Why Are Indian Divorce Laws Important?

A brief overview of Hindu divorce laws in Indians

Introduction

While the expression "till death do us part" gained popularity in the English-speaking world after the Book of Common Prayer was printed for the first time in England in 1549, this custom dates back thousands of years in ancient India. Hindus, then, believed that marriage was not a passing agreement to fulfil a transient bodily need or to enjoy pleasant companionship for a while before ending at the first sign of trouble. It is a lifelong commitment that endures many ups and downs only to become stronger and more stable. According to commentary on Hindu marriage, the Hindu institution of marriage typically does not know about divorce. A husband and wife are obligated to one another not just until death but also in the afterlife.

But in more recent times, a new expression has gained popularity, i.e., “until death (or divorce) do us part”. Divorce cases have dramatically increased over the globe. There has been a noticeable increase in the number of young Indian couples divorcing.

Factors contributing to Divorce

Though to a lesser extent, India is also experiencing some of the factors that contribute to the trends in divorce seen in other parts of Asia, such as increased female labour force participation, growing gender roles that are incompatible with women's status, shifting demographic contexts, and individualization. The stability of marriages in India has been impacted by a number of factors, including social standing, economic potential, individual autonomy, independence, and educational attainment.

Marriage and Divorce under the Indian Legal System

The Hindu Marriage Act applies to Buddhists, Jains and Sikhs as well. The Special Marriage Act allows two individuals from any or no religion to get married and divorced. 

Section 13 of the Hindu Marriage Act, 1955 lists the reasons for divorce under Hindu marriage law. Divorce is the official dissolution of a marriage by a competent court. This statute was amended in 1976 to include Section 13B, which established the concept of requesting a divorce with mutual consent.

Grounds for Divorce under Hindu Marriage Act, 1955 available to both parties

• Adultery:  One party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.

Cruelty: One party has, after the solemnization of the marriage, treated the petitioner with cruelty.

Desertion: One party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.

Conversion: One party has ceased to be a Hindu by conversion to another religion

Mental Disorder: One party-

• has been incurably of unsound mind, 
• or has been suffering continuously or intermittently from mental disorder of such a kind 
• and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Venereal Disease: One party is suffering from venereal disease in a communicable form

Renunciation: One party has renounced the world by entering any religious order

Unheard of: One party has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.

Divorce by mutual consent: It is possible for both parties to a marriage to request a divorce decree from the district court, regardless of when the Marriage Laws (Amendment) Act, 1976 (68 of 1976) went into effect. This request can be made on the grounds that the parties have lived apart for a year or longer, have found it difficult to cohabitate, and have mutually decided that the marriage should end.

Additional grounds given to wife: 

• Husband has been found guilty of rape, sodomy or bestiality
• Marriage was solemnized before the woman turned 15 and she repudiates the marriage before age 18. 

Previous Legislations and Subsequent Amendments

India has ratified a United Nations Resolution that advocates for the abolition of discrimination against individuals afflicted with leprosy. The Supreme Court had also ordered the central government and the state governments in 2014 to help those affected by leprosy to be reintegrated into society.

The Government of India notified the Personal Laws (Amendment) Act 2019, to remove leprosy as a ground for divorce. It amended five acts to do so: 

• The Divorce Act, 1869

• The Dissolution of Muslim Marriage Act, 1939

• The Special Marriage Act, 1954

• The Hindu Marriage Act, 1955

• The Hindu Adoptions and Maintenance Act, 1956

Irretrievable breakdown of marriage 

The Supreme court delivered a judgement in May 2023 where it stated that a court will need to consider certain circumstances before determining whether or not the marriage is irreparably damaged. Unlike other grounds for divorce, such as cruelty or adultery, the irretrievable breakdown of the marriage is not contingent on the occurrence of a specific event or action. The courts can now grant divorce on grounds of irretrievable breakdown of marriage. 

Conclusion

Hindu law views marriage as a sacrament. Divorces, however, appear to be trending in an upward trajectory. Both the husband and the wife may file for divorce on a number of grounds. There are other reasons that are exclusive to wives. This trend represents a growing economic capacity and changing attitudes in India, a country where divorce is stigmatised.