Divorce in India : Recent Trends and Developments

Divorce refers to the dissolution of marriage or the process of termination of a marital union. Various researches and studies have revealed that India has the lowest divorce rate in the world. Luxembourg and United States have the highest divorce rate at 87% and 50% respectively. Meanwhile, only 1% of total Indian marriages end up in divorce, that is, in every 1,000 marriages, only 13 ends up in divorce.[1] Indians have a devoted connection to their cultures and social ethics and it is often believed that Indian culture and traditions are the main reasons behind the low divorce rates. But this is not necessarily true, the surprisingly low divorce rate of the country depicts various negative factors. Dangerously low divorce rate implies the lack of literacy, financial instability, lack of proper legal apparatus and legal awareness, underdevelopment, gender inequality, etc. this paints a bad picture of the country in the global scenario.

Divorce and divorce rate in India is influenced by various factors like :

  • Regional differences : divorce rate vary according to different regions of the country. It has been observed that north-east Indian region experience more number of divorces than the rest of the country. Studies reveal that Mizoram experience the highest divorce rate, that is, 4.08%. Meanwhile, Nagaland, the state with the second highest rate is at 0.88%. The reasons behind this variation is that women of the north-eat enjoy a higher societal status due to matrilineal system. States like Rajasthan, Uttar Pradesh and Bihar have a deeply rooted sense of patriarchy and hence have a much lower divorce rate.
  • Urban and rural difference : a difference between divorce related situations exist between urban and rural areas. It has been observed that urban areas experience more number of divorces than rural areas. Low literacy and lack of legal awareness in Indian villages can be some prominent reasons behind this difference. The institution of Panchayats in rural areas also help in keeping the number of divorce and separation low by mediating disputes between couples.
  • Differences based on religion : A study published on live mint revealed that for every 1,000 married Hindus, 2 are divorced, and for every 1,000 married Muslims, 3.7 are divorced. This implies that population and marital status adjusted, Muslims are more likely to be divorced than Hindus.[2]
  • Gender difference : a huge gender divide exists in matters related to divorce. The gender gap leads to more women being divorced and separated because men tend to remarry.

LEGAL HISTORY OF DIVORCE IN INDIA

Before independence, the concept of divorce was not given much thought because marriage was considered as a sacred concept and a bond of indissoluble nature but soon the parliament felt the need to enact laws related to marriage and separation and hence, 8 years after the country’s independence, the Hindu Marriage Act, 1955 was enacted. However, the first legislation relating to the dissolution of marriage was passed in the 1920’s by the state of Kolhapur. Closely similar acts were passed by Madras and Saurashtra Government in 1949 and 1952.

India is a diverse nations in terms of religion and hence, divorce in India is associated with faith or religion. Divorce laws for Jains, Sikhs, Hindus and Buddhists are given under the Hindu Marriage Act, 1955. The divorce laws of Muslims are mentioned under Dissolution of Muslim Marriage Act,1939. Divorce laws governing Parsi marriage are under Parsi Marriage and Divorce Act,1936. The Christians are governed by the Indian Divorce Act,1869. All inter-community marriages are according to the provisions under the Special Marriages Act,1954.

Grounds of divorce as per section 13(1) of the Hindu Marriage Act, 1955[3]

  • Adultery
  • Cruelty
  • Desertion
  • Conversion
  • Insanity
  • Leprosy
  • Venereal Disease
  • Renunciation
  • Presumption of Death
  • Mutual Consent

Additional grounds on which a wife can obtain the divorce mentioned under section 13(2) :

  • Bigamy
  • Rape, sodomy or bestiality
  • Failure of maintenance by the husband
  • Option of puberty

Muslim women can seek divorce on  grounds given under section 2 of the Dissolution of Muslim Marriages Act,1939.[4] The grounds are as follows:

  • When the wife does not know about the whereabouts of her husband for a minimum period of 4 years.
  • When the husband has failed to provide for maintenance for 2 consecutive years. 
  • When the husband has been imprisoned for a minimum period of 7 years.
  • When marital obligation have not been performed by the husband for 3 years.
  • Impotency
  • In case of any kind of venereal disease or when the husband has been termed insane for a period of 2 years.
  • If a minor girl was given by the father to another guardian before attaining the age of majority.
  • Cruelty by husband.

AMENDMENTS

  • Hindu Marriage (Amendment) Act, 1976

Some provisions given in the Hindu Marriage (Amendment) Act, 1976 are :

  1. Hindus can obtain divorce on the ground of desertion and cruelty as all the grounds on which ‘judicial separation’ was available were made available. ‘willful neglect’ was added to the meaning of desertion.
  2. With this amendment a single act of adultery was sufficient to get a decree of divorce. 
  3. A new clause through which a wife could successfully obtain an order of maintenance under any law, was introduced.
  4. This amendment introduced the provision of ‘divorce by mutual consent’
  5. Recurring attacks of insanity, mental disorders, unfitness for marriage or ability to procreate children, etc., were introduced as some grounds for nullity of marriage.
  6. The scope of “insanity” was widened through this amendment.
  7. It was stated that just after the enactment of this amendment, every matrimonial proceeding was to be conducted and recorded on camera.
  8. The scope of Section 19 was widened.
  9. New Sections related to speedy trial were added to Section 21 of the Act.
  10. Section 15, which stated that , “A divorcee had to wait for one year before remarrying.” Was removed.
  • Marriage Laws Amendment Bill, 2010 [5]

The Marriage Laws Amendment was introduced to propose changes to the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. It was first introduced in the parliament in 2010. The Rajya Sabha passed it on 26 August 2013. The aim of the bill was to make divorce acts more ‘women-friendly’.

Some changes that were introduced in the Bill are:

  1. Irretrievable breakdown was introduced as a new ground of divorce through this bill.
  2. A provision of providing sufficient compensation to the wife and children from the husband’s immovable property was introduced through this bill.
  3. Section 13(f) was added. It empowered the courts to provide compensation amount to the wife and the children from the husband’s inherited and inheritable property once the marriage comes to an end (legally).
  • Personal Laws (Amendment) Act, 2019 [6]

The Personal Laws (Amendment) Act of 2019 was introduced in Lok Sabha on August 10, 2018 and was passed on February 13, 2019. Its aim was to amend 5 acts, that is,

  1. Divorce Act, 1869
  2. Dissolution of Muslim Marriages Act, 1939
  3. Special Marriage Act, 1954
  4. Hindu Marriage Act, 1955
  5. Hindu Adoptions and Maintenance Act, 1956

It introduced the following changes:

  1. Divorce Act, 1869 : Chapter II : – Section 10(1)(iv) regarding leprosy as a ground of divorce was omitted.
  2. Dissolution of Muslim Act, 1939 : Chapter III : – the words ‘leprosy are’ was removed from  Section 2(iv).
  3. Special Marriage Act, 1954 : Chapter IV : – Section 27(1)(g) which states ‘leprosy’ as a ground of divorce was removed.
  4. Hindu Marriage Act, 1955 : Chapter V : – ‘leprosy’ as a ground of divorce under Section 13(1)(iv) was omitted.
  5. Hindu Adoptions and Maintenance Act, 1956 : Chapter V : – Section 18(2)(c) which states that, “a wife is entitled to get maintenance from her husband for her lifetime in case her husband is suffering from a virulent form of leprosy”  was omitted.

LANDMARK CASES

  • Amardeep Singh v. Harveen Kaur [7]

FACTS : In mentioned case, the couple was living separately since 2008. In 2017, a settlement was reached and the husband and wife applied for divorce by mutual consent. The court was requested to waive off the waiting period of 6 months as given under Section 13B(2) of the Hindu Marriage Act, 1955. To back up the request, they stated that, they have been Living separately for the last 8 years and that there was no possibility of their re-union.

This landmark case is considered a major development to the concept of divorce by mutual consent under Hindu Law. Through this judgment, The Supreme Court held that the period of cooling off period or waiting period of 6-18 months mentioned under Section 13B(2) of the Hindu Marriage Act, 1955  is not a compulsory period. It is more of a directory provision and it was also held that, it can be waived off under certain circumstances.

It was further stated by the court, that it can exercise its discretion depending on the facts and circumstances of each case and remove or waive off the waiting  period in such cases where There are chances of alternative rehabilitation but no possibility of resuming cohabitation.

  • Suman Singh v. Sanjay Singh

This is a landmark case which talks about how a few separate and scattered incidents from the past cannot be considered cruelty and a definite ground for divorce. In this case, the husband had pleaded 9 incidents which, according to him, came under the definition of  “cruelty” within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act. With this, entitling him to claim dissolution of marriage against his wife. The initial instances in the case are related to the wife’s behaviour with the husband and his family members.

The wife appealed to the supreme court for the restitution of conjugal rights. The Court allowed the wife’s appeal and the following observations were made :

Almost all the incidents given by the husband in his petition were isolated and scattered and did not entitle him to seek a decree for dissolution of marriage. It was stated by the respondent that the incidents related to cruelty took place immediately after the marriage. The incidents of cruelty were termed solitary incidents relating to the behaviour of the wife.

Lastly, the court stated that, Petition seeking divorce on the grounds of some isolated and scattered  incidents which are said to have occurred 8-10 years prior to filing of the date of petition cannot serve as a  subsisting cause of action to seek divorce after 10 years after occurrence of such incidents.

  • Sureshta Devi v. Om. Prakash [8]

This case defined the exact meaning of ‘living separately’. A three judge bench of the Supreme Court in this judgement held that, ‘living separately’ means not living like a married couple. ‘living separately’ has to relation to the current residential state of the couple. Even if the husband and wife are living together but they do not perform their matrimonial duties as a married couple should, then, it is considered that they are living separately.

  • Shikha Bhatia v. Gaurav Bhatia & Ors.

In this case, the Court observed that once the husband or wife gives their consent to abide by the undertaking mentioned in the First motion for dissolution of marriage under Section 13B (1) of the The Hindu Marriage Act, 1955, then, he or she cannot abjure from such undertaking on the basis of some agreement between the parties. If the spouse decides to abjure that undertaking, then, such act would amount to a breach of the undertaking, thus, further attracting contempt proceedings.

  • Smruti Pahariya v. Sanjay Pahariya

It is important that the court must to be satisfied about the existence of mutual consent between the husband and wife (parties) on matters which require necessary disclosure of such consent. In this case, the Apex Court held that while deciding on matters related to divorce by mutual consent, the courts must satisfy itself that the consent given by the parties is voluntary. In such cases, if one party to the matter is absent in the said proceeding (after a period of six months in divorce by mutual consent) then, it is presumed that the consent on behalf of that party was not voluntary because both the parties were signatories to the first motion under the Section 13 B of the Act. 

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

In the above mentioned case, the wife challenged  Family Court’s judgment in which the Family Court had granted the husband’s plea for dissolution of marriage and rejected the prayer to provide her maintenance. The Bombay High Court dismissed the wife’s appeal and refused to hinder with the Family Court’s judgment regarding the Petition for divorce of the husband on the ground of ‘cruelty’.

It was observed during the investigation that the wife had filed an FIR  against her husband under sections 498-A and 406 of  IPC with the Kherwadi Police Station, Mumbai. The wife had clearly admitted in the case that she had filed the Criminal Complaint with the aim to bring back her husband to their matrimonial home. Keeping the whole situation in the view, the Court stated that if the complaint lodged by the appellant against her husband was false and was filed only to bring back her husband and as a consequence of her act, he was arrested and was in jail for 7 days, it would make a clear and evident case of cruelty by the wife against her husband.

The court declared that lodging false case under Section 498A of IPC is Cruelty and a definite ground for divorce.

  • Narendra V. K. Meena[9]

In this case, an appeal was filed by the husband in related to the case where the wife made various and persistent efforts to restrict her husband from meeting or communicating with his family. The trial court held that this act of restraint her husband from meeting his family would constitute to an act of cruelty and the husband is entitled to decree of divorce. 

CONCLUSION

Marriage was considered to be a sacred bond and before the Hindu Marriage Act, it was believed with a sense of rigidity that divorce was never an option. The concept of divorce in India has evolved substantially over time and a lot of introductions and amendments have been made to the existing laws. As the needs of society have changed with time, the divorce laws have changed too, these changes have been made just to cater to the needs of the dynamic society. Divorce laws have been made more women-friendly and various new additions have been made to the proceedings like the use of video conferencing during the proceedings. It has also been observed that the divorce rate in India is rising as people are becoming more and more aware of their existing rights. Divorce is now seen not as a taboo that exists in society but as a way to break free from bad marriages and lead a more peaceful life. Through the means of a divorce, couples who are stuck in bad marriages and are facing various difficulties get a chance to renew their respective lives. A lot is still left to be accomplished in terms of laws related to divorce and along with various legal hurdles, social, moral, and cultural hurdles are to be dealt with too.

Author: Jhanvi Sharma


[1] Why India has a low divorce rate?, available at: https://www.organiser.org/Encyc/2020/2/2/Why-India-has-a-low-divorce-rate.html (last visited on April 16, 2021).

[2][2] Hindus and Muslims: the true picture of divorce, available at:https://www.livemint.com/Opinion/ydCWT2mGxmg4d9NXrMaxEI/Hindus-and-Muslims-The-true-picture-of-divorce.html (last visited on April 17, 2021).

[3] The Hindu Marriage Act, 1955, available at:https://www.indiacode.nic.in/handle/123456789/1560?locale=en (last visited on April 18, 2021).

[4][4] The Dissolution of Muslim Marriages Act, 1939, available at:https://www.indiacode.nic.in/handle/123456789/2404?locale=en (last visited on April 18, 2021).

[5] The Marriage Laws (Amendment) Bill, 2010, available at : https://prsindia.org/billtrack/the-marriage-laws-amendment-bill-2010 (last visited on April 16, 2021).

[6] Personal Laws (Amendment) Act, 2019–Notified, available at : https://www.scconline.com/blog/post/2019/02/25/personal-laws-amendment-act-2019-notified/ (last visited on April 17, 2021).

[7]AIR 2017 SC 4417

[8] AIR 1992 SC 1904

[9] (2016) 9 SCC 455

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