person affected may no longer get any sexual satisfaction, love and affection from the partner who went with another person for the same needs. But there are no provisions regarding adultery in Muslim laws.
In the case of Revathi vs Union of India, the court held that neither the husband nor the wife could not prosecute the other for the purpose of adultery. Recently in the famous case of Joseph Shine vs Union of India, adultery was decriminalized as they thought that gender equality is important in adultery too.
Maintenance Rights of Divorcee
Maintenance is the concept which comes into the play when a couple approaches the court of justices for divorce. Since Maintenance has it is own link with divorce, Maintenance is also different in all the three different religions. Maintenance is a concept which allows one person to get financial support from his/ her spouse even, after divorce. Factors like the monthly income of husband and wife, the financial status of husband and wife are considered by the court before granting Maintenance. Generally, the court keeps an eye on the maintenances of the children also while granting the maintenances.
The husband and wife have to provide financial support to the minor child, even after divorce. It can’t be generalized that wife is the party who gets the maintenance always, there are some legal provisions which allows a man to get maintenance from his wife after divorce. Section 24 of Hindu marriage act says that maintenance pendente lite and expenses of proceedings can be granted in favour of both husband and wife and Section 25 of Hindu Marriage act allow the court to grant lifetime maintenance to both Husband and wife whose financial status is low. Delhi High court made an observation in a case that when the husband has no self-income to run his life can claim maintenance from his wife after divorce.
Bombay High court made different interpretation which gives more clarity section 24 of Hindu Marriage Act, it was held in a case that her husband is entitled to get maintenance under Section 24 of the Act. In a case, it was held that since the wife is in employment, the husband cannot make himself wholly depend on her income through a device under Section 24 of the Act. In the absence of any handicap or impediment to earning, to grant maintenance to such able-bodied person equipped with skill would promote idleness, which is opposed to the spirit of Section 24 of the Act.
Maintenance in case of women is different Women has a special right called Right to Streedhana Streedhana is the property gained by a woman at the time of marriage, it is different from dowry. Women have the full right over these properties even after the divorce.
Maintenance under Hindu Law:
A Hindu couple who got married under the Hindu Marriage Act can get maintenance through the Hindu Adoption and Maintenance Act. The Court is the final authority which can solve the disputes in case of deciding the maintenance amount.
Maintenance under Muslim Law:
According to the Muslim belief, Men has to maintain his wife and family. The term Maintenance under Muslim law is called NAFAQA and it involves lodging, food and sustenance. They are governed by Muslim women (Protection of Rights on Divorce) Act, 1986. A wife can claim a reasonable fair amount from her ex-husband within the prescribed IDDAT period, and Muslim men have to give the promised Dower or Meher.
If the wife is pregnant claim can be made for an amount for at least 2 years from the date of birth of a child. If they had a child in wife’s custody then, the wife can claim maintenance for the child till she remarries or until the child is dependent. The marriage contract may also stipulate the payment of special allowances by the husband, and in presence of these, it becomes the obligation of the husband to pay these to the wife. Such allowances are called kharch-e-pandan, guzara, mewa khore, etc.
Maintenance under Christian Law:
Indian Divorce Act comes into play with respect to claim made by Christian couples, according to the Act, the amount of maintenance can’t be more than one- fifth of husband’s income. Maintenance will not be provided if women remarry or found to be chaste.
Overall, it is seen and observed that rights of a woman in divorce in India has been duly protected under all the personal law. Besides the personal law, the rights of a woman in divorce in India is also protected by secular law which will protect a woman irrespective of her religious belief. An instance for this is Protection of Women from Domestic Violence Act, 2005 and Section 125 of Code of Criminal Procedure.
Custody Of Children After Divorce
The termination of the marriage contract through Divorce will never end the bond with their children. The saddest truth is that the real sufferer is the child who is going loose one of their parents.
The real problem of divorce starts when the court grants divorce for the couple who are parents too. The court has to decide the custody of the children of divorced parents. Further, there is need to understand the child property rights after divorce in India. Many ways are identified to solve this problem. In general, The Guardians and Wards Act, 1890 is the act which governs the legal procedure pertaining to the custody/guardianship of children in India. The common 3 types of guardianships are as follows:
The Joint Physical Custody concept was newly evolved concept in which both the parents will have a right to legal custody of the child but one of them will have the physical custody, where the child resides with one parent will be the primary care taker too.
Under this method court decides one of the parents be unfit to take care of the child thus, the court decides to grant the other parent to be the guardian for the child.
Both the biological parents are not going to be the guardian, in such cases court may appoint a person as a guardian of the child under Indian Guardians and Wards Act, 1890.
Every Law relating to marriage, divorce, maintenance, adoption, custody have their base from different religions similarly, these custody rules also have 3 different religious background
Under Hindu Law:
The mother is who usually gets the custody of a minor child if the child is below the age of five and if the child is more than the age of 9 the child’s consent is considered by the court. If the mother is proven to be neglect court may not provide the custody of the child to mother. And if the case is about an older boy’s fathers are given more priority and if it is about the elder girl then the mother is given more priority.
Under Muslim Law:
In Muslim law, Mother is given the Right of Hizanat (right to custody) of her child in all cases. This right will be given to father only when the mother is convicted for any misconduct.
Under Christian Law:
When it comes to a Christian family, both the parents will be given legal authority to be the guardian of the child but the problem arises when it comes to the residence of the child. Court has to decide only about the residence of the child after divorce.
With the divorce, all of your rights and responsibilities towards each other dissolve and you are no more responsible for the events happen in your partner’s life. This can be the devastating situation in your life, but remember that you’re not the only one and moreover, you will be back to your most desired days of freedom i.e., “Singlehood”. Here, the question arises that “how will you compromise to remarry after divorce?” According to the studies, it is found that it gets difficult to trust anyone, believe in the commitments and imagine a happy married life again, but the life must go-on. As far as child property rights after divorce is concerned, the same is governed by personal law of parents as well as the child. There is a separate Article on this subject of property distribution. However, what is important is the fact that child property rights after divorce is duly protected under the personal law as well as secular law of india.
What Does Law in India Says About Remarriage After Divorce?
There is a frequent question which clients ask is “Can you get Married right after a divorce”? Let’s talk about what does law says in India for the remarriage after getting the divorce?
The answer is yes, you can get married right after a divorce. However, in the case of decree of divorce, both the parties have to wait for at least a period of 90 days before tying knot with some other person or getting married again. Further, while answering the question “Can you get Married right after a divorce” one has to keep in mind if the divorce is by consent or by contest.
Section 15 of the Hindu Marriage Act, 1955
Decree of Divorce: 90-days period for the appeal is given to both the parties from the day of decree of divorce and if there is no appeal made during this period, then either of the parties become eligible to remarry after the given appeal period gets over.
Mutual Consent Divorce: But, in case of mutual consent divorce, there is no such limitation for remarrying after the divorce as it has a very genuine reason that the divorce has been already granted on the grounds of the agreement of both the parties, so in such case the question for appeal later doesn’t arise. Here, either of the divorced parties can remarry any day again after the divorce is granted.
Can I sue my spouse after divorce?
Another frequently asked question by client is “can I sue my spouse after divorce”? The answer is yes, you can, for any civil or criminal wrong. However, as far as matrimonial/property issues are concerned, the things are not that simple. In one such kind of case in 2018, the Supreme Court of India has upheld the order passed by the Rajasthan High Court that- “the absence of an ongoing domestic relationship doesn’t stop a court from granting relief to an aggrieved woman. After the Supreme Court’s verdict, a woman can file a complaint of domestic abuse under the domestic violence law against her husband even after their divorce or separation. This was recorded in a marital dispute matter.
The appeal said if the domestic violence law which came into the existence in October 2006, was allowed to be applied retrospectively then it could be misused. Most of the times, the marriage end is antagonistic and the law could be proven as the weapon in the wife’s hand to take the revenge.
At that time, court rejected the appeal and said, “If the aggrieved individual had been in a domestic relationship at any point of time even prior to coming into the force of the Act and was subjected to domestic abuse, the individual is entitled to invoke the remedial measures provided under the Act.”
Now the law has changed which says that, even after the dissolution of marriage, if an ex-husband attempts any kind of misbehave, abuse or violence with his ex-wife such as stalking her, trying to threaten or intimidate her or her family members then that woman can get the protection from the law. She can also knock the door of court if her ex-husband tries to wrongfully ditch her from the shared property or household which is jointly owned by them.
This Article is written by Mr. Pankaj Ailani, an Intern with our law firm, under the guidance and supervision of the Seniors of the Firm.
The content of this document do not necessarily reflect the views / position of RKS Associate, but remains a probable view. For any further queries or follow up please contact RKS Associate at admin@rksassociate.com