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Marriage and Divorce Law
The
Act
All major
religions have their own laws which govern divorces within their
own community, and separate regulations exist regarding divorce in
interfaith marriages. Hindus, including Buddhists, Sikhs and Jains,
are governed by the Hindu Marriage Act, 1955; Christians by the
Indian Divorce Act, 1869; Parsis by the Parsi Marriage and Divorce
Act, 1936; and Muslims by the Dissolution of Muslim Marriages Act,
1939, which provides the grounds on which women can obtain a
divorce, and the uncodified civil law. Civil marriages and
inter-community marriages and divorces are governed by the Special
Marriage Act, 1956. Other community specific legislation includes
the Native Converts' Marriage Dissolution Act, 1866 that allows a
Hindu to appeal for a divorce if a spouse converts to
Christianity.
Grounds
for Divorce
In most
Western nations, there are approximately 16 distinct reasons for
which divorces are granted. In India, however, only five main
reasons are generally accepted as sufficient grounds for divorce.
Adultery
While no formal definition of adultery exists, it does have "a
fairly established meaning in matrimonial law", namely "the
voluntary sexual intercourse of a married man or woman with a
person other than the offender's wife or husband”. While the law
considers it valid grounds for either sex, adulterous women are
"judged more harshly" than men. The various religious regulations
are not unanimous on this issue. The law regarding Hindus allows
divorce to be granted on the grounds of infidelity of either
husband or wife. The Christian law, however, would traditionally
not have granted a divorce to a woman solely on the grounds of
adultery. She would have had to prove another violation, such as
cruelty. A recent Bombay High Court decision "recognised cruelty
and desertion as independent grounds for the dissolution of a
Christian marriage," striking down a section of the law that
allowed for an unconstitutional distinction between the sexes”.
Desertion
The three main components of desertion are the "disruption of
cohabitation, absence of just or reasonable cause and their
combination throughout three years" before the abandoned spouse
may petition for a divorce. There also must be an obvious intent
on the part of the offending spouse to remain permanently apart
from the other. This statute also applies to cases in which a
spouse has been heard from for at least seven years.
Cruelty
As with adultery, "the definition of the type of behavior that
constitutes cruelty varies according to the gender of the
petitioner" of the divorce. "Despite the fact that cruelty is
often equally available to husbands and wives, the way in which
the law is interpreted and applied suggests that women and men are
evaluated by rather different standards". This category includes
both physical and mental abuse and neglect. A court decision made
in early May 1997 made cruelty sufficient grounds for a Christian
woman to obtain a; previously, the law required both adultery and
cruelty to be proven. The national Indian Christian community
seems to have embraced this judgment.
Impotency
This refers to the physical inability of the couple to consummate
the marriage or the refusal by one spouse to do so. Some cases
have established that sterility can be construed to mean
non-consummation if the other partner is not aware of the
condition before the marriage.
Chronic Disease
Both
mental and physical illnesses are included in this category, as
well as sexually transmitted diseases. Not all religions recognize
identical diseases as grounds for divorce. Christians and Parsis
do not allow divorce for a sexually transmitted disease or leprosy
while the other communities do.
Social
and economic consequences of Divorce in the Indian society:
Economic:
There is great disparity between the economic ramifications of
divorce between men and women. Men remain relatively unaffected
while women, especially those with children, have difficulty
"providing food, clothing and shelter for themselves and their
children." The government in urban areas usually provides some
form of public assistance to single mothers, but this service is
not fully taken advantage of because most do not know of its
existence. Often a woman is not able to rely on her family for
support because many parents "feel they have discharged their
obligations to a daughter by arranging her marriage and providing
a dowry." Dowries are not returned after a divorce. Also, due to
the social stigma of divorce, women find it difficult to remarry
and usually attempt to establish an independent household.
Social:
While
India feels that one should have the right to divorce, it is
still a highly stigmatizing action. Women are looked upon more
harshly than men in this regard. There continue to be segments
of Indian society that feel divorce is never an option,
regardless of how abusive or adulterous the husband may be which
adds to the greater disapproval for women. A divorced woman
often will return to her family, but may not be wholeheartedly
welcomed. She puts, especially if she has children, an economic
burden on her family and is often given lowly household tasks to
perform. There is also the risk that a divorced woman's presence
would ward off possible marriages for other daughters within the
household. Unavoidably, the overall status of the family and
household are lowered by having a divorcee living with amongst
them. A woman's class and caste are a major factor in her
acceptance back into society. Women from higher classes tend to
have an easier time than middle or lower class women in
returning to the social order after a divorce. An exception to
this model is the extreme bottom of the society who have
experienced little rebuff from peers after a divorce. This
results from their already atypical status in society.
Please feel free to speak to Mr. Rakesh Prabhakar at + 91
9811332229
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