Divorce in India
The Law All major religions have their own laws which govern divorces within their own community, and separate regulations exist regarding divorce in interfaith marriages. Hindus Hindus,, includ including ing Buddhi Buddhists, sts, Sikhs Sikhs and Jains, Jains, are govern governed ed 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. Civi Civill marr marria iage ges s and and inte interr-co comm mmun unit ity y marr marria iage ges s and and divo divorc rces es are are governed by the Special Marriage Act, 1956 (Kapur and Cossman 101). Other Other commun community ity specif specific ic legisl legislati ation on includ includes es the Nativ Native e Conver Converts' ts' Marriage Dissolution Act, 1866 that allows a Hindu to appeal for a divorce if a spouse converts to Christianity (Virdi 36-37). Grounds for Divorce In most Western nations, there are approximately 16 distinct reasons for for whic which h divo divorc rces es are are grant granted ed.. In Indi India, a, howe howeve ver, r, only only five five main main reas reason ons s are are gene genera rall lly y acce accept pted ed as su suff ffic icie ient nt grou ground nds s for for divo divorc rce e (Choudhary 90). Adultery. Adultery. While no formal formal definitio definition n of adultery adultery exists, exists, it does have "a fairly established meaning in matrimonial law" (Diwan 171), namely "the voluntary sexual intercourse of a married man or woman with a person person other other than than the offend offender er's 's wife wife or husband husband"" (Choud (Choudhar hary y 91 91). ). While While the law consid consider ers s it valid valid ground grounds s for either either sex, sex, adulte adulterou rous s women women are "judge "judged d more more harshl harshly" y" than than men men (Kapur (Kapur and Cossma Cossman n 102). The various religious regulations a e not unanimous on this issue. The law regarding Hindus allows divorce to be granted on the grounds of infide infideli lity ty of either either husband husband or wife. wife. The Christ Christian ian law, law, howeve however, r, would traditionally not have granted a divorce to a woman solely on the the grou ground nds s of adul adulte tery ry.. She She woul would d have have had had to prov prove e anot anothe herr viol violat atio ion, n, su such ch as crue cruelt lty y (Kap (Kapur ur and and Cossm Cossman an 10 1022-4) 4).. A rece recent nt Bombay Bombay High High Court Court decisi decision on "recog "recognis nised ed cruelt cruelty y and desert desertion ion as indepe independe ndent nt ground grounds s for the dis dissol soluti ution on of a Christ Christian ian marria marriage, ge,"" striking striking down a section section of the law that allowed allowed for an unconstitut unconstitutional ional distinction between the sexes (Raiker-Mhatre 1).
Desertion. The three main components of desertion are the "disruption of coha cohabi bita tati tion on,, abse absenc nce e of just just or reas reason onab able le caus cause e and and thei theirr combination combination throughout throughout three three years" years" before before the abandoned abandoned spouse spouse may petition for a divorce (Virdi 71). 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 (Choudhary 91). 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 husba husband nds s and and wive wives, s, the the way way in whic which h the the law law is inte interp rpre rete ted d and and appl applie ied d su sugg gges estts that that wome women n and and men men are are eval evalua uate ted d by rathe atherr different standards" (Kapur and Cossman 105). This category includes both physical and mental abuse and neglect (Choudhary 91). 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 cruel cruelty ty to be prove proven. n. The nation national al Indian Indian Christ Christian ian commun community ity seems to have embraced this judgment (Raikar-Mhatre 1-2. Impo Impote tenc ncy. y. This This refe refers rs to the the phys physic ical al inabi inabili lity ty of the the coup couple le to cons consum umma mate te the the marr marria iage ge (Cho (Choud udhar hary y 91 91)) or the the refu refusa sall by one one spous spouse e to do so (Diw (Diwan an 13 136) 6).. Some Some case cases s have have esta establ blis ishe hed d that that steril sterility ity can be constr construed ued to mean mean non-co non-consu nsumm mmati ation on if the other other partner is not aware of the condition before the marriage (Diwan 139). Chronic Disease. Both mental and physical illnesses are included in this category, as well as sexually transmitted diseases (Choudhary 92). Not all all reli religi gion ons s reco recogn gniz ize e iden identi tica call dise disease ases s as grou ground nds s for for divo divorc rce. e. Christians and Parsis do not allow divorce for a sexually transmitted disease or leprosy while the other communities do (Diwan 204-5). Consequences of Divorce 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, food, clothi clothing ng and shelte shelterr for themse themselve lves s and their their childr children. en."" The gove govern rnme ment nt in urba urban n area areas s us usua uall lly y prov provid ides es some some form form of publ public ic assi assist stan ance ce to sing single le moth mother ers, s, but but this this serv servic ice e is not not full fully y take taken n advantage of because most do not know of its existence (Amato 210). Often a woman is not able to rely on her family for support because many many pare parent nts s "fee "feell they they have have disc discha harg rged ed thei theirr obli obliga gati tion ons s to a daughter by arranging her marriage and providing a dowry." Dowries are are not not retu return rned ed after after a divo divorc rce. e. Also Also,, due due to the the socia sociall stig stigma ma of
divorc divorce, e, women women find find it diffic difficult ult to remar remarry ry and usuall usually y attem attempt pt to establish an independent household (Amato 211). 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 than men men in this this regar regard. d. Ther There e cont contin inue ue to be segm segmen ents ts of Indi Indian an society that feel divorce is never an option, regardless of how abusive or adul adultterou erous s the the husb husban and d may be which hich adds adds to the great reate er disappr dis approva ovall for women. women. A divorc divorced ed woman woman often often will will return 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 divorc divorced ed woman's woman's presen presence ce would would ward ward off possib possible le marri marriage ages s 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 acceptance back into society. society. Women from higher higher classes classes tend to have an easier easier time than middle middle or lower lower class women women in returning 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 (Amato 212-4). Source : http://www.english.emory.edu/Bahri/Divorce.html
