Divorce, Distress and Social Stigma
Women were given a reverent position in ancient India and had a special role to play in the preceding yugas of Ramayana and Mahabharata. But unfortunately, in recent times people have started taking the fairer sex for granted. Especially, if we talk about Indian women who, in the 21st century, have beaten their male counterparts in every field, walking shoulder to shoulder with them and yet living under trepidation when it comes to their social security.
Since ancient Vedic days marriage has been given prime importance in the life of an individual. It was believed ‘marriages are made in heaven’, ironically even when the situation is not kind of win-win for both the parties involved in the commitment. It has not been too long since the Indian Law authorities came out with a proper act defining various nitty-gritties of official separation from the marriage.
Before Hindu Marriage Act of 1955 there was no official provision for divorce in India as it took quite some time for the Indians to eliminate the social stigma tagged with the concept of divorce.
Marriage, Divorce and Women
Hindu Marriage Act of 1955 considers the progressive Indian standards for the separation of the partners in marriage. The Act takes into account complaints of both the partners before coming to a decision. The Act, specifically, has opened up avenues for Indian women, who have been the silent victims of domestic violence for decades.
However, it is the duty of the court to propose reconciliation and mutual settlement between the couples to obviate any hasty divorce decisions. Hence, obtaining a decree for judicial separation has become mandatory before obtaining divorce as stated in the Act.
Divorce Guide for Hindu Women
Exclusive Divorce grounds for a Hindu Wife – The Act provides exclusive grounds for a Hindu wife on the basis of which she can file a divorce. This includes –
- Husband charged for rape, sodomy or bestiality;
- Discontinuation of cohabitation
Filing a Divorce – On the face of permanent incompatibility, a wife can initiate divorce proceedings by putting her complaint/s for obtaining a decree for judicial separation.
Major Hindu Divorce Laws are –
Section 10: Judicial Separation
Section 13: Grounds for obtaining a divorce
Section 13-B: Divorce by mutual consent.
Remarriage and forcible intercourse – Either party can remarry after obtaining the divorce only if –
- the case has not been further appealed in the High Court or,
- the time allotted for an appeal has been expired or
- the appeal put forward by either party has been dismissed.
Simultaneously, any remarriage occurred before or in-between the divorce procedures would be taken as null and void. The person would also be convicted of bigamy.
Further, amid the judicial orders and proceedings, any intercourse with wife without her consent is a punishable offence under section 376A of the Indian Penal Code leading to 2 years imprisonment.
Legal procedure for filing a complaint – The complaint should be made in compliance with Section 19 of the Hindu Marriage Act 1955 which is as follows –
Court to which petition shall be presented. Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction–
(i) the marriage was solemnized, or
(ii) the respondent, at the time of the presentation of the petition, resides, or
(iii) the parties to the marriage last resided together, or
(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.
Where to go for help? – In case of conjugal incompatibility or domestic violence, a woman may seek help from a friend, relative or an NGO. For every troubled marriage, the first step should be reconciliation and if that fails either of the partners is free to initiate legal proceedings. Free legal aid is also available in this case.
In the tribal and remote area communities, separation is also granted by the village or caste Panchayat. However, if the Panchayat fails to resolve the matter amicably the case should be filed in the court.
Hindu Marriage Act 1955 in detail
Section 10- Judicial Separation
Sub Section (1)
Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party-
(a) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; or
(c) has, for a period of not less than one year immediately preceding the presentation of the petition, been suffering from a virulent form of leprosy; or
(d) has, immediately before the presentation of the petition, been suffering from venereal disease in a communicable form, the disease not having been contracted from the petitioner; or
(e) has been continuously of unsound mind for a period of not less than two years immediately preceding the presentation of the petition; or
(f) has, after the solemnization of the marriage, had sexual intercourse with any person other than his or her spouse.
Explanation.- In this section, the expression “desertion”, with its grammatical variations and cognate expressions, means the 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, and includes the willful neglect of the petitioner by the other party to the marriage.
Sub Section (2)
Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so
Section 11- Void marriage
Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.
Section 13- Divorce
Sub Section (1)
Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(i) is living in adultery; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition; or
(iv) has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or
(v) had, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; or
(viii) has not resumed cohabitation for a space of two years or upwards after the passing of a decree for judicial separation against that party; or
(ix) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree.
Sub Section (2)
1. A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground;
i. in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner;
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
ii. that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
iii. that in a suit under section 18 of the Hindu Adoption sand Maintenance Act, 1956(78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure , 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;
iv. that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining the age of eighteen years.
Explanation: – This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) act, 1976 (68 of 1976).
Section 13-B- Divorce by mutual consent.
Sub Section 1
Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
Sub Section 2
On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
How to file the Case ?
Section 20- Contents and verification of petitions.
(1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded and shall also state that there is no collusion between the petitioner and the other party to the marriage.
(2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.
Section 21- Application of Act 5 of 1908.
Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908 (5 of 1908).
Section 22- Proceedings may be in camera and may not be printed or published.
(1) a proceeding under this Act shall be conducted in camera if either party so desires or if the court so thinks fit to do, and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except with the previous permission of the court.
(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be punishable with fine which may extend to one thousand rupees
Section 23- Decree in proceedings.
(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that-
(a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b) where the ground of the petition is the ground specified in clause (f) of sub-section (1) of section 10, or in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and
(c) the petition is not presented or prosecuted in collusion with the respondent, and
(d) there has not been any unnecessary or improper delay in instituting the proceeding, and
(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.
(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavor to bring about a reconciliation between the parties
Section 24- Maintenance pendente lite and expenses of proceedings.
Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable.
Section 25- Permanent alimony and maintenance.
(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall, while the applicant remains unmarried, pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant and the conduct of the parties, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favor an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it shall rescind the order.
Section 26- Custody of children.
In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.