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RECONSIDERING DIVORCE LAWS in the LIGHT of NEW SOCIAL DEVELOPMENTS Smitha P1

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RECONSIDERING DIVORCE LAWS in the LIGHT of NEW SOCIAL DEVELOPMENTS Smitha P1 RECONSIDERING DIVORCE LAWS IN THE LIGHT OF NEW SOCIAL DEVELOPMENTS Smitha P1 Family is a vital institution which determines the stability of the society and socialization of future citizens and serves important religious, educational, medical, and social welfare functions. One of the ways in which the family is formed is by way of marriage. In marriage husband and the wife jointly establishes family with division of responsibilities. Traditional view is that woman is not fit to earn livelihood and man is not fit to manage domestic affairs. Marriage binds them to make up each other's deficiencies. After marriage the individual becomes part of the family, a portion which contributes towards the structure of family. Individual’s rights, to an extent, will be substituted by individual’s obligations. These obligations are intended to maintain the structure of family intact. One’s interests and rights take back stand when it comes in conflict with the interest of the family as a whole. THE CONCEPT OF ORIGIN OF DIVORCE However, today the institution of marriage suffers a setback with the changes in the society. The increased rate of divorce is one of the factors affecting marriage and in turn the family. To understand the present scenario and the reasons behind it, we shall analyze concept of marriage and origin of divorce in India. In ancient India marriage has been considered as an indissoluble union between a man and women not only during this life but also for all lives to come2. Two souls come together and marry because their karmas are intertwined and they have to resolve many things together upon earth in order to ensure their mutual salvation. Marriage has been placed one of the sixteen samskara of a Hindu. Samskara is a socio religious rites by performance of which life of present Hindu is sanctified3. According to Grihya Sutra, there were eight kinds of Marriages in which the 1 Guest Faculty, Govt.Law College, Thrissur, Kerala 2 Basant kumar singh, “The changing face of Hindu marriage”, available at www.hinduwebsite.com (Last visited on 26/04/2016) 3 “Marriage in Hinduism”, available at www.sociologyguide.com 1 | Page Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 3 Swayamvara system of marriage was very common. It is the system of free choice of a husband by the maiden. According to Hindu traditions if a girl was not married by puberty, she would soon find a lover, no matter how closely her parents protected her4. In Rig Vedic period the marriage was monogamous. Child marriage was unknown and there were unmarried girls like Ghosha who lived all her life with her parents5. There were no marriage restrictions. There was complete freedom both to the boy and the girl in the selection of their partner. Hindu scriptures do not recognize a woman's right to leave her husband under any circumstances. A married man can leave his wife or marry another on the grounds of infidelity, childlessness, an incurable disease such as leprosy or insanity, or ever mere suspicion of adultery or infidelity6. Later Manu and others attacked the Gandharva and other similar systems. Under the new system women were stripped of their traditional independence and placed permanently in male custodianship: first of their fathers in childhood, then of their husbands through married life, and finally of their sons in old age7. Parental control of marriage might have emerged during this period as a mechanism to prevent the intermixing of ethnic groups and castes. Vedic text as well as Smrities contains no advertence at all to divorce. Manu declares "Let mutual fidelity between husband and wife continue till death. Husband can remarry when there is barrenness, misconduct, sickness, or incompatibility in wife. The wife could abandon a husband who was cruel, vicious, or impotent. Narda and Parasara says that a woman could obtain another husband if her first husband is missing, dead, a religious recluse, impotent or outcaste. Divorce seems to make its appearance during the Mauryan period. Under Kautilya's Arthasastra marriage might be dissolved by mutual consent in case of the unapproved form of marriage8. Kautilya expressed the view that if there is mutual aversion then a release is possible. Women had right to take a second husband when the husband is lost or unheard of, when he is dead or has renounced the world and become a sanyasi or when the husband is impotent or patita (debase). Later when the British came it had tremendous impact on the legal system in India. In many respects, English law in letter and spirit came to be applied in India. Indian Divorce Act 1869 was enacted adapting the principles of Matrimonial causes Act 1857 of England. Matrimonial 4 George Monger, “Marriage customs of the world: from henna to honeymoons”, available at www.hinduweb.com 5 Supra. 6 Supra. 7 Anjani Kant, Women and the law, APH Publishing, Allahabad, (1st edn.-2003) p.162 8 Supra. 2 | Page Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 3 Causes Act of 1857 reflected the social changes that took place in England. This Act brought about a major change in the British society. The power and authority of the Church over matrimonial matters was divested in civil courts. As the concept of divorce was very new and was considered revolutionary the grounds for obtaining divorce were very stringent. Hence the ground for divorce in the Divorce Act had also become rigid as it was structured in the same format as that of English Act. It reflected the Victorian ideas and sense of morality. Now, therefore, it emerges that the courts in India were to grant relief based on the principles and rules of the Court for Divorce and Matrimonial Causes in England; and the English Courts, in turn, were to follow the principles and practice of the old Ecclesiastical Courts. In other words, the Courts in India granted relief in matrimonial causes (under the Indian Divorce Act, 1869) on the basis of the principles evolved by the old Ecclesiastical Courts in England. During British period India experienced various social reform movements as a result of which new legislations were enacted. Special Marriage Act was passed in 1872 with a view to legalize inter caste and inter religious marriages. It also allowed the parties to dissolve the marriage on certain grounds and by mutual consent and in 1954 eight guilt grounds were added. Local Acts like Hindu Nibandha of 1937, Bombay Hindu Divorce Act 1947 incorporated judicial divorce on many grounds in par with Indian divorce Act. Under these Acts customary divorce was still valid.9 Before Hindu Marriage Act 1955, Hindus could obtain divorce only if a custom governing them allowed it. Among the low caste Hindus divorce has always been available under custom on the grounds of renunciation, abandonment or repudiation, Immorality, unchastity, adultery or conversion, divorce by mutual consent and divorce under special enactments; In south India, particularly in the erstwhile state of Travancore and Cochin divorce among different castes and groups were recognized and regulated under certain statutes.10 Among the matrilineal communities, such as marumakkathayam and aliyasantana marriage has always been considered a consensual union and dissoluble by mutual consent. There was concept like ‘sambandham’ which even though a valid union, lacks the traits of present day marriage. 9 Basand kumar Singh, “The changing face of Hindu marriage”, available at www.hinduwebsite.com 10 Paras Diwan, Family law Hindus, Muslims, Parsis and Jews, Allahabad Law Agency, Allahabad (5th edn.-2008) p.211 3 | Page Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 3 When the woman no more wants the man she can just get him out of the house. Therefore divorce was not a new thing in Indian society as it was available under the customary law11. The Hindu marriage Act was passed on the basis of guilt theory. The guilt theory requires the opposite party to be innocent; otherwise relief will not be granted. Adultery, desertion and cruelty were grounds of judicial separation and not of divorce. Living in adultery was ground for divorce. Apart from this conversion to non-Hindu religion, insanity continuously for three years, virulent and incurable leprosy of three years duration, venereal disease in a communicable form, renunciation of the world by entering into a holy order, or not being heard of alive for a period of seven years are the other grounds of divorce. A wife can file petition for divorce on the ground that since the solemnization of marriage her husband has been guilty of rape, sodomy, bestiality or if he undergoes a second marriage before 1955. In 1964, the Act was amended to include the provision that, either party to a decree of judicial separation or restitution of conjugal rights could sue for divorce if they had not resumed cohabitation for two years. The assumption underlying this reform is that if parties are living separate for two or more years, then it is a sufficient evidence of breakdown of marriage. The marriage should be dissolved without bothering the guilt or innocence of the parties. The Marriage laws (Amendment) Act, 1976 made the traditional guilt grounds like cruelty, desertion or adultery grounds of divorce. The period of two years in the case of insanity, three years in the case of virulent and incurable deceases and venereal deceases were dropped. In such cases other party can immediately sue for divorce. The period is reduced from two to one year in the case of divorce on the ground of breakdown of marriage. If wife has obtained a maintenance order she can apply for divorce on the ground since the order cohabitation is not resumed for one year or more; and if the marriage is solemnized before 15 years of age, and after attaining 15 years but before completing 18 years she had repudiated the marriage, she can sue for divorce.
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