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DISSOLUTION OF MARRIAGE

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This article is written by Mahesh Chauhan of 3rd Semester of Lloyd Law College, an intern under Legal Vidhiya

ABSTRACT

The termination of marriage in India is a complicated process governed by different personal laws reflecting the country’s diverse religious and cultural landscape. Every major religious group in India, such as Hindus, Muslims, Christians, and Parsis, has its own unique rules and procedures for finalizing a marriage. Additionally, the Special Marriage Act of 1954 provides a secular alternative for couples of diverse religions and individuals seeking a streamlined procedure. The Hindu Marriage Act of 1955 outlines grounds for divorce such as cruelty, adultery, abandonment, and mental illness, and mandates a formal legal process through the family court system. Although Muslim divorce procedures such as talaq and khula are not as strictly governed, they are influenced by Islamic law. The Christian Marriage Act of 1872 and the Parsi Marriage and Divorce Act of 1865 outline specific grounds for divorce and required protocols. The Special Marriage Act of 1954 allows divorce for non-religious causes, providing a uniform legal framework for couples with different religious beliefs or opting for a civil wedding. This overview discusses the termination of marriages in India, highlighting the diverse legal strategies employed by various factions and the evolving family legislations in the country.

KEYWORDS

Divorce, Annulment, Dissolution of marriage, Marital Separation, Family law, Alimony, Child Custody, Hindu Marriage Act (1955), Dissolution of Muslim Marriage Act (1939)

INTRODUCTION

Divorce, also referred to as the termination of marriage, is a complicated problem that involves important legal, social, and emotional aspects.[1] In India, known for its varied cultural and religious beliefs, divorce procedures and outcomes differ widely among various communities and legal systems. Throughout history, Indian culture has placed significant importance on the sacredness of marriage, seeing it as a long-term pledge. Nevertheless, changing social expectations, higher levels of education, and shifting economic factors have all played a part in the increasing number of divorces. Currently, there are various methods to terminate a marriage. The most popular and effective method for accomplishing this is by getting a divorce, although another choice is terminating a marriage through an annulment.

Dissolution of Marriage is the legal procedure used to end a marriage. It starts with one party seeking to terminate the marriage and both parties agreeing to file for divorce. Divorce laws in India vary based on religious affiliation: Christians follow the Indian Divorce Act, 1869, Hindus, Buddhists, Sikhs, and Jains follow the Hindu Marriage Act, 1955, Muslims follow the Dissolution of Muslim Marriages Act, 1939, Parsis follow the Parsi Marriage and Divorce Act, 1936, and inter-community marriages follow the Special Marriage Act, 1956.

HINDU MARRIAGE ACT, 1955

The Hindu Marriage Act, 1955 is a significant piece of legislation in India that governs the institution of marriage among Hindus, including Buddhists, Jains, and Sikhs. Enacted on May 18, 1955, this law was a landmark reform aimed at providing a legal framework for marriage and divorce within these communities.

IMPORTANT PROVISIONS FOR DIVORCE UNDER HINDU MARRIAGE ACT, 1955 [2]

GENERAL GROUNDS FOR DIVORCE

The first General ground for Divorce is Adultery which means having an extramarital affair or sexual relationship with someone outside of marriage. The second ground for Divorce is Cruelty this includes unjustifiable behavior that harms physically, mentally, or emotionally. The Third ground is Desertion means abandonment of the partner by the other one, without consent of any reasonable cause. The fourth ground is Conversion to another Religion as stated above, conversion from Hindu to any other religion that is not part of the Hindu religion. The fifth ground is Mental Disorder any mental illness that makes it practically, and emotionally impossible for two people to stay together. The sixth ground is Communicable Disease, for example STDs or any other type of disease that can be fatal for the other partner. The seventh ground is Renunciation of the World this happens when either partner has gone out of the marriage leaving all material things to pursue any religion or any kind of faith, and abandoned their family in all forms. The eight ground is Presumption of Death means when a partner goes away, gets lost, or is not found or has any record in any form and is not found for 7 years or more, he/she is presumed dead and the petitioner can seek divorce Under the Hindu Marriage Act, 1955. And the last but not least Unsound Mind or Suffering from Continuous Insanity means any mental disorder that has an indefinite period of cure, or doesn’t have a treatment; in this case, the petitioner has all valid and medical reasons for not staying with the partner and can file for a divorce.[3]

DISSOLUTION OF MARRIAGE UNDER MUSLIM MARRIAGE ACT, 1939

The Dissolution of Muslim Marriages Act, 1939 is a key piece of legislation in India that addresses the process and conditions for the dissolution of marriage among Muslims. Enacted on September 1, 1939, this Act was a significant reform aimed at providing legal remedies for women seeking divorce in the Muslim community.

The Purpose of the Act was introduced to provide Muslim women with legal recourse for divorce, addressing the limitations of existing personal law practices. It specifically applies to marriages solemnized under Muslim law.

This Act outlines several grounds on which a Muslim woman can seek divorce. These include: Failure to maintain i.e. if the husband fails to provide maintenance; Desertion i.e. if the husband has abandoned the wife for a continuous period of two years; Impotence i.e. if the husband is impotent at the time of marriage or becomes impotent; Cruelty i.e. if the husband treats the wife with cruelty; Incompatibility i.e. if the marriage has become intolerable due to the husband’s conduct or behavior; Non-payment of Mahr means If the husband fails to pay the dower (mahr), which is a mandatory marital gift.[4]

If we talk about Judicial Proceedings, The Act allows a Muslim woman to file for dissolution of marriage in a civil court. The court has the authority to grant a divorce based on the grounds specified in the Act.

  1. Rights and Protections: The Act provides for maintenance and support for the wife and her children after divorce. It ensures that the wife is not left destitute and provides for her financial and emotional well-being.
  2. Reforms and Impact: The Act was a significant step towards empowering Muslim women and providing them with legal protections in matters of marriage and divorce. Prior to its enactment, divorce procedures for Muslim women were largely governed by personal law, which often placed women at a disadvantage.

Impact and Significance

The Dissolution of Muslim Marriages Act, 1939, played a crucial role in reforming Muslim family law in India by offering women a formal legal mechanism to seek divorce. It marked an important shift towards enhancing gender equality and providing more balanced legal remedies in family law. The Act remains an essential component of personal law for Muslims in India, addressing issues of marital dissolution with a focus on fairness and justice for women.

SPECIAL MARRIAGE ACT, 1954

The Special Marriage Act, 1954, is an Indian law designed to facilitate the marriage of individuals who wish to marry outside their own religion, caste, or community. Here’s a brief overview, Interfaith and Inter-caste Marriages, it allows couples to marry irrespective of their religious beliefs or caste, providing a legal framework for such unions. If we talk about key Provisions, The Eligibility comprises age and marital status. Age: The groom must be at least 21 years old, and the bride at least 18 years old. Marital Status: Both parties must be unmarried or legally separated/divorced/widowed.[5]

Marriage Registration Notice, Couples must give a 30-day notice to the Marriage Registrar, who will then publish the notice for public information. During this period, objections to the marriage can be raised based on legal grounds. After the notice period and if no valid objections are raised, the couple can proceed with the marriage ceremony before the Marriage Registrar. The marriage must be conducted in the presence of at least three witnesses and it Provides grounds for divorce such as adultery, desertion, and cruelty. The marriage is recognized under the Act and provides the same legal rights and obligations as marriages conducted under personal laws.

ADVANTAGES

  1. Uniformity: Offers a secular framework for marriage that applies to all citizens, regardless of religion.
  2. Flexibility: Allows individuals to marry according to their personal choice rather than religious or community-specific norms.

SIGNIFICANCE

The Act promotes social integration and helps to address issues of caste and religious discrimination by providing a legal route for individuals who wish to marry outside their traditional communities or religious groups.

This Act is an important step towards ensuring equal rights and promoting social harmony by allowing people to choose their partners freely.

GENERAL PROCEDURE FOR DIVORCE

The divorce process begins with when one of the spouses filing a petition for divorce in the family court in appropriate manner and citing the grounds for divorce. Courts often suggest the parties to undergo mediation or counseling to resolve the problems and explore reconciliation before granting divorce. Both parties present their case, and evidence is examined by the court. If the court is satisfied with the grounds and the proceedings, it will grant a decree of divorce. This decree may be contested or appealed in higher courts. The Issue such as maintenance for the spouse and custody of children are also addressed during divorce proceedings.[6]

RECENT DEVELOPMENTS

  1. Uniform Civil Code (UCC): There have been discussions and proposals regarding the introduction of a Uniform Civil Code to standardize family laws, including divorce, across different religions. However, this remains a subject of debate and has not yet been implemented.
  2. Digital and Streamlined Procedures: Some courts are increasingly adopting digital and streamlined procedures to make the divorce process more efficient.

Understanding the specifics of divorce laws in India requires a detailed look at the personal laws applicable to the individuals involved. Legal advice from a qualified family law attorney can provide clarity and guidance based on individual circumstances.

IMPORTANT CASE LAWS

Marriage took place between Manmohan Attavar and Neelam Manmohan Attavar in 1981. But due to some reasons, the couple’s marriage began to deteriorate with time, which resulted into a heated argument. Manmohan Attavar in 1993 filed a petition for divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, on the grounds of mental cruelty and the trial court granted the divorce, but after the court decision Neelam Attavar appealed to the High Court, which overturned trial court’s decision. Manmohan Attavar then again appealed but this time in the Supreme Court challenging the High Court’s decision.

The Supreme Court overturned the High Court’s decision and affirmed the trial court’s decree granting divorce.

In this case, petition contesting the practice of a Hindu husband converting himself to Islam to marry another women, which was not permissible under Hindu law but was authorized under Islamic law. The Supreme Court emphasized the important need for a standard approach to personal legislation to overcome such conflicts and promote equality. The Court said that the application of personal laws to get around legislation intended to uphold social justice and defend women’s rights is not appropriate.

This particular case provided evidence in favor of the argument for a unified legal framework by highlighting the inconsistencies and challenges resulting from different personal laws governing marriage and divorce.

This case involved a dispute over the grounds of cruelty and desertion and for seeking the divorce for the same.In this case, the appellant, Smt. Savitri Pandey, sought divorce on the grounds of cruelty and desertion.The Supreme Court also emphasized that cruelty can be recognize based on the conduct of the spouse and its impact on the complainant’s mental and emotional health.The Court further clarified that desertion involves abandonment of marital duties and not just physical separation.

This case also provided a very detailed interpretation of “cruelty” and “desertion” as a ground for divorce, establishing that both must be substantiated with evidence showing significant impact on the aggrieved party.

CONCLUSION

India’s diverse society is mirrored in the range of legal processes available for terminating a marriage. Different personal laws offer legal choices for ending marriages that cater to the various needs and practices of the population. Legal protections ensure individuals have the right to seek divorce based on specific reasons, providing legal security and options for those in unhappy marriages. Despite having legal safeguards in place, challenges such as lengthy court processes, societal stigma, and the need for procedural improvements to enhance accessibility and fairness persist. More changes are necessary to address these problems and ensure that divorces are handled with sensitivity, fairness, and effectiveness.

Enhancing court procedures and offering more support to affected individuals can result in a fairer and more effective judicial system. India’s legal system for ending marriages is well-defined and influenced by various personal laws catering to the diverse needs of its people. Despite allowing for the legal dissolution of marriages, ongoing improvements are needed within the existing framework to address present challenges and ensure equitable outcomes for everyone involved.

REFERENCES

  1. India Code,https://www.indiacode.nic.in/bitstream/123456789/2280/1/A1869-04.pdf, (last Visited Sep 05, 2024)
  2. India Fillings, Divorce Rules in India: Everything You Need to Know, https://www.indiafilings.com/learn/indian-divorce-act/ (last visited Sep 05, 2024)
  3. LexisNexis India, Important Things to Know about Divorce under Hindu Marriage Act, 1955, https://www.lexisnexis.in/blogs/divorce-under-hindu-marriage-act/, (last visited Sep 06, 2024)
  4. Cornell Law School, dissolution of marriage, https://www.law.cornell.edu/wex/dissolution_of_marriage, (last visited Sep 06, 2024)
  5. Indian kanoon, Dissolution of Muslim Marriage Act 1939, https://indiankanoon.org/doc/134686354/, (last visited Sep 06, 2024)
  6. Toni Matthews-El, Adam Ramirez, J.D., Forbes, What Is A Dissolution of Marriage? https://www.forbes.com/advisor/legal/divorce/dissolution-of-marriage/, (last visited Sep 07, 2024)
  7. India Code, The Special Marriage Act, 1954, https://www.indiacode.nic.in/bitstream/123456789/15480/1/special_marriage_act.pdf,  (last visited Sep 07, 2024)
  8. Indian kanoon, The Special Marriage Act, 1954, https://indiankanoon.org/doc/4234/, (last visited Sep 07, 2024)

[1] https://www.law.cornell.edu/wex/dissolution_of_marriage

[2] https://www.lexisnexis.in/blogs/divorce-under-hindu-marriage-act/#:~:text=Section%2010%20of%20The%20Hindu,ii)%20(different%20parts).

[3] https://www.lexisnexis.in/blogs/divorce-under-hindu-marriage-act/

[4] https://indiankanoon.org/doc/134686354

[5] https://indiankanoon.org/doc/4234/

[6] https://www.indiafilings.com/learn/indian-divorce-act/

[7] https://indiankanoon.org/doc/30306259/

[8] https://blog.ipleaders.in/bigamy-in-india-sarla-mudgal-case/

[9] https://indiankanoon.org/doc/325522/

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