India is a common law country, and the law is changing according to the various problems and situations arising. The result of this change of law with time changes in the adoption of new rules for divorce in India.
The object of divorce law always is to reach and find points of settlement and cohabitation between husband and wife. If the couple is not in a state to adjust with each other, then the court may grant a divorce. Divorce results in the dissolution of marriage, and it is a right against the world. With the change in the trend of marriages, the laws regarding divorce are also amended to meet the need for time. The amendment in the divorce laws is to ensure the easing of the lengthy and time taking process. In light of the same, various new laws are placed before us.
Waiving of 6 Month Mandatory Period
When couples approach the court for divorce under Section 13B(2) of the Hindu Marriage Act, 1955, the court grants six months for rehabilitation. Section 13B(2) deals with divorce by mutual consent. The purpose behind granting six months period was to save a marriage. However, now the Supreme Court is of a contrary view. The Supreme Court in Akansha v. Anupam Mathur states that the six months period is not mandatory but discretionary. The lower courts are speeding up with the proceeding relating to divorce as per the directions of the Supreme Court. The discretion of waiving can come in play when the couple decides to peacefully resolve their issues, including alimony, custody of a child, and any other dispute.
The Supreme Court is of the contrary view keeping in mind the purpose of the period. The opinion is that the court should be possessed with the powers to give parties immediate relief. Further, the power should only be used when it is inevitable that marriage cannot survive. Also, when fresh rehabilitation can take place if marriage is dissolved, the court may exercise its discretion.
Read Also: Men’s rights in Divorce in India
Law of Maintenance
Section 25 of the Hindu Marriage Act, 1955 provides power to court for ordering the payment of maintenance. The Court may order the payment either monthly or a period as it deems fit. Such an order is for assisting the woman after the divorce for maintaining the same standard of living. If the marriage is not under Hindu law, then, a woman can claim maintenance through Section 125 of the Criminal Procedure Code.
The Supreme Court recognizes. Live-in relationships as marriage and the woman can claim maintenance for the same. If cohabitation is for a long time, then, the strict proof is not necessary for proving marriage. Due to all these reasons, the woman is eligible to claim maintenance under Section 125 of the Criminal Procedure Code. The perspective of providing rights to women is broader now.
The women in a live-in relationship now are eligible to claim maintenance under the Protection of Women from Domestic Violence Act, 2005. This was held in Lalita Toppo v. State of Jharkhand (2018) by the Apex Court. According to the judgment, the woman need not be eligible for maintenance under Section 125 Criminal Procedure Code (CrPC).
Irretrievable Breakdown of Marriage
When there arises a condition that spouses living together cannot live in a relationship, i.e., marriage, it is equivalent to separation. There is no law governing this particular issue. Section 13 of the HMA can consider this as a ground for divorce, depending on the discretion of the court.
The Supreme Court gives Irretrievable Breakdown of Marriage legality as there is no incorporation of the concept in divorce law. Supreme Court has in the judgment of Sangamitra Ghose v. Kajal Kumar Ghosh (2007) by exercising its power under Article 142 of the Constitution decided that Irretrievable Breakdown of Marriage forms a ground for divorce. Reliance was placed on the 71st Law Commission Report, 1978.
Apex Court finds the reasoning appropriate that if there exists no possibility of a couple getting back together after its breakdown, then, divorce is an adequate remedy. The suggestion by Apex
Adultery not punishable
Adultery, a ground for divorce is not punishable after the judgment passed by the Supreme Court. It was punishable earlier; however, the court gives reasoning that punishing either one of the spouses or wife’s lover will not help in saving the marriage. The penalizing provision is struck down, taking a right to punish the person committed adultery as it is arbitrary. It still serves to be a ground for divorce, though. There is no restriction in the right to choose the sexual partner after marriage.
Unconstitutionality of Triple Talaq
Muslim Law has followed the practice of triple talaq, which has been arbitrary to Muslim Women. Since mere saying ‘talaq’ thrice cannot be a basis of divorce. The Apex Court has taken the same view and declared the triple talaq to be unconstitutional. The reasoning is that it violates the fundamental right of Muslim Women.
The Triple talaq bill is now pending from the Government. After passing of the bill, the law will govern divorces under the Muslims.
Christian Divorce Laws
The position of Christian law regarding divorce is different now. The granting of divorce decree shall be from a Civil Court and not from the ecclesiastical tribunal. This is necessary since the divorce decree forms to be a right against the world at large. The law on the subject is clear from the judgment of Molly Joseph v. George Sebastian (1996). The judgment states that divorce under personal law cannot override the law. Also, if personal law grants divorce and the person marries someone else, it amounts to bigamy. Therefore, for granting a decree of divorce, only civil courts reserve the power, which covers the Christians as well.
Such power vests in the Civil Courts under Section 18 of the Divorce Act, 1869. Thereby, taking away the powers of personal law courts.
There is always a need to reform law. With the change in time, the thinking, the standards and the morals of society are continuously changing. This forms a basic reason to amend the law time and again. Divorce Laws in India are essential to regulate the dissolution of marriage and to settle the disputes between the couple. However, when it certain that no conclusion can be reached, then divorce should be granted. The reformation in divorce focuses on the major changes that our society has gone through. And, there still exists a need for change in the law.