Introduction
Divorce is a challenging and emotional process that can take a toll on individuals and families. In India, the laws governing divorce have been evolving to keep pace with changing societal norms and to ensure a more streamlined and fair process for all parties involved.
As we look ahead to 2024, it's essential to understand the evolution of divorce laws in India through appropriate legislation and judicial activism.
Let’s check out some of the key changes that are now changing the whole landscape of Divorce laws in India:
1. Waiving the 6-Month Waiting Period: The Supreme Court, in a judgment passed by Justices Indira Banerjee and J. K. Maheshwari on December 11, 2021, stated that it has the power to make an exception to the 6-month waiting period usually required for divorce by mutual consent under Hindu law. In the case of Amit Kumar v. Suman Beniwal, the court said that under Article 142 of the Constitution, which allows the Supreme Court to pass any order necessary to do complete justice, it can waive the 6-month "cooling off" period on a case-by-case basis. Normally, under Section 13B of the Hindu Marriage Act, 1955, when a couple files for divorce by mutual consent, they have to wait for 6 months after the initial filing before the divorce can be finalized. This waiting period is meant to give the couple a chance to reconsider their decision. However, the Supreme Court has now clarified that it has the discretion to do away with this waiting period in appropriate cases to allow the divorce to be finalized sooner, using its special powers under Article 142 of the Constitution.
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2. Irretrievable Breakdown of Marriage: In a latest judgment passed on on May 6th 2024, The Supreme Court in JATINDER KUMAR SAPRA Vs. ANUPAMA SAPRA 2024 the Supreme Court invoked its special powers under Article 142(1) to grant divorce on the grounds of irretrievable breakdown of marriage, considering the long period of separation, the impossibility of reconciliation, and the fact that the children are now adults and independent.
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Following were the key observations:
a) After being prima facie satisfied that the case met certain parameters, requested Senior Counsel to assist in resolving the dispute and despite best efforts the parties were unwilling to reach an amicable settlement and there was no possibility of them residing together. Senior counsel submitted a note detailing his efforts, including discussions between the parties regarding the quantum of permanent alimony to be paid by the Appellant to the Respondent.
b) The Court observed that the undisputed facts reveal that the parties have been separated for 22 years, having last cohabited in January 2002. Their children are now majors and gainfully employed. Considering the totality of circumstances, the Court was satisfied that the marriage between the parties has irretrievably broken down and there is no possibility of them cohabiting in the future. The Court found that continuing the formal union was neither justified nor desirable. Without expressing any opinion on the merits of the allegations made by the parties against each other, the Supreme Court deemed it appropriate to exercise its discretion under Article 142(1) of the Constitution of India and passed a decree of divorce on the ground of irretrievable breakdown of marriage.
3. Maintenance for Live-In Partners: The Supreme Court of India has made several significant rulings in recent years that have affirmed the legal status and rights of individuals in live-in relationships.
In the groundbreaking case of S. Khushboo vs. Kanniammal & Anr. (April 28, 2010), the apex court held that live-in relationships and pre-marital sex are not illegal in India. The court emphasized that living together is a fundamental right under Article 21 of the Constitution, which guarantees the right to life and personal liberty. Furthermore, the Supreme Court has also upheld the property rights of women in live-in relationships. In the case of Dhannulal and Others vs. Ganeshram and Another (April 08, 2015), the court ruled that a woman has the right to inherit her deceased live-in partner's property, even if they were not legally married. The court based its decision on earlier precedents which held that if a couple has been cohabiting for a long time, their relationship is presumed to be a marriage in the eyes of the law. This principle was also affirmed in the case of Vidyadhari & Ors. vs. Sukhrana Bai & Ors. (January 22, 2008), where the Supreme Court held that a woman living with a man in a live-in relationship has the right to inherit her partner's property. These landmark judgments have helped to establish the legal recognition and protection of live-in relationships in India, ensuring that individuals in such relationships are not denied their fundamental rights and are treated on par with married couples in certain respects, particularly in matters of property inheritance.
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4. Adultery No Longer a Crime: In a significant decision in 2018, the Supreme Court of India decriminalized adultery, striking it off from the Indian Penal Code (IPC). The judgment was delivered by a five-judge Constitution Bench headed by the then Chief Justice of India, Dipak Misra, and included current CJI D. Y. Chandrachud and Justices A. M. Khanwilkar, R. F. Nariman, and Indu Malhotra. The case, Joseph Shine v. Union of India, began in 2017 when a non-resident Indian from Kerala filed a Public Interest Litigation (PIL) challenging the constitutional validity of the adultery law under Section 497 of the IPC and Section 198(2) of the Code of Criminal Procedure (CrPC). The law, as it stood, punished a man with up to five years of imprisonment for having sexual relations with another man's wife. However, the wife who consented to the act was exempt from prosecution. Moreover, the law did not apply to a married man who had sexual relations with an unmarried woman or a widow. Interestingly, only the husband of the adulterous wife could file a complaint under Section 198(2) of the CrPC.
The Supreme Court held that adultery should not be considered a criminal offense, although it remains a valid ground for divorce in civil law. The Court's decision was based on the principles of gender equality and personal liberty. In 2020, another five-judge Bench led by former CJI Sharad A Bobde dismissed petitions seeking a review of the verdict, stating that they lacked merit.
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5. Triple Talaq Banned: In a landmark decision on August 22, 2017, the Supreme Court of India declared the practice of Triple Talaq unconstitutional. Triple Talaq was a controversial practice that allowed Muslim men to divorce their wives instantly by saying the word "talaq" three times in quick succession. The ruling was made by a panel of five judges, with three of them agreeing that the practice violated the fundamental rights of Muslim women and was, therefore, unconstitutional, while the other two judges upheld its constitutionality. The Supreme Court emphasized that Triple Talaq gave husbands the power to end their marriages unilaterally and arbitrarily, without considering the wishes or rights of their wives. This practice, the court argued, went against the core principles of equality, dignity, and individual rights enshrined in the Indian Constitution. By allowing men to divorce their wives at their own whim, Triple Talaq undermined the notion of gender equality and violated the dignity of Muslim women. The court's decision was based on the belief that such a practice had no place in a modern, democratic society that values equal rights for all its citizens, regardless of gender. The ruling aimed to protect the rights of Muslim women and ensure that they are treated with the same respect and dignity as their male counterparts. This historic judgment marked a significant step towards gender equality and the empowerment of Muslim women in India.
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6. Civil Courts Override Personal Laws: The Supreme Court, in the case of Molly Joseph vs George Sebastian, firmly established that the dissolution of a marriage can only be carried out by a competent court. This means that any divorce granted by a religious institution, such as the Christian Church, or under any personal law, is not legally valid. In other words, even if a couple obtains a divorce through their religious or personal legal systems, it will not be recognized by the Indian legal system unless a Civil Court also grants the divorce. The order or decree issued by the Civil Court takes precedence and supersedes any order passed by a religious authority or personal law tribunal.
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The Latest Legislative Amendment “The Marriage Laws (amendment) Bill, 2013”.
Excerpts from the Marriage Laws (amendment) Bill, 2013
New sections are added 13C, 13D and 13E. Divorce on ground of irretrievable breakdown of marriage.
‘13C
(1) A petition for the dissolution of marriage by a decree of divorce may be
presented to the district court by either party to a marriage [whether solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 2013], on the ground that the marriage has broken down irretrievably.
(2) The court hearing a petition referred to in sub-section (1) shall not hold the
marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years immediately preceding the presentation of the petition.
(3) If the court is satisfied, on the evidence as to the fact mentioned in subsection (2), then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce.
(4) In considering, for the purpose of sub-section (2), whether the period forwhich the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months’ in all) during which the parties resumed living with each other, but no other period during which the parties lived with each other shall count as part of the period for which the parties to the marriage lived apart.
(5) For the purposes of sub-sections (2) and (4), a husband and wife shall be treated as living apart unless they are living with each other in the same household, and reference in this section to the parties to a marriage living with each other shall be construed as reference to their living with each other in the same household.
(c) children who, because of special condition of their physical or mental health, need looking after and do not have the financial resources to support themselves.
‘13F
(1) Without prejudice to any custom or usage or any other law for the time being in force, the court may, at the time of passing of the decree under section 13C on a petition made by the wife, order that the husband shall give for her and children as defined in section 13E, such compensation which shall include a share in his share of the immovable property (other than inherited or inheritable immovable property) and such amount by way of share in movable property, if any, towards the settlement of her claim, as the court may deem just and equitable, and while determining such compensation the court shall take into account the value of inherited or inheritable property of the husband. (2) Any order of settlement made by the court under sub-section (1) shall be secured, if necessary, by a charge on the immovable property of the husband.’.
In the Special Marriage Act, 1954 (hereafter in this Chapter referred to as the Special Marriage Act), in section 28, in sub-section (2), the following provisos shall be inserted,
Namely:-
‘‘Provided that on an application being made by both the parties, the court may reduce the period specified under this sub-section to a lesser period and the court may waive off the requirement for moving the motion by both the parties, if it is satisfied that the parties to the marriage are not in a position to reconcile their differences: Provided further that where one of the parties fails to appear before the court within a period of three years from the date of presentation of the petition under sub-section (1), the court may, on an application made by the other party, waive the requirement of moving the motion by both the parties.’’.
After section 28 of the Special Marriage Act, the following sections shall be inserted,
namely:—
‘28A.
(1) A petition for the dissolution of marriage by a decree of divorce may be presented to the district court by either party to a marriage [whether solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 2013] on the ground that the marriage has broken down irretrievably.
(2) The court hearing a petition referred to in sub-section (1) shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years immediately preceding the presentation of the petition.
(3) If the court is satisfied, on the evidence as to the fact mentioned in subsection(2), then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce.
(4) In considering, for the purpose of sub-section (2), whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months in all) during which the parties resumed living with each other, but no other period during which the parties lived with each other shall count as part of the period for which the parties to the marriage lived apart. (5) For the purposes of sub-sections (2) and (4), a husband and wife shall be treated as living apart unless they are living with each other in the same household, and reference in this section to the parties to a marriage living with each other shall be construed as reference to their living with each other in the same household.
‘28B
(1) Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 28A, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would, in all the circumstances, be wrong to dissolve the marriage.
(2) Where the grant of a decree is opposed by virtue of this section, then,—
(a) if the court finds that the petitioner is entitled to rely on the ground set out in section 28A; and (b) if, apart from this section, the court would grant a decree on the petition, the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if, the court is of the opinion that the dissolution of the marriage shall result in grave financial hardship to the respondent and that it would, in all the circumstances, be wrong to dissolve the marriage, it shall dismiss the petition, or in an appropriate case stay the proceedings until arrangements have been made to its satisfaction to eliminate the hardship.
‘28C.
The court shall not pass a decree of divorce under section 28A unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.
Explanation.— In this section, the expression “children” means—
(a) minor children including adopted children;
(b) unmarried or widowed daughters who have not the financial resources to support themselves; and
(c) children who, because of special condition of their physical or mental health, need looking after and do not have the financial resources to support themselves.
‘28D
(1) Without prejudice to any custom or usage or any other law for the time being in force, the court may, at the time of passing of the decree under section 28A on a petition made by the wife, order that the husband shall give for her and children as defined in section 28C, such compensation which shall include a share in his share of the immovable property (other than inherited or inheritable immovable property) and such amount by way of share in movable property, if any, towards the settlement of her claim, as the court may deem just and equitable, and while determining such compensation the court shall take into account the value of inherited or inheritable property of the husband.
(2) Any order of settlement made by the court under sub-section (1) shall be secured, if necessary, by a charge on the immovable property of the husband.'
The bill introduces significant changes to the existing divorce laws in India, making the process more streamlined while also providing safeguards for the financial interests of the wife and children involved. The document is titled "The Marriage Laws (Amendment) Bill, 2013" and was passed by the Rajya Sabha on August 26, 2013. The bill aims to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
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Key points of the bill:
1. It allows the court to reduce the waiting period for divorce by mutual consent from the current six months, and waive the requirement for both parties to move the motion if they are unable to reconcile their differences.
2. It introduces the concept of "irretrievable breakdown of marriage" as a ground for divorce. If the parties have lived apart for a continuous period of at least three years, the court may grant a divorce on this ground.
3. The bill provides safeguards for the wife, allowing her to oppose the divorce petition on the grounds that it would cause grave financial hardship. The court must consider all circumstances before granting the divorce in such cases.
4. The court must ensure that adequate provisions are made for the maintenance of children born out of the marriage before granting a divorce.
5. The wife may be entitled to a share in the husband's immovable property (other than inherited or inheritable property) and movable property as compensation during the divorce proceedings.
Why it is a important to take Legal Advice on Divorce matters
a) When facing the life-altering decision of divorce, it is imperative to seek the guidance of a qualified legal professional. The intricacies of the divorce process, including property division, alimony, child custody, and support, can be overwhelming and emotionally taxing. Without proper legal counsel, you may find yourself at a significant disadvantage, leading to unfavorable outcomes that can have long-lasting consequences on your financial stability and personal well-being.
b) An experienced divorce lawyer is an invaluable asset during this challenging time. They possess the knowledge and expertise to guide you through the legal labyrinth, ensuring that you fully understand your rights and obligations. With their deep understanding of local court systems, judges, and precedents, a skilled attorney can provide you with a realistic assessment of your case and help you set achievable goals.
c) Moreover, a divorce lawyer can serve as a powerful advocate and negotiator on your behalf. They can engage in constructive discussions with your spouse or their legal representative, working towards a fair and equitable settlement that safeguards your interests. In the event that negotiations break down, your lawyer will be prepared to vigorously argue your case in court, presenting compelling evidence and arguments to support your position.
d) Investing in legal advice during a divorce is not just a matter of protecting your rights; it is also a means of preserving your emotional well-being. By entrusting your case to a knowledgeable attorney, you can alleviate the burden of navigating the legal system alone, allowing you to focus on healing and building a new chapter in your life.
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Conclusion:
seeking legal advice on divorce matters is a critical step in ensuring that your voice is heard, your rights are protected, and your future is secure. Do not leave the outcome of your divorce to chance; arm yourself with the power of legal expertise and take control of your destiny.
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