NEED FOR AMENDMENTS IN DIVORCE LAW VIS-À-VIS - HINDU MARRIAGE ACT, 1955

Author: Muskaan Sawhney,

Vivekananda Institute of Professional Studies, Delhi



Abstract

Matrimony is a sacred union between two individuals. The Vedas describe marriage as a holy bond which is based upon ‘friendship’ and a liaison between two souls. The institution of marriage developed its formal origin about 4350 years ago.[1] The Hindu community signifies marriage as not only the coming together of two mortals but that of two families. Marriage is believed to be an alliance which holds its foundation upto seven lifetimes. Conjugal relations have been used by rulers to strengthen their kingdoms wherein the king would have multiple wives and the premarital background of the wives and their respective families were used to build allies. But is this pious union a testament to a happy and fulfilling life?


Introduction

Divorce has been derived from Latin word “divortium” which means to separate or to turn to different ways.[2] The concept of divorce has had a tempestuous alliance with the Indian landscape. According to the laws of Manu, there is no such thing as a divorce. Manu Samhita says that the woman who leaves her husband should be shunned by the society. But Narada and Parashara highlighted the five instances under which a wife could divorce her husband and remarry again such as if the husband if missing, impotent, becomes an ascetic, debased from his caste or has passed away. A woman, who leaves her husband, in Vedic culture, has no other place to turn.[3] Men on the other hand, were permitted to leave their wife under certain specific conditions such as lack of male offspring after a decade of marriage etc. With time the forbidden nature of divorce was reduced although it was still considered a taboo and a stigma revolved around it in the society. The Hindu Marriage Act, 1955 (HMA) brought forward a revolutionized change in the form of judicial separation and the dissolution of marriage, the minimum age of marriage, prohibition of polygamy, requisites of a valid marriage.


Decrypting the Disgrace of Divorce in Society

The end of the matrimonial alliance is not viewed as the beginning of a staircase of happiness and hope; on the contrary it is regarded as the inception of a bleak future. Divorce is deemed to be a negative connotation. In India, 1.36 million people are divorced which amounts for 0.24% of the married population.[4] On the face of it, the marriages in India seem to be very successful however, there is a deep stigma attached to the remedy of divorce which makes it inaccessible to the spouses, in particular women. More people are separated than they are legally divorced. This is owing to the freedom from the tag of “divorcee” which has an undertone of defeatism. Marriage is a contract with no end irrespective of the circumstances. The concept of endurance is introduced in marriage and women in particular, are informed to ‘endure’ and suffer in silence come what may. Their original home stops being their home from the moment they are married. Their families refuse to accept them back in the premarital home out of fear of bad reputation, lowered status and scandals which may arise because the married daughter has left her husband’s home. It is about time that this prejudicial thought process is axed from the patriarchal society and we begun to normalize and credit divorce as an acceptable remedy without negating divorce as a sign of failure.


Contemporary Divorce laws for Hindus

The present law which governs the Hindus is the Hindu Marriage Act which was enacted on 18th May, 1955 by the Parliament of India. A comprehensive part of the act, in the form of Section 13[5] is devoted to divorce between two Hindus under reasonable grounds such as adultery, cruelty, desertion, conversion to another religion, renunciation of world order, sufferance from venereal diseases which are communicable in nature, lack of whereabouts for 7 years or longer. It also grants the option of divorce by mutual consent to the spouses. The Act recognizes the plight and struggle faced by the female counterpart. In furtherance of which, a special sub clause is constructed which enables the wife to get a divorce on the grounds of offence of bestiality, sodomy, rape committed by her husband and the option of puberty etc. The Act paves way to the retrospective nature of marriage and permits women whose marriage was solemnized before 1955 to get a divorce, if they were subject to bigamy. It ensures the perfect mixture of equality between a husband and a wife without compromising the ideals of upliftment of women by yielding special emphasis on some extra contentions as a ground for divorce. There is also the provision to get divorce on the non-compliance of the decree of restitution of conjugal rights and judicial separation. With time, there have been several dynamic changes in the society which brings forward the need to adapt the divorce laws accordingly.


Divorce Laws: A Need for Change

In a society where marriage holds utmost importance and is a strong pillar on which the values of the society rests on; there is a strong need to be adapted according to the changing times. The laws that rule us must be in parlance with the social, economic, and demographic structure of the society. The law should be changed and amended from time to time because the values system that we believe in keeps on changing. While there was a time, when the practice of sati or ‘suttee’ was glorified yet with the passage of time it was declared as illegal and punitive in nature. It would not be beneficial to anyone if the law that governed us was not suitable to contemporary society. With this belief we must consider the present Hindu Marriage Act and find ways to make it more comprehensive and accommodating to the society at large. The following are the contentions that should be added to the law of divorce as a ground of divorce-


Irretrievable Breakdown of Marriage

Irretrievable breakdown of marriage centers on a matrimonial alliance which has broken beyond repair and only exists on paper. The continuity of such a marriage is fruitless and only causes emotional trauma and disturbance to both the parties.[6] It has been a bone of contention in the landmark cases of Naveen Kohli v. Neelu Kohli wherein it was held that restricting the ground of divorce to a particular offence or matrimonial disability causes injustice where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, there has arisen a situation in which the marriage cannot be worked.[7] The Hon’ble Supreme Court has exercised the use of Article 142 of the Indian Constitution several times to dissolve a marriage on the ground of irretrievable breakdown even though the same is not a ground under Section 13 of HMA. Moreover, the Supreme Court took further steps to cement the ground of irretrievable breakdown of marriage by waiving off the six-month cooling period, in matters of mutual consent, provided that the marriage is past mending and irreparable. It is high time that this ground is officially introduced in the framework to provide some respite to a couple which has been living in a relationship which cannot be salvaged.


Marital Rape

Marital rape is a phenomenon which haunts the life of Indian women who are subject to the unwanted touch without any respite and legal remedy to turn towards. 1 in 3 men admit to raping their wives, and 1 Indian woman is raped by her husband every 3 seconds.[8] Rape is rape and defending it because of the marital situation only stops the society from moving forward. The erstwhile Chief Justice of India Dipak Misra defended the lack of punishment and recognition of marital rape by commenting that “Marital rape should not be made a crime in India because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values”[9] The deep rooted patriarchal set up is enshrined in the minds of the people to such an extent, that women are not permitted to complain against their husband if they are raped. Marital rape should not only be included in the definition of rape under Section 376 of the Indian Penal Code but also deserves a place as a ground for divorce.

Domestic Violence

Domestic Violence is a menace which 31 per cent[10] of married women have to undergo with a smile on their face, hiding away their pain and sorrow to protect the reputation of their family. Women are subject to physical, mental, emotional, sexual and financial violence. Domestic violence is embedded in India on a humongous scale and there seems to be no end to this with recent facts revealing that 3,11,477 complaints of domestic violence were registered by women in a time frame of 68 days from 25th March, 2020 to 31st May, 2020.[11] Latest data has disclosed the urgency to deal with this issue. There should be increased awareness on domestic violence, counseling for the victims it has ensnared and the solutions as well as an education system which discourages violence of any form from a young age. Domestic violence as a ground for divorce will lead to further protection of the wife from a painful marriage.


Demand for Dowry

Marriages in India are celebrated with great pomp and show but there is a deep, dark path that is overlooked in the glamour of the decorations- the dowry that the family of the bride is obliged to give to the groom’s family. The latter is provided with lavish gifts, cash, clothing, vehicles, jewellery which is hidden in plain sight. The bride is often left vulnerable to face cruel taunts if the groom or his family is not satisfied with her dowry. Although dowry is prohibited under the Dowry Prohibition Act, 1961 yet it is widely practiced amongst the entire strata of the society irrespective of the class or section they belong to and there have been several instances where the wife is forced to kill herself or is brutally killed by her new family in lieu of lack of dowry brought along by her. Twenty-one dowry deaths are reported across the country every day whereas the conviction rate is less than 35 per cent.[12] Inspite of the inclusion of Section 498A and 304B of the Indian Penal Code, many cases are not reported and there continues to be an increase rate in the suspicious deaths of the bride in the conjugal home. There needs to be an umbrella under which the bride can be protected and can seek divorce from her husband and henceforth, demand for dowry should be a contention for divorce and should be introduced in the Hindu Divorce law.


Attempt or Commitment of Female Foeticide and Infanticide

It is a shame that the Indian society continues to wear rose tinted glasses and goes on with the prejudicial belief of the superiority of the male child. The girl child becomes a victim to the old-age beliefs and many times is killed in the womb of her mother. The pre-determination of sex or sex-selection is illegal in India under the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and yet it continues to prevail for the very reason it was banned. Out of 8000 foetuses aborted in six hospitals, 7999 foetuses were girls.[13] Female infanticide and foeticide is more prevalent in the rural areas and owing to the common home birth practice many girls are silenced as soon as they are born with no record of their birth or death. Meanwhile, the mother is silenced and even gets subjected to taunts for giving birth to a girl. There are cases, where the mother is wrongfully informed about the child being stillborn or passing away soon after she was born. There is a stringent need to provide an escape to the girl-bearing mother and thus, attempt or commitment of female infanticide or foeticide must be added as a ground for divorce.


Abortion without the Knowledge or Consent of the Spouse

Abortion is a common practice in India with 15.6 million abortions occurring annually.[14] Yet the reasoning behind the abortion is not always moral. Gender based prejudice triumphs the mind of the Indian populace and the female child is aborted. The child is the by-product of both the parents and the continuation or dis-continuation of the pregnancy should be a collective and well-thought-out decision. Unfortunately, there are many cases wherein the female is taken to the doctor and unbehest to her, an abortion is performed. There are even cases, where the wife unilaterally takes the decision to end her child’s life without the consent or knowledge of her husband. While the newly amended Medical Termination of Pregnancy (MTP) Act is progressive in nature, there is a need to protect the spouse from the unwanted end of pregnancy by the other spouse. As a result, uninformed and unknowledgeable abortion by the spouse should be added as a ground for divorce.


Conclusion

Divorce has been a controversial topic which faces a lot of backlash owing to the ‘family value system’ in India. India has the slightest divorce rate in the world which has been achieved due to the aforementioned value system. The outlook of the diminished divorce rate creates a false sense of security towards a happy and successful marriage but what we cease to realize is that multiple times, a couple resorts to stay unhappy within the marriage because of societal pressures. The current generation seems to have a more modern outlook towards divorce and accepts it as the solution which will end up with two separate, happy individuals as opposed to one unhappy couple. Changing times have brought on a changing outlook on how divorce is viewed in the society. But we must continue the fight to make divorce acceptable and for this more awareness and education needs to be granted alongside the changes in the legal system which support the modern thinking system.







[1] https://theweek.com/articles/528746/origins-marriage#:~:text=The%20first%20recorded%20evidence%20of,Hebrews%2C%20Greeks%2C%20and%20Romans. [2] https://phillyesquire.com/history-of-divorce-meaning/ [3] http://www.16108.com/dharma/training/divorce.htm [4] https://www.bbc.com/news/world-asia-india-37481054#:~:text=1.36%20million%20people%20in%20India%20are%20divorced.&text=More%20strikingly%2C%20the%20number%20of,divorced%20and%20separated%20than%20men [5] https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf [6] Munish Kakkar v. Nidhi Kakkar C.A. No. 9318 of 2014 [7] AIR 2006 SC 1675 [8] https://www.equalitynow.org/marital_rape_is_not_a_crime_in_india_it_needs_to_be [9] https://theswaddle.com/marital-rape-inda-decriminalized-crime/ [10] https://www.news18.com/news/india/the-elephant-in-the-room-every-third-woman-in-india-faces-domestic-violence-1654193.html [11] https://www.thehindu.com/data/data-domestic-violence-complaints-at-a-10-year-high-during-covid-19-lockdown/article31885001.ece [12] https://www.indiatoday.in/mail-today/story/dowry-deaths-national-crime-records-bureau-conviction-rate-972874-2017-04-22 [13] https://www.sascv.org/ijcjs/snehlata.pdf [14] https://www.guttmacher.org/news-release/2017/national-estimate-abortion-india-released


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