India is a country known widely for its diversity. It is a country with a variety of people differing in cast, religion, creed, languages, traditions and culture. Also, there are some specific laws for a particular religion. Therefore, Indian marriages are also governed by the respective personal laws which are determined by the religion of the person.
‘The Hindu Marriage Act’, 1955 governs the marriage and divorce for Hindus, Buddhists, Sikhs and Jains. On the other hand, The Muslim, Christian and Parsi communities have different laws governing marriage and divorce. The Muslim community has the ‘Dissolution of Muslim Marriages Act’, 1939. Cristian divorces are governed by ‘The Indian Divorce Act’, 1869. For the Parsi community, there is ‘Parsi Marriage and Divorce Act’, 1936. For couples who marry in different communities and castes apart from their own, marriage and divorce are governed by the ‘Special Marriage Act’, 1956. Also, the ‘Foreign Marriage Act’, 1969 in India governs divorce laws in marriages where either spouse is of a different nationality.
There are mainly two methods of ending a marriage in India i.e. either through divorce or the annulment of the marriage. There is a third method known as ‘Legal Separation’ but in that method, the married couple just gets separated and hence, it is not considered as an ending of the marriage. Also, the partners are prohibited from remarrying. As for divorce and annulment, the grounds for both of them differ.
Divorce dissolves a marriage completely. The legally or formally recognized union of two people (a man and a woman) as partners in a personal relationship is marriage and the legal or formal ending of a marriage is divorce. A divorce is a legal decree given by the respective court that ends a marriage before the death of either spouse. During a divorce proceeding, a court may resolve issues of child custody, division of assets, and spousal support or alimony. After a divorce becomes final, the parties are no longer bound to one another in the eyes of law.
When can a mutual consent divorce be filed?
The parties intending to end a marriage are required to wait for at least one year from the date of marriage. The couple has to show proof that they have been living separately for a period of one year or more before filing the petition for divorce and that during this one year of separation they have not been able to live together as husband and wife.
Divorce consists of two types - mutual consent where both the parties to the marriage seek divorce or a contested divorce where only one of the parties want divorce. Now, the cooling-off period of 6 months also has been waived off by the Supreme Court. In that period, the couple was expected to settle the issues with time.
Common Grounds for Divorce
If the partner’s conduct is injurious or harmful, then there is sufficient ground for obtaining divorce. Furthermore, it can be mental as well as physical.
Adultery is a criminal offence in India. It means to have sexual intercourse outside one’s marriage. There can be open marriages where there is the consent of either of the spouse for another sexual relationship, but this case is very rare in India. It can be highly disturbing for a person to have his/her spouse engage in sexual activities outside marriage.
When a person is mentally ill or unstable, he/she cannot perform the normal duties expected in a marriage. This becomes a valid ground for divorce.
A spouse abandoning the other without reasonable cause is a valid ground for divorce. However, it should be proved with evidence that there was malicious intention of the spouse to desert the other one.
Communicable diseases which include HIV/AIDS, syphilis, gonorrhoea or a form of leprosy that is virulent and incurable are a valid ground for divorce.
Presumption of Death
If either of the spouses has not been heard of by the other spouse as being alive for a period of at least seven years, then the spouse who is alive can obtain a divorce on this ground.
This means conversion of a spouse to another religion. No time limit has been prescribed for this.
Renunciation of the World
If a spouse surrenders his/her married life and chooses to be a ‘sanyasi’ or renounces the world, the aggrieved spouse may obtain a divorce.
Annulment declares a marriage as null and void. Null and void here, refers to as if the marriage did not happen at all. An annulment is allowed to take place in cases of void and voidable marriages.
A void marriage is not a marriage at all, it is considered to be invalid from the day it came into existence. Voidable marriage is the one which can be avoided if the parties to the marriage say so. Voidable marriages are valid unless its validity is questioned by someone. Once the validity of it is questioned, the decision lies with the parties to the marriage whether to continue it or not. In case of void marriages, parties can remarry without getting a decree of nullity from the court. This cannot be done in case of a voidable marriage.
Common Grounds for Annulment-
Inability to consummate the marriage- If either of the spouses is impotent.
Incapable of giving Consent at the time of the marriage- If the age of the bride is below 18 years, she is considered incapable of giving consent. In case of the bridegroom, the limit has been set to 21 years.
Mental Disorder- If either of the spouse was suffering from a mental disorder, as the reason of which, he or she could not be considered fit for marriage or procreation of children.
Insanity or epilepsy- If either of the spouses suffered from recurrent attacks of insanity or epilepsy then it’s a ground for annulment.
Under the legal marriage age- In India, the legal age of marriage for males is 21 years and for females is 18 years. If either of the spouses is under this age, then annulment can be sought.
The following grounds shall render a marriage void/ illegal:
Bigamy- The offence of marrying someone while already married to another person is bigamy. It is void-ab-initio and non-existent.
Sapinda relations-Marriages of such relationships are void.
Consent is obtained by fraud.
Concealment of material facts- If any material fact like the age, past criminal record has been concealed by the parties then the aggrieved spouse can seek an annulment on this ground.
Pregnancy- If at the time of the marriage the respondent is carrying a child of another person, the husband can seek an annulment.
Changes in Laws governing Divorce-
1. SC says 6- Month waiting period for Divorce under Section- 13B(2) of the Hindu Marriage Act not mandatory but discretionary.
2. Unconstitutionality of Triple Talaq as it violates the fundamental rights of Muslim women.
3. Divorce petition by a civil court is a must for people belonging to Christian religion now which was not the same before.
These were the two methods for ending a marriage legally in India. Also, due to some changes mentioned above, the liberty has been granted to some sections of the society but at the same time, the people taking undue benefits of some laws have been restricted from doing so.
Earlier, marriage was considered so sacred by the Indian people that divorce and annulment stood no chance. Women were treated roughly. Domestic violence, dowry practices, Sati practice were prevalent and women kept mum through all of this. But society has changed! Women don’t want to continue a relationship if they suffer from it just for the sake of the sacredness of it. That is where women have grown and developed through ages. They come forward and speak up with the help of social media, various #metoo movements and file cases against cruelty.
Not only women, but men too have the right to file for a divorce if the woman doesn’t treat him right. There are many cases today where women threaten men and file fake rape, violence, allegations. This is a serious matter which has been neglected by our society. Men too suffer, they too go through the same that women do.
Losing a partner is as torturing for a man as a woman. Therefore, these provisions have been made by our constitution to lessen the mental burden that it puts on a person.