Divorce

DIVORCE

Introduction

India ranks lowest on the global divorce rate indexes. “The divorce rate in India is lower than 1%” as per reports by the BBC. If a person wants to terminate their marriage, they have a legal right to do so and can also request alimony from their spouses. In India, there are five major laws that govern alimony, which include the Hindu Marriage Act of 1955, the Muslim Personal Law, the Indian Divorce Act, 1869, the Parsi Marriage and Divorce Act of 1936, and the Special Marriage Act of 1955. 

Divorce

• Divorce is the legal process that provides a formal ending to a marriage. 

• Marriage is a social legal contract between a spouse who expects to live together for their lifetime. However, some couples choose to end their marriage due to physical or mental problems. Divorce, which can be mutual or contested, is a legal dissolution of the marriage. Indian courts strive to unite spouses and regulate society, but may face harassment from their partner. In such cases, the courts are keen to decide who should receive divorce, considering the future of the couple and their families.

• A valid marriage can be dissolved by a decree of dissolution of marriage or divorce and Hindu Marriage Act, The Divorce Act and Special Marriage Act allow such a decree only on specific grounds as provided in these acts: cruelty, adultery, desertion, apostasy from Hinduism, impotency, venereal disease, leprosy, joining a religious order, not heard of being alive for a period of seven years, or mutual consent where no reason has to be given. Since each case is different, court interpretations of the statutory law get evolved and have either narrowed or widened their scope.

• Family Courts are established to file, hear and dispose of such cases.

Alimony in Divorce

 In India, though more girls are visiting school now, for many, the inevitable reality seems to be married before completion of upper education. Girls are married off early and bear children long before they ought to. This triggers a state of poor maternal health and is one of all the foundation causes of high levels of kid stunting and wasting in India. there's also the likelihood of a wedding not figured out for diverse reasons, leaving the girl or young lady in extreme distress because often she isn't financially independent. Parliament and also the courts have persistently enacted legislation to provide women better rights.

Article 15(3), which states ‘nothing during this article shall prevent the State from making any special provision for ladies and children, read along with Article 39, which directs state policy towards equal pay and opportunities for both men and ladies, and protecting the health of ladies and youngsters, are two key constitutional safeguards. On Wednesday, the Supreme Court leaned on these two Articles, and a number of other laws, while hearing a dispute between a Mumbai-based couple, and set down comprehensive guidelines on alimony. The court ruled that an abandoned wife and kids are entitled to ‘maintenance’ from the date she applies for it in an exceeding court of law.

Right To Alimony And Maintenance

Women have the proper to alimony after marriage. If women don't seem to be given a sufficient amount as alimony they'll approach the court for maintenance. The alimony could be a payment amount given after divorce and if on regular time intervals the quantity is paid as per a scheduled date then it's maintenance. Alimony isn't adequate to meet her expenses then the wife can arouse maintenance until her remarriage.

The right of girls in divorce includes her basic right to arouse an allowance so she could maintain herself. Maintenance means a selected sum that the husband pays to the wife after their divorce in order that it's convenient for her to take care of herself. Maintenance constitutes the necessities to sustain oneself. After the divorce women won't have any means for independent living in order that they could claim maintenance. This right is on the market to women in India. just in case the husband is neglecting this right, the ladies can seek a remedy for the identical under section 125 Cr. P.C.

However, under section 125(4), it's mentioned that if both the spouses don't seem to be cohabiting through mutual consent then the ladies cannot elicit maintenance. But if a divorce decree enabled them to measure separately, a claim for maintenance by the wife is often initiated. Some personal laws like Parsi and Christian laws have the availability of maintenance further. Section 125 Cr. P.C. may be a criminal claim just in case the wife is denied maintenance and this is often applied to any or all laws equally.

Case laws under less alimony settlement.

1. Kulbhushan Kumar v. Raj Kumari and Anr (1970)

• Facts - In this case, the husband and wife were married in May 1945 but later fell out of love. A daughter was born in August of 1946. The wife requested maintenance in 1951 via registered letter, and in 1954 she filed a maintenance lawsuit. The husband’s salary was about Rs. 700 per month, and he also made extra money from his private practice.
• Issues - Fixing how much maintenance should be paid to the wife and daughter. Considering whether the wife’s inheritance from her father qualifies as income for maintenance purposes.
• Judgment - According to Section 23(2) of the Hindu Adoptions and Maintenance Act, 1956, the High Court determined that the wife should receive Rs. 250 in monthly maintenance. The income-tax authorities set a cap on this sum at 25% of the wife’s total income. Maintenance for the girl was established at Rs. 150 per month. The Supreme Court determined that the wife’s money from her father should be treated as a gift and not income when determining maintenance. There was no proof that the wife received any inheritance from her father. The support amount was then decided by the Court. When determining the 25% cap on the husband’s salary, deductions for income tax, the mandatory provident fund, and other costs associated with the husband’s professional car maintenance were allowed.

2. Mohd. Ahmed Khan v. Shah Bano Begum and Ors. (1985)

 

• Facts - In this case, Shah Bano Begum and Mohd. Ahmed Khan were wed in 1932, and the couple had five kids together. Mohd. Ahmed Khan married a younger woman for a second time after a few years of marriage. Shah Bano Begum and her kids were evicted from their matrimonial house in 1975. Initially promising to pay her Rs. 200 per month in maintenance, Mohd. Ahmed Khan stopped doing so in 1978. Shah Bano Begum responded by filing a petition in Indore under Section 125 of the Criminal Procedure Code (Cr.PC), asking for maintenance of Rs. 500 every month. Mohd. Ahmed Khan divorced Shah Bano Begum by saying triple talaq throughout the proceedings. She was given a Rs. 25 maintenance payment each month by the Indore Magistrate. In 1980, Shah Bano Begum filed a petition with the High Court of Madhya Pradesh asking for an increase in the maintenance payment to Rs. 179 per month. Although the Respondent, Mohd. Ahmed Khan, filed a special leave plea in the Supreme Court opposing the ruling after the High Court ruled in her favour.

 

• Issues - Whether Shah Bano Begum is entitled to maintenance from Mohd. Ahmed Khan after divorce? If personal law conflicts with Section 125 of the Cr.PC, which should take precedence? Whether the amount of maintenance awarded by the lower courts was reasonable?

 

 

• Judgment - The Supreme Court denied Mohd. Ahmed Khan’s request for a special leave of absence. The five-judge panel ruled that when personal law and Section 125 of the Criminal Procedure Code clash, the latter shall take precedence. The payment of maintenance to a divorced woman who cannot support herself, however, was not in dispute in the current case. The Court emphasised that it is against humanity to only provide maintenance during the Iddat period (the waiting time following a divorce) and not beyond that point. This is particularly true for a woman who is unable to support herself. It was decided that it was immoral and wrong for a husband to leave his wife or a divorced woman unsupported. The court further decided that a husband’s commitment to support his wife cannot be waived simply by paying the meher (dowry). If not, the husband’s duty to pay maintenance remains in effect. This proves to be the most important decision for maintenance provision in India.

 

Conclusion 

        Court rulings and other actions have restored the rights of women, but their full efficacy won’t be attained unless fundamental attitudes are changed. Despite the fact that maintenance should benefit both husbands and wives equally for the sake of society as a whole, many women continue to be denied their legal maintenance entitlements. To produce a noteworthy and fruitful result, it is essential to ensure that the law is implemented correctly and following the legal criteria.

References

[1] "Divorce". Sveriges Domstolar - Domstolsverket, Swedish National Courts    Administration. 2007-03-07. Retrieved 2008-09-29.

[2] "Divorce". LII / Legal Information Institute.

[3] Shayara Bano and others v. Union of India and others, Writ Petition (C) No. 118 of 2016.

[4] Rani Sethi v. Sunil Sethi, 179 (2011) DLT 414.

[5] https://www.freelaw.in/legalarticles/Alimony-in-Divorce:-Right-Of-Women 

[6] https://blog.ipleaders.in/all-you-need-to-know-about-divorce-alimony/

[7]https://www.lawyersclubindia.com/articles/concept-of-divorce-mediation-15919.asp#:~:text=Both%20parties%20and%20their%20representatives,reach%20a%20mutually%20acceptable%20compromise.

[8] Legal services of India - https://www.legalserviceindia.com/legal/article-3246-divorce-laws-in-india.html

[9] https://en.wikipedia.org/wiki/Divorce_law_by_country