Divorce and threat to institution of marriage in India: Socio-Legal study

RESEARCH ASSIGNMENT

Divorce and threat to institution of

marriage in India: Socio-Legal study

Submitted To: Submitted By:

Mr. Rajeev Mahashwaram Animesh Kumar

Dy. Director Student- B.A.LL.B. (H)

Institute of Judicial Training and Research (U.P.) Amity Law School, Lucknow

Divorce and threat to institution of marriage in India: Socio-Legal study

Institute of Judicial Training & Research, U.P. | [Animesh Kumar, Amity Law School, Lucknow]

PREFACE

This assignment take cares of the topic ‘DIVORCE’. Its social-legal

perspective is covered. Different aspects of human life have been

included. The changing profile and new laws which are required have

been given extra emphasis.

I am sure my effort would these inclusions and will keep on guiding

me as faculty have done earlier.

I am extremely thankful to Mr. Rajeev Maheshwaram Sir for the extra

time given to me for preparation of this assignment. I took too much

time to complete the given task.

Animesh Kumar



ACKNOWLEDGMENT

This assignment is intended to cover the socio-legal aspect of Divorce

and threat to institution of marriage. Basic and pre-requisite

information have been included.

I acknowledge the inspiration and blessing of my Parents and my

elder brother Ravindra Kumar Dwivedi.

I am full of gratitude to my seniors Pratik Mishra, Abhash Sharma,

Swastik Viswakarma and Mayank Dubey for the patience shown and

encouragement given to complete this assignment.

My heartful thanks are due to my friends Priyesh, Krisnath and

Avinash for providing relevant resources.

In the last but not the least, my sense of gratitude is due to AMITY

LAW SCHOOL, LUCKNOW.

Every effort has been made to avoid errors and mistakes; however

their presence cannot be ruled out.

Animesh Kumar



INDEX

1. Introduction……………………………………………………………1

a. No fault theory of Divorce…………………………………………..3

2. Marital Discord and Divorce in India: The Changing Profile…….10

a. Higher Incidence of Divorce……………………………………....11

b. Divorce by Mutual Consent……………………………………….14

c. Adjustment and Understanding………………………………...…17

3 Misuse of Anti-dowry laws in marital disputes…………………….19

4 Conclusion

a. Laws In India……………………………………………………….26

b. A Changing India…………………………………………………..27


1 Institute of Judicial Training & Research, U.P. | [Animesh Kumar, Amity Law School, Lucknow]

Introduction

While we talk about marriages and its significance in the life, it‘s important that

we also discuss the intricacies of the separation as it‘s a right provided to all

men and women on different grounds to the separate if the marriage is not

considered happy. Though it is still look upon as a social evil, the law permits a

couple to separate ways on mutual grounds. Also Indian women have their own

rights to file for a divorce if not treated well. Even though we observe that

women are ill treated in our country in rural as well as urban areas of India; a

very small percentage of women who initiate for separation. But more and more

social activists and social agencies are creating awareness about the laws and

rights available to women as well as men. While this is one side of the tale,

there are also cases where the law is twisted and turned and misused by both

men and women. However, we must discuss the other side of the heavenly knot.

Divorce is the ‗dissolution of a valid marriage in law‘, in a way other than the

death of one of the spouses, so that the parties are free to remarry either

immediately or after a certain period of time. The Concept of divorce was

introduced in India in the latter part of the 19th century among two classes of

Christians. It was introduced for Hindus in 1955 in the form of the Hindu

Marriage Act 1955. Before the commencement of the Hindu Marriage Act

1955, there were Acts in some of the States providing for divorce in certain

circumstances, viz., the Bombay Hindu Divorce Act (22 of 1947), the Madras

Hindu (Bigamy, Prevention and Divorce) Act (6 of 1949), and the

Saurashtra Hindu Divorce Act (30 of 1952). These Acts were repealed by

Section 30 of the Hindu Marriage Act 1955. Under the Hindu Marriage Act

1955, initially, adultery, cruelty, and desertion were not made grounds of

divorce but of judicial separation. These grounds were based on the fault theory



of divorce. At present, ‗Divorce‘ is governed by different Acts1 among different

communities in India.

All major religions have their own laws which govern divorces within their own

community, and separate regulations exist regarding divorce in interfaith

marriages. Hindus, including Buddhists, Sikhs and Jains, are governed 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. Civil marriages and inter-

community marriages and divorces are governed by the Special Marriage Act,

19562. Section 13 of the Hindu Marriage Act 1955 has undergone many

changes through amendments. Section 13 (1-A) was introduced in the present

Act by the Hindu Marriage (Amendment) Act (44 of 1964). The amendments of

1976 in the Hindu Marriage Act 1955 have made these three grounds as

grounds of divorce as well as of judicial separation and also added Section 13-

B, providing for divorce by mutual consent. The other grounds of divorce are

virulent leprosy, incurable and continuous insanity, venereal diseases,

conversion to another religion, renunciation of world by entering a holy order or

sect and when whereabouts are unknown for a period of seven years or more.

By the Marriage Laws (Amendment) Act (68 of 1976), the words ―is living in

adultery‖ stated in Section 13 (1) (i) were substituted by the words ―has after

solemnization of the marriage had voluntary sexual intercourse with any person

other than his or her spouse‖.

1 Section 13 of the Hindu Marriage Act 1955; Section 27 of the Special Marriage Act 1954;

Section 32 of the Parsi Marriage and Divorce Act 1936; Section 10 of the Divorce Act 1869 and

Section 2 of the Dissolution of Muslim Marriage Act 1939.

2 (Kapur and Cossman 101)



No fault theory of Divorce

The institution of marriage being distinct as regards its socio-economic and

legal footings, it will be unjust if the law ignores the importance attached to it.

But at the same time it is the choice of the parties to a valid marriage to

understand the importance of the institution and to preserve its sanctity. With

the changing requirements, attitude and aptitude, the society has drastically

Changed and it is very difficult for the married couples to cope with change.

While adjusting in a new atmosphere in the matrimonial home, spouses may

commit, knowingly or unknowingly, with or without intention, whether

economical dependent or independent, some kind of mistakes which lead to a

communication gap between them and create havoc in the matrimonial home.

Sometimes no party is willingly ready to hurt another one but circumstances

beyond control create unhealthy atmosphere in the matrimonial home. It is

difficult to say which party is at fault but matrimonial relationship loses its

sweetness and its sanctity. At the same time it is more difficult to find out

bitterness between the parties if they are well educated, working and

economically independent because each individual has his own style of living.

Where both the parties of a valid marriage are at fault of any kind of

matrimonial offence, it is difficult to prove which one is an aggrieved party.

According to the Doctrine of Recrimination, no remedy can be granted to the

party who is at fault. It is imperative in law to have one party as innocent and

another at fault to provide a matrimonial relief. A person who seeks

matrimonial remedy must come to the Court with clean hands. For example, if

in a petition for divorce on the ground of respondent‘s adultery, it is found the

petitioner is also guilty of adultery, then the petition will not be granted divorce

even though there is no co-relationship between the two adulteries. English law



abandoned this position in later law and changed the matrimonial laws as per

the need and requirements of the time.

In case of no fault theory of divorce, it is not necessary to prove which party is

at fault. There may be many reasons based on which sweetness of matrimonial

relationship is at risk. If the parties prove with reliable evidence on record that

their marriage is beyond all possible repairs then law should understand the

reality of the facts and should help the parties to the marriage which has broken

down irretrievably. The Law Commission of India in its 71st Report on ―the

Hindu Marriage Act 1955 - Irretrievable Breakdown of Marriage as a Ground of

Divorce‖ had suggested that the theoretical basis for introducing irretrievable

breakdown as a ground of divorce is one with which, by now, lawyers and

others have become familiar. Restricting the ground of divorce to a particular

offence or matrimonial disability, it is urged, causes injustice in those cases

where the situation is such that although none of the parties is at fault, or the

fault is of such a nature that the parties to the marriage do not want to divulge it,

yet there has arisen a situation in which the marriage cannot be worked. The

marriage has all the external appearances of marriage, but none of the reality.

As is often put pithily, the marriage is merely a shell out of which the substance

is gone. In such circumstances, it is stated, there is hardly any utility in

maintaining the marriage as a façade, when the emotional and other bounds

which are the essence of a marriage have disappeared. The breakdown theory of

divorce which is inherently attached with no fault theory of divorce represents

the modern view of divorce. Under this theory, the law realises a situation and

says to the unhappy couple: if you can satisfy the Court that your marriage has

broken down, and that you desire to terminate a situation that has become

intolerable, then your marriage shall be dissolved, whatever may be the cause.

The marriage can be said to be broken when the objects of the marriage cannot



be fulfilled. When there is not an iota of hope that parties can be reconciled, it

can be considered as irretrievable breakdown of marriage.3 Another logic why

this theory holds is that after the marriage has ceased to exist in substance and

in reality, there is no reason for denying divorce. Divorce should be seen as a

solution and an escape route out of a difficult situation. Such divorce is

unconcerned with the wrongs of the past, but is concerned with bringing the

parties and the children to terms with the new situation and developments by

working out the most satisfactory basis upon which they may regulate their

relationship in the changed circumstances. In fact, the intention of the

Parliament to introduce the concept of breakdown into the Hindu Marriage Act

1955 is evident from the statement of objects and reasons of the Amendment

Bill, which reads as follows:

The rights to apply for divorce on the ground that cohabitation has not been

resumed for a space of two years or more after the passing of a decree for

judicial separation, or on the ground that conjugal life has not been restored

after the expiry of two years or more from the date of decree for restitution of

conjugal rights should be available to both the husband and the wife, as in such

cases it is clear that the marriage has proved a complete failure. There is,

therefore, no justification for making the right available only to the party who

has obtained the decree.4 In Madhukar v. Saral

5, the Bombay High Court held

that the enactment of Section 13 (1-A) in 1964 is a legislative recognition of the

principle that in the interest of society, if there has been a breakdown of the

marriage, there is no purpose in keeping the parties tied down to each other. In

3 Kusum, “Irretrievable Breakdown of Marriage: A Ground for Divorce”, 20 JILI (1978), p. 291.

4 Vide Gazette of India, Extraordinary, Part II, S. 2, p. 86.

5 AIR 1973 Bom. 55-57.



Abu Baker Haji v. Manu Koya,6 the Kerala High Court held that trivial

differences get dissolved in course of time and may be treated as teething

troubles of early matrimonial adjustment. The stream of life lived in married

mutuality washes away smaller pebbles but that is not the case when the

incapability of minds breaks up the flow of stream. In such circumstances the

breakdown of marriage is evident so we recognize that fact and accord divorce.7

The Delhi High Court also observed in Ram Kali v. Gopal Das8 that it would

not be a practical and realistic approach, indeed it would be unreasonable and

inhuman to compel, the parties to keep up the face of marriage even though the

rift between them is completed and there are no prospects of their ever living

together as husband and wife.

The Law Commission of India in its 71st Report on ‗Reform of the Grounds of

Divorce‘ said that objectives of any good divorce law are twofold: ―One, to

buttress, rather than undermine, the stability of marriage, and two, when

regrettably, a marriage has irretrievably broken down, to enable the empty shell

to be destroyed with the maximum fairness, and the minimum bitterness,

distress and humiliation‖.9 If a marriage has broken down beyond all

possibilities of repair, then it should be brought to an end, without looking into

the causes of breakdown and without fixing any responsibility on either party.

In contemporary society, the breakdown of marriage theory is recognised by the

laws of many countries and a trend towards this theory becomes discernable

through two methods: (1) by enlarging the number of grounds based on the fault

theory; and (2) by giving the widest possible interpretation to the traditional

fault grounds. Cruelty has proved to be the most fertile ground. In Gollins v.

6 AIR 1971 ILR 338 (Ker.).

7 Aboobacker v. Mam 1997 KLT, 66 as quoted in Paras Diwan, Hindu Law, 2nd ed. 2002, p. 565.

8 (1971) ILR 1 Del. 6.

9 71st Report of the Law Commission of India, para 15.



Gollins,10

the husband‘s failure to take up a job, his inability to maintain his

wife and his dependence on his wife to pay off his pressing debts was held to be

a conduct amounting to cruelty. In Williams v. Williams,11

husband‘s persistent

accusations of adultery against the wife were considered amounting to cruelty,

despite the fact that the husband was found to be insane. In Masarati v.

Masarati12

, the Court of Appeal held that ―today we are perhaps faced with a

new situation as regards the weight to be attached to one particular factor that is

the breakdown of marriage‖. In the Mortimer Committee‘s report the

breakdown of marriage is defined as: ―such failure in the matrimonial

relationship or such circumstances adverse to that relation that no reasonable

probability remains for the spouses again living together as husband and wife.13

It‘s the 21st century, the year of 2007 and 21 year olds are no longer expected to

‗settle down‘.

―The age for marriage in India is slowly edging towards the late twenties. And

why not,‖ Roshini, a 23 year old software professional says. ―Women today, are

increasingly giving priority to their ambitions, instead of getting crushed in the

dichotomy of marriage and career. They are red-hot and refuse to be the sole

compromiser in the relationship‖.

The traditional role of the man being a breadwinner and the woman being the

caretaker of the household is totally non-existent. A vast majority of young

couples are striving to attain that coveted balance in their marriages and that

work-gender division has vanished. Previously, when the woman earned more

than a man, or was academically more qualified, it was considered as a major

hindrance in the relationship. This difference in qualifications in 21stcentury

10

[1963] 3 All ER 966: [1964] AC 644.

11 [1963] 2 AII ER 994.

12 [1969] 1 WLR 392.

13 Paras Diwan, Modern Hindu Law, 17th ed. 2006, pp. 68-77.



marriages is not considered as a deterrent to the relation. Nevertheless, it hasn‘t

completely disappeared from our social mindset. ―An ‗I‘ and a ‗you‘ form a

‗we‘. But if the ‗I‘ is not ready for commitment or has other priorities, why

unnecessarily force him/her to form a ‗we‘? Man! People should get into a

marital relationship only after they sort themselves out‖, opines Kanishka, a 21

year old collegian.

Its fantastic how two biologically, mentally, genetically different human beings,

can unite in a bond and vow to stay united for their entire lifetimes, among a

billion other human beings! ‗Generation X‘ seems to be imbibing the concept

that a marriage is the union of 2 minds, rather than caste, religion, creed, or

although still socially unacceptable, but nevertheless existent, genders! With the

dominance of nuclear families in cities, it is very normal to hear a girl say, ―I

am marrying you, not your family!‖, if she is asked to ‗compromise‘ and put up

with her in-laws‘ demands.

Gone are the days, when infidelity sent shock waves in the entire

neighbourhood and caused major disequilibria. Although unacceptable, it

doesn‘t break marriages today. The emergence of more reliable matrimonies

and professional match-making centres has diluted the role of that

neighbourhood aunty. The focus is more on how compatible 2 people are with

each other, rather than how compatible the society judges them to be.

Mrs.Sajani Bhat, a marital counsellor, puts things into perspective, ―It isn‘t that

the society is becoming immoral or that the sanctity of marriage is getting

diluted. It‘s just that with the evolving world, values are changing. Nowadays, it

isn‘t expected of woman to grin and bear the injustices done to her. People

don‘t stay together only for the sake of their children. Instead, choices are being

made and lives are being separated if 2 people find each other incompatible

after a certain time period.‖



Disappointingly, the mindset of the masses, urban or rural, seems stagnated. A

recent survey conducted by the Times of India reveals that, in spite of the

changing culture almost 50% of Indian men prefer virgin brides as they consider

non-virgins to be ‗second-hand‘ material. However, certain sections of society

consider pre-marital sex acceptable and are gradually opening up to the concept

of live-in relationships. This trend is very evident in metro cities.

Marriage, which is a serious decision, is taken after careful thought and

understanding of the partner, both by the couple and by their families. As long

as there are humans, there will be a union of souls and of minds. The concept of

marriage in India is never going to lose its sanctity due to our culture, how

much ever the West influences us. However, there are those young wisecracks,

which follow their own untraded path and keep us guessing. For instance, this

21 year old youngster completely overthrew my analysis with the following

statement, ―Marriage is an institution and who wants to spend their life in an

institution?‖

In recent years more and more married couples in India are walking away from

their marriages. Court figures and data from crime record bureau reveal that

over the past decade, divorce rates have doubled and in some cities even

trebled. This trend is evident not just in metropolises but in smaller cities and

semi-urban areas as well. It is a reflection of India's changing socio-economic

landscape where this phenomenon is not restricted to the affluent, urban

populace as it used to be in 1980s.Figures suggest that more people from middle

class and lower middle class are opting out of unhappy alliances.

Delhi leads the way registering about 9,000 cases every year, a huge increase

from the average 1,000 cases that were registered in the 90s.Kolkata and

Chennai have also recorded a rise of 200 % in divorce rates. Kerala has seen a

quantum leap of 350%.Punjab and Haryana have seen an increase of 150% in

divorce cases.



Incompatibility and adultery are among the most cited reasons by those filing

for divorce, a substantive number of young couples. A combination of factors -

nuclear family structure, professional ambitions, mismatched expectations and

modern life styles is contributing to the increase in the number of couples that

decide to part their ways. Youth today do not subscribe to the rigid notions of

the sanctity of marriage as an institution.

A significant upshot is that more women are filing petitions for dissolution of

marriage something that was unheard of in the 70s and 80s.Women have

always had the legal option to walk out of abusive or unhappy marriages in

India. But mere legal sanction means little where life is governed by

patriarchal social mores. However while women are becoming empowered to

take charge of their lives even now only women who are economically

independent and have the backing of their families can afford to exercise the

divorce option.

Divorce can have negative impact on families especially children who bear the

brunt of failed marriages. The problem confronts people all over the world and

there is no solution which can make everybody happy. It is a reality that calls

for us as individuals and as a society to make adjustments to our ideas and

expectations of marriage. There is need to have strong support system for

people who decide to go for divorce.

Marital Discord and Divorce in India: The Changing Profile

Family is the most important primary group in society. Family and marriage are

considered to be the two pillars of any society and as such they are the two most

important societal institutions. In India, traditionally and from time immemorial,

marriage has been hallowed as sacred; and marriage for most Indians is not

merely a sacrament but is sacrosanct. Once the couple enters into the bond of

marriage, the relationship is considered perpetual—till death does them apart. In



other words, marriage used to be for life and it worked as a bulwark against

social vulnerabilities. It had an inbuilt system of checks and balances, and roles

and priorities were defined by the society for the couple. What distinguished

marriage in India from marriage in the West was the sanctity attached to

marriage: a sense of perpetual bonding and an element of divinity in it.

The phenomenon of divorce, however, is not new to India, and it has existed at

all times in known history. But it was resorted to only in extreme cases where

there was unbearable cruelty, desertion, mental illness, impotence/infertility,

and infidelity. But it is no longer so.

With the new strains and challenges that have emerged for the Indian family,

the latter has been going through a new kind of transition. It has been wavering

between traditional and Western models. The fast-changing social and family

environment has thrown up new challenges, particularly to the young people,

like growing instability, lack of communication, changing attitude towards sex,

changing roles of husband and wife, and tensions of fast life. All these have

resulted in the lack of harmony among married couples. The decline in harmony

can be associated with values that emphasise individualistic, materialistic and

self-oriented goals over family well-being.

Higher Incidence of Divorce

Not only is the incidence of divorce in Indian society increasing but also the

underlying causes of divorce have been assuming a new dimension or getting a

new impetus, if not entirely changing. The underlying forces of change have

been giving a new meaning to the causes of disharmony. It is not that conflict,

for example, due to incompatible personalities did not exist earlier, but the fact

is that it has become more vibrant and open. Factors such as incompatibility of

personalities etc. have all existed in the past, but what is new is that the



tolerance threshold seems to have sided down while the egos of individuals

have risen remarkably.

An extensive study of the working of family courts in urban India by a Mumbai-

based legal activist indicated that whereas in 1995, 2055 couples filed for

divorce in Mumbai, in 2004, the number went up to 3400 in that city alone. In

the eight matrimonial district courts of Delhi, an average of 25 divorce petitions

was filed every day in 2004. In Bangalore the number increased threefold from

653 in 1988 to 1861 in 2002. In Kolkata the number has gone up from 1633 in

1966 to 2388 in 2003. Seventy per cent of these figures represent divorces in the

age-group of 25-35. In Kolkata, divorce cases have gone up nearly 200 per cent

in the last few years14

.

According to a consultant psychiatrist of Kolkata‘s Belle Vue Nursing Home,

nearly six out of ten married couples now require counselling to prevent break-

ups and for every five weddings registered in Mumbai in the past five years,

there have been two divorce applications—an increase of nearly 50 percent15

.

A very recent report points out that of the 1.3 lakh marriages registered every

year in Delhi, about 10,000 do not live happily ever after. Alarmed by this, the

Delhi Commission for Women (DCW) has set up a pre-marital counselling cell

where young men and women and their parents can call for help and guidance16

.

Because of increasing number of young couples resorting to divorce, six more

family courts have come up in Delhi since the late nineties to deal with over

9000 cases of matrimonial disputes.

14

India Today, February 28, 2005 15

Hindustan Times, February 17, 2008 16

Hindustan Times, July 29, 2008



An extensive study of 243 individual respondents, directly involved in disputes

and who had approached some external formal agency17

for intervention,

mediation or help, revealed that the main causes of marital discord (male and

female taken together and in descending order) were (Jamwal, 1998):

Overall, the three prominent main causes (with 20 per cent or more incidence),

which contributed to marital discord, were personality related

behaviours/tendencies including deficiencies/disorders (24 per cent),

material/monetary gains through marriage (23 per cent), and incompatibility (21

per cent).

A comparison of the data regarding marital discord between male and female

respondents, as per the above study, brought out the following four main

distinctive features:

1. While as many as 46 per cent of the male respondents attributed the main

cause of their marital discord to ‗incompatibility‘ factors, far fewer, that is, 11

per cent female respondents attributed the main cause to such factors.

2. For as many as one-third of female respondents, the main cause of marital

problem was ‗material/monetary gains through marriage (mainly dowry)‘.

3. Personality related behaviours/tendencies (including deficiencies/disorders)

were reported more by female respondents than by male respondents (27 per

cent Vs. 19 per cent).

4. More female than male respondents reported ‗desertion‘ as the main cause

(13 per cent Vs. three per cent).

17

Marital Dispute Resolving Agency (MDRA)



In a study of 1165 cases from four urban cities—Mumbai, Pune, Aurangabad

and Nagpur—concerned with the reasons for divorce, the researchers found that

most couples seeking divorce were educated, between 25 and 35 years of age,

and childless. Though they had arranged marriages and lived in joint families,

seventy per cent break-ups took place due to reasons which included

temperamental differences (apart from financial issues, family interference,

dowry, and adultery). Eighty-five per cent called off their marriage within the

first five years. (Desai and Bhujbal, 2004)

In the present scenario what is new is not only the growing number of divorces

but also a qualitative difference in the undercurrents of the causes leading to

marital discord and divorce. The social/societal stigma attached to divorce is

also diminishing. Divorce is no longer a dirty word. A kind of social

transformation that may lie at the crux of today‘s marriage splits is the growing

tolerance of society for divorcees. Divorced people are no longer looked down

and judged by ―there-must-have-been-something-wrong-with-him/her‖ kind of

comments. They do not now have horns on their heads.

Divorce by Mutual Consent

More young people are filing for divorce, some in the first year of their

marriage. Most of these divorces are mutual consent petitions. According to one

estimate, the amicable separation within the first year of marriage has increased

by 30 per cent since 2000. Contrary to what prevailed earlier, more women are

initiating divorce proceedings. The society seems to be accepting the fact that

divorcees need companionship. An increasing number of women are now

hoping to click with someone online. For example, as reported seven per cent of



all registered women on jeevansathi.com are divorcees, as against four per cent

of all male users18

.

Divorce is no longer a taboo and a divorced daughter is not unwelcome in her

parents‘ home even in small towns. Social trends originating in metros slowly

percolate down to smaller towns and from there to villages. In the new socio-

economic environment, women in small towns do not feel shy of walking out of

marriage.

In the present environment two main causes/reasons stand out:

• Assertion of independence; and the

• Diminishing urge/capacity for adjustment.

These two factors, though different, are not unrelated to each other.

Assertion of freedom and the need for individual space, characterised by

ambition and the fast pace of life; have created new pressures on marriage. For

many career-oriented girls, their career, success and money are more important

and hence get more priority over family. Priority of job over relationship is now

an observable phenomenon. One partner likes films, the other the theatre; one

wants to dance at night and get up late in the morning, the other wants to study

and get up early in the morning. The words like ―I hate you‖ and ―I can‘t stand

you‖ have become commonplace. ‗Me‘ and ‗you‘ are now replacing ‗we‘ and

‗us‘. Psychological tiredness is one of the new realities, not much known

earlier.

Many of the young divorces are the result of violent ego clashes. In many ways,

these are the stresses of changing times and are generational issues and arise

18

Hindustan Times, February 17, 2008



from work stress and changing mores. Unfortunately, however, the issues at

dispute sometimes are so trivial that they do not fall in the age-old but still

common factors like dowry harassment, impotence and the mother-in-law

factor. Sixty per cent divorce cases, according to one Allahabad-based family

court lawyer, relate to trivial issues. Today‘s Indian wife has a mind of her own

which unsettles the patriarchal male. For instance, it is interesting to note that a

seven-year-old love marriage, in Darjeeling, went on the rocks because the man

and his wife had different political affiliations. Obviously, the intolerance for

each other is soaring and the tolerance threshold is declining.

Job opportunities for women have multiplied over the recent past, giving them

economic independence. This motivates them to choose out of a bad marriage,

particularly when they have no kids. Because of the opportunities the present-

day work environment provides to the young people for closer interaction at the

workplace and liberal views of the new generation, extra-marital relationships,

including sexual relationship, have become a common malaise over the recent

past, especially if there is a context of a failed/failing marriage. It is a well-

known fact that, with modern methods of contraception available, many a

couple delays starting a family. In a way, these are the compulsions of modern

times.

As many of the female spouses today are well educated and employed on good

jobs, they have become quite conscious of their rights. They also expect

cooperation and adjustment from their husbands. While women have tended to

become assertive, many of the males, on their part, have not learnt to adapt to

the new situation. Our society is in transition, in a state of flux. While old values

are getting uprooted, the new value system has not got sufficiently entrenched.

The frequent ego clashes may be the consequence of this fluid situation.



With the elderly sane counsel or intervention of the joint family system, which

earlier used to ensure the stability of the young couple‘s marriage being largely

not available or absent today, small differences get magnified in the nuclear

family of today? While the level of intolerance has gone up, there is a

diminishing urge/capacity for adjustment. Earlier, unlikable personality traits,

which got to be known after marriage and which led to sulks or temporary

suspension of intimacy, are now resulting in divorce.

The assertion of independence and diminishing capacity for adjustment quickly

gives rise to the emergence of a feeling of incompatibility. The couple are

tempted to conclude that they are incompatible to each other. The so-called

temperamental differences get highlighted.

Adjustment and Understanding

Though, in general, incompatibility may arise from a number of factors such as:

differences in values and beliefs; differences in educational, socio-economic

status/level; differences in life style/social orientation; differences in personality

characteristics, including temperament differences, differences in sexual

behaviours; and differences in likes, dislikes, tastes, hobbies etc., however, it

may be noted that no two persons can be totally compatible in temperament and

behaviour, even siblings may not be. In marriage two individuals with often-

different backgrounds come together. The thinking, attitudes, mindsets and

behavioural patterns cannot be expected to be similar or exactly matching. It

naturally takes some time to know and understand each other. The

understanding, resulting in compatibility in marriage, can thus develop only

gradually and, further, if there is a desire to adjust with each other.

The essence of success in marriage ―understands‖ which also means

understanding of each other‘s compulsions. Adjustment requires not only the



merging or submerging of two personalities, but closer interaction to

complement each other for mutual satisfaction and the achievement of common

objectives. Conceptually, the two main elements of marital adjustment are

cohesion and affection. This is not to say that there would always be perfect

adjustment. Since marriage involves two persons, perfect adjustment is a myth.

Some differences at times may take place or are inevitable. Perceptions about

life, its problems and solutions are individualistic and vary from person to

person. Speaking even about religion, Dr Radhakrishnan once said: ―Religion is

behaviour, not mere belief.‖

From the practical standpoint, the concept of adjustment between husband and

wife is not that of assimilating the one into the other but of togetherness and

simultaneity in behaviour with the greatest possible level of feeling for each

other. Marital cohesiveness is the glue that holds partners together. The other

side of cohesiveness is marital commitment, that is, the desire to stay in the

marriage relationship through thick and thin, good times and bad times over the

years of marital life. Commitment springs from emotional bonding and the

belief about the permanence of marriage per se. The greatest chance of divorce

is where partners feel a lack of cohesiveness and are not committed to making

the marriage last, despite personal dedications. (Jamwal, 1998, 232)

All said and done, however, despite the new strains on the marriage and the

increasing number of divorces being filed or taking place, the faith in the

universality of marriage as an institution remains unshaken in our society and

will continue to be so in the foreseeable future. The survival of the family unit,

in a large measure, is dependent on the ability of the family to absorb and adapt

to the external challenges. And it should be explored how this adaptability or

capacity to absorb the likely strains can be fortified in society.



Misuse of Anti-dowry laws in marital disputes

Marriages in India are supposed to be very sacred and considered to be once in

lifetime affair. The marriage occasion is an integral part of social traditions and

rituals in which both side family members get involved very emotionally and

their community members participate to give blessings for the happy married

life. But very recently, increasing number of married couples are experiencing

distress and incompatibilities. Due to various socio-economic factors, there is a

rapid rise in the discontent marriages in India as a result of which, the rate of

Divorces and Separations have gone up. By this unpredictable social disaster,

the family courts and other courts, police administration and various Counseling

Cells are feeling helpless due to sudden bombardment of matrimonial problem

related cases.

It has become a custom in India that a lot of social and legal concerns are

expressed for wives in cases of matrimonial disputes, but husbands and their

family members are ignored. It turns more fatal to the husband and his entire

family when the trivial marriage disputes are given shape of the cruelty to wife

due to dowry demands by false intentions of a promiscuous wife. The facts of

the matter may be totally different, which are intentionally distorted to gain

benefit from women-favored laws of India. There are stringent laws made in

favor of women, which are normally misused against those husbands and their

parents who don‘t agree to their wives' demands. So it adversely impacts the

entire family, and rightly proves that the moment of marriage in Indian society

is that important decision of life, which can extremely change the lives of not

only husband and wife but also the lives of parents. In fact a true harassment

case is actually an exception to this rule. As a man is physically stronger while

it is claimed by women that women are mentally stronger, hence it‘s protecting

men from mental violence while protecting women from physical violence.

Indian Social & Legal Systems take for granted the notion that in marital



dispute and domestic violence cases, the husband, his relatives and friends

usually harass his wife for demanding dowry, and ignore the instances when the

wife and her relatives falsely accuse and harass the husband and his relatives by

putting various false and baseless allegations pertaining to stringent provisions

of Anti-Dowry law. It is to misuse the laws for sympathy, extortion and

blackmailing. There are special women-favoured laws that provide for women

who claim to be harassed but not for men. Men, being innocent, who seek to

fight back against such harassment find that they have also to fight the systemic

bias of the governments, the corrupt system, the police and the courts against

them in addition to prejudice propagated by feminist organizations. The

harassment of husband and his relatives has grown worst in recent times as the

norms of Indian Society has evolved from the Joint Family to the Nuclear

Family, making the husband, his parents and relatives more susceptible to

domestic violence which is not defined under the law.

To deal with Dowry / Harassment cases, the Anti-Dowry Law Section 498A

was inserted into the Indian Penal Code (IPC) in year 1983 by Criminal Law

(Second Amendment) Act of 1983 (Act No. 46 of 1983). It reads that Whoever,

being the husband or the relative of the husband of a woman, subjects such

woman to cruelty (mental or physical) shall be punished with imprisonment for

a term which may extend to three years and shall also be liable to fine.

Explanation: For the purposes of this section, ―cruelty‖ means(a) Any wilful

conduct which is of such a nature as is likely to drive the woman to commit

suicide or to cause grave injury or danger to life, limb or health (whether mental

or physical) of the woman; or(b) Harassment of the woman where such

harassment is with a view to coercing her or any person related to her to meet

any unlawful demand for any property or valuable security or is on account of

failure by her or any person related to her to meet such demand.



Analysis of the section shows that this law deals with four types of cruelty: 1)

Any conduct that is likely to drive a woman to suicide, 2) Any conduct which is

likely to cause grave injury to the life, limb or health of the woman, 3)

Harassment with the purpose of forcing the woman or her relatives to give some

property, or 4) Harassment because the woman or her relatives are either unable

to yield to the demand for more money or do not give some share of the

property.

Under this provision, the following acts would amount to cruelty to a wife that

may become the ingredients of a false and fabricated FIR:o drinking and

coming home late coupled with beating and demand of dowry;o filing false and

defamatory proceedings against the wife and humiliating her with search

warrants and seizing her personal property;o maltreating wife for dowry and

sending her back to her father's house resulting in illness due to shock and after

effects of cruelty;o cruelty and harassment of a mistress;o baseless allegations

of adultery, infidelity or unchastity of wife;o baseless allegation that wife was

carrying illegitimate child;o accusing wife of being barren;o scolding the wife

leading her to commit suicide;o repeated demands for dowry articles and money

from newly married wife and parents and consequent harassment;o taking away

child to harass wife for dowry;

Sec. 498A of IPC is a cognizable crime, which obliges a police officer to arrest

the accused without a warrant. In such cases of ‗Crime against Women‘, the

police authorities are under an obligation to take immediate action on receipt of

a complaint or of credible information, visit the scene of the crime, investigate

the facts, apprehend the offender and arraign him before a court of law having

jurisdiction over the matter. The aims of section 498A were to help wife to stay

with her husband, protecting wives from marital violence, abuse, and

extortionist dowry demands. But the actual implementation of this Act has left a

bitter trail of disappointment. Since there is no penalty or a fine for filing a false



case, many women are misusing this law to dictate terms. It is a myth that Sec

498A is protecting the women, in reality it is against women themselves and

also adversely affects children and aged people. Reality is 498A is destroying

marital harmony and gives no solution to solve the Problems of Marriage; rather

it is breaking Indian family system. If the husband has filed for ‗Restitution of

Conjugal Rights‘ under Section 9 of IPC, or Divorce and wife does not want to

comply so she files false complaint under Sec. 498A to blackmail husband to

increase her bargaining powers. The IPC498A is so convenient to misuse and

worse than TADA or POTA, but the lawmakers didn't consider the effect of any

possibility of its misuse and how it will spoil the basic foundation of institution

of marriage in Indian Society.

A large number of cases filed under anti-dowry law IPC 498A are not cases of

actual dowry demands, but a reflection of a more sinister design to legally

blackmail innocent husband and in-laws for money. This is borne out by the

statistics from many sources (including the Council of Social Research) that

show that more than 90% of the cases filed under section 498a are without

merit. Though projected to be a law benefiting women, 498a has, ironically,

victimized countless innocent women related to the husband‘s family.

These biased laws and their unfair implementation is increasing the single

parenting, distrust in the ‗laws and legal system‘ and marriage, dissatisfaction

and insecurity among the law abiding citizens and a great hatred and vengeance

for country. It is taking a heavy toll on the sensitive minds of young people who

are now scared to marry with an Indian bride. Due to these faulty laws, many

innocent, lawful and reputed citizens are being defamed as culprits and

criminals in society. The whole drama also affects and involves other people of

society who are colleagues, friends and relatives of the accused and get shocked

to hear the dowry harassment case on accused which they can not believe as



they have known the person very well. It is seen that the society is altogether

opposing such laws that are heavily misused in the interest of daughter-in-law

only, who terrorizes the husband, his family and the whole society. Abuse of

Section-498A Should Be immediately curtailed and law abusers should be

punished without mercy to stop this dangerous trend, which is creating havoc in

family, society and the nation.

Today, the issue of ―misuse of laws‖ has become a real threat to the

sustainability and existence of ‗Institution of Marriage‘ in Indian society and

family. The problem can be controlled by the proactive participation and

initiatives of government, senior persons and social workers of society, in the

same way when they together raised voice to safeguard harassed women and

supported the making of such gender-biased laws which are now easily misused

due to corrupt administrative framework.

The state governments and police authorities shall consider the proactive

measures while dealing with complaints under ―Cruelty Against Women‖ so

that safety and protection of family unit and marriages in Indian society. It is

becoming the utmost society‘s responsibility today that such laws related to

―Crime Against Women‘ shall not be misused by unscrupulous women, and the

society shall help and support for saving the marriage and the future of involved

children, the wife, the husband and their relatives.

Many harassed husbands and their family members cannot handle the drastic

and dramatic changes that shake their lives so desperately seek genuine advice.

They need experienced persons to share problems of intimate relations that are

very sensitive in nature. To sort out the upsurge in such marital disputes,

various volunteer based self-help groups are formed to provide free advice and

counselling on Indian Marriage Issues like Separation, Divorce, Harassment,

Cruelty, Torture, Incompatibility, Depression, Psychological disorders,



Misunderstanding and Domestic Violence. They provide free advice for

preserving the marital harmony and counselling for amicable settlements

between the disputed parties. These self-help groups are formed by victims of

abuse of dowry law, that provide support though help lines at Delhi, Mumbai,

Bangalore, Hyderabad, Jaipur, Kolkata and many other places. Volunteers

organize weekly counselling meetings on every Saturday and Sunday. The

members are victimized husbands and their family members who are running

the country-wide campaign ―Save Indian Family Movement‖ against their false

implication in false complaints under laws related to Dowry Harassment like

Dowry Prohibition Act (DP Act), Sec. 498A of IPC and the new Domestic

Violence Act 2005 (DV Act). The members are actively organizing regular

Press Conferences, Seminars, Public Protests and Dharnas around the country to

create the social awareness on misuse of ‗women favoured laws‘. The

resourceful websites like www.498a.org and www.mynation.net are extensively

developed to provide assistance pertaining to the information on misuse of Sec.

498A IPC. The Assumption of the Law that in a given marital dispute, domestic

violence happens only to a wife in unfair and in violation of the basic principles

of justice. In a typical situation, a wife could act cruel to her husband

physically, mentally or by her anti-social behaviour. As in most Indian families,

the husband‘s parents, unmarried sisters and brothers, married brothers and their

wives and children also live with him, so the wife can be cruel to them. In such

circumstances, many husbands and their old parents have committed suicide

after being abused by everyone including the police, the courts and the civil

authorities. The vast majority of cases where the wife and her aides are guilty of

harassment and more go unpunished due to limitations in our laws and social

values.

Traditionally, in India, a newly married woman was expected to be quiet and

submissive to her husband and his relatives, but principally with his mother,



sisters and sisters-in-law, with a clear hierarchy operating among the

womenfolk. While in name, a Patriarchy, the Indian family has traditionally

been a Matriarchy. This operating hierarchy in joint Indian families used to

work as major mental and physical support and helped newcomers the daughter-

in-laws or ‗bhahu‘ to adjust and provided for their all type comfort at all times.

The aim has always been to provide for the needs of all members of the

household without exception. However, under pressures of modernity, this norm

has fractured and these days the married males get separated from their parents

and other siblings early in their married life to establish independently with their

wife and children. There may be many reasons for creating such nuclear

families but the most prominent ones are the disputes and tensions in between

the daughter-in-law, the ‗bhahu‘ and rest of family members. In most of such

cases, the husbands are compelled to leave their old parents under the enormous

pressure, threatening of filing false complaints in police (Dowry Case and

Domestic Violence Act) and blackmail by their wives and In-laws.



Conclusion

Till 1990s, India had amongst the lowest instances of separations in the world,

as low as 1 %. The last five years however have seen a steep increase with

surveys stating that the rate in Delhi has doubled in just 4 years. Other Metro

cities like Mumbai have reported figures as high as 2 out of every 5 marriages

ending in a legal breakdown. Even conservative and family oriented states such

as Punjab have seen a 150% increase.

Laws In India

Legally, a petition can only be filed after one year has elapsed from the date of

marriage unless there are exceptional circumstances. The Hindu Marriage Act

1955 lists 9 grounds for divorce. Namely –

Adultery

Cruelty

Desertion

Conversion of religion

Unsoundness of mind / serious mental disorder

Virulent and incurable form of leprosy of partner

Venereal and communicable disease suffered by a partner

Renunciation of the world

Unknown whereabouts of partner for more at least 7 years

In addition to the above grounds, parties may also file for dissolution of

marriage on the grounds of mutual consent, no resumption of cohabitation or no

restitution of conjugal rights for a period of one year or upwards after a judicial

decree of separation has already been passed.



Women have certain additional grounds for filing, namely – polygamous

husband, rape or sodomy inflicted on her, or if she was married before she

attained the age of 15 as long as the marriage was repudiated before she attains

the age of 18.

Because our country is a culturally and religiously diverse country, there are

more than one set of Personal Laws. Muslim law does not require seven years

of unknown whereabouts of husband. Four is sufficient period for the wife to

file for divorce. Similar is the case for the wife of a man who has been under

imprisonment for more than 7 years.

A Changing India

Divorce in our society has become increasingly common. Fifty percent of

all marriages will end in divorce and each year 2 million children are newly

introduced to their parent‘s separation, (Monthly Vital Statistics Report).

Demographers predict that by the beginning of the next decade the majority of

the youngsters under 18 will spend part of their childhood in single-parent

families, many created by divorce. During this confusing period of turmoil and

high emotional intensity, the child must attempt to understand a complex series

of events, to restructure numerous assumptions and expectations about

themselves and their world. He or she may be uprooted to a new school, city or

neighbourhood leaving their familiar social ties behind. They must often assume

new household duties, possibly feel the financial loss and most importantly

receive less support and nurturing from their parents. This are just a few

implications of divorce but demonstrates how it changes the lives of children.

Each child is unique, so the short and long term functioning of the

children after divorce varies widely. Wallerstein and Kelly (1980) observed and

interviewed parents and children three times in five years, and reported an



estimate of one third of the children come out of divorce unharmed. Another

one third function adequately, but experience difficulties, and the remaining one

third have severe upsets in their developmental process. However, the authors

of the "Family in Transition", approach this finding with caution because the

conclusions were made without comparing the children of two parent families.

Never the less they do note there are overall trends in the functioning of

children after divorce.

Courts have always considered the breakdown of marriages as the weakening of

society but the judicial system is slowly coming to terms with the fact that

marriages are dissolving faster and for a number of varied reasons such as

exposure to globalisation, financial liberation of women, sexual incompatibility

of spouses etc. New trends also suggest that women are becoming more

proactive in seeking separation.

The Rajya Sabha has recently proposed an amendment to marriage laws and is

seeking to provide additional grounds, thus simplifying the process by repealing

certain provisions, such as repeated appearance before the court in cases of

divorce by mutual consent.

Though there is stark opposition to the above move, it is comforting to see that

Indian laws are trying to incorporate the current reality of marriages and are

moving away from the age old concept of matrimonial alliances.

Not only has the country begun to open its eyes to the many hassles of

an increasingly urban lifestyle, it has now begun to accept the fact that the

dissolution of a marital union is as natural a process as the act of committing to

it in the first place.



BIBLIOGRAPHY

Books Referred:

Indian Law of Marriage and Divorce, Kumud Desai, Lexis Nexis

Family Law, Paras Diwan, Allahabad Law Agency

Cases and Materials on Family Law, Kusum, Universal Law Publishing

Co. Pvt.

Family Law in India, G. C. Venkata Subbarao & Shri G. S. Prasad Rao,

Asia Law House

Websites Referred:

www.islam101.com

www.legallight.in

www.legalaid.c.la

www.lawyersclubindia.com

www.desicritics.org

www.vakilno1.com

www.desktoplawyer.co.uk

Magazines, News Papers & Journals Referred:

All India Reporter

Supreme Court Cases

NALSAR Law Review

The Times of India

The Hindu

Legal Era

http://www.lexisnexis.in/kumud-desais-indian-law-of-marriage-and-divorce.htm

http://www.lawbookshop.net/cases-materials-family-p-336.html?osCsid=a6414a380a02306039aa5cd049426356

http://www.google.com/search?tbo=p&tbm=bks&q=inauthor:%22G.+C.+Venkata+Subbarao%22

http://www.google.com/search?tbo=p&tbm=bks&q=inauthor:%22Shri+G.+S.+Prasad+Rao%22

http://www.islam101.com/

http://www.legallight.in/

http://www.legalaid.c.la/

http://www.lawyersclubindia.com/

http://www.desicritics.org/

http://www.vakilno1.com/

http://www.desktoplawyer.co.uk/

Documents

Divorce and threat to institution of marriage in India: Socio-Legal study