1. INTRODUCTION

In India, marriage is not just a civil contract but a bond deeply rooted in cultural and emotional values. Society often views marriage as a lifelong commitment, making divorce a sensitive and challenging topic. Particularly, when a wife files for divorce, it is seen as rare due to societal pressure on women to adjust to difficult situations. However, there are circumstances where filing for divorce becomes necessary for a woman to protect her rights and well-being. With proper legal guidance and support, women can navigate the divorce process effectively. Consulting the best divorce lawyer in Bangalore can provide essential legal assistance and help ensure that the process is handled with the utmost care and expertise.

This article provides a detailed overview of filing a divorce petition by a wife, highlighting the grounds for divorce and the steps involved.

2. WHAT IS DIVORCE?

Divorce legally ends a marriage and is considered a civil contract in India. While marriage is seen as sacred in Hindu culture and a social commitment in Indian society, it is equally the responsibility of both partners to sustain it. Modern society acknowledges marriage failures and legal systems offer remedies for those trapped in unhappy or harmful marriages. Despite societal resistance, filing for divorce is sometimes the best solution, and women must know their legal rights in such situations.

3. GROUNDS FOR DIVORCE BY WIFE

The Hindu Marriage Act, of 1955 outlines various grounds for divorce, which women can use to file a petition in family courts. Here are the key reasons:

• Adultery
• If the husband engages in an extramarital affair, the wife can file for divorce. Although adultery is no longer a criminal offense in India, it remains a valid ground for seeking divorce.
• Cruelty
• Women often face mental or physical abuse in marriage. Domestic violence, dowry demands, and mental harassment are common examples of cruelty. The wife can file for divorce if she experiences such treatment.
• Abandonment
• If the husband deserts the wife for a continuous period of at least two years without any contact, the wife can seek divorce.
• Conversion of Religion
• If the husband converts to another religion or forces the wife to change her religion, it is grounds for divorce.
• Unsound Mind
• If the husband suffers from a severe mental disorder or loses his mental balance, the wife has the right to file for divorce.
• Leprosy or Communicable Diseases
• Diseases such as leprosy or other contagious illnesses provide valid grounds for a wife to seek separation.
• Renunciation
• If the husband renounces the world for religious reasons, the wife can file for divorce.
• Presumed Death
• If the husband has not been seen or heard from for seven consecutive years, the wife can file for divorce, as he is presumed dead by law.
• No Resumption of Cohabitation
• If the couple does not live together after one year of a legal separation order, the wife can seek divorce.

4. STEPS TO FILE A DIVORCE PETITION BY WIFE

Filing for divorce requires following specific legal procedures. Here are the steps involved:

• Filing the Petition
• The wife must file a petition in the family court with jurisdiction over her marital home or the place where she and her husband last lived together.
• Issuing Notice
• After filing the petition, a legal notice is sent to the husband. This serves as formal communication to inform him about the divorce proceedings.
• Response from the Husband
• The husband can either accept or contest the grounds mentioned in the petition. His response determines whether the case proceeds as a mutual or contested divorce.
• Court Proceedings
• If the case is contested, the court will conduct hearings where both sides present their evidence and arguments. In mutual consent divorces, the process is generally quicker.
• Final Decree
• After examining all evidence, the court issues a divorce decree, officially ending the marriage.

5. CHALLENGES FACED BY WOMAN FOR FILING DIVORCE

Despite having legal rights, many women face challenges such as societal judgment, family pressure, and financial dependency. These factors often discourage women from filing for divorce. However, with the assistance of a skilled lawyer, women can overcome these obstacles and assert their rights.

6. ROLE OF A DIVORCE LAWYER

A divorce lawyer plays a crucial role in ensuring that the process is smooth and legally sound. Here’s how a lawyer can help:

• Legal Advice: They guide the wife on her rights and the best course of action.
• Documentation: Proper preparation of the divorce petition and other legal documents.
• Representation: Advocating for the wife in court and handling contested cases.
• Additional Matters: Addressing related issues like alimony, child custody, and property division.

Even seemingly straightforward divorces can become complicated. Having a knowledgeable lawyer ensures that the wife’s interests are protected throughout the process.

7. MODERN PERSPECTIVES ON DIVORCE

Although Indian society still holds traditional views on marriage, attitudes toward divorce are gradually changing. Women are increasingly aware of their rights and are no longer willing to tolerate abusive or unhealthy relationships. Legal systems have evolved to support women in such cases, providing them with tools to seek justice and reclaim their lives.

8. CONCLUSION

Filing for a divorce petition by a wife is a significant step that requires careful consideration and legal support. While societal stigma may make the process difficult, women must prioritize their well-being and fight for their rights. With the assistance of an experienced divorce lawyer, the process becomes more manageable.

Whether it’s dealing with cruelty, abandonment, or other grounds for divorce, women should not hesitate to seek legal help. A divorce lawyer can guide them through every step, ensuring their rights are upheld and their future is secured. Remember, the first step toward a better life begins with understanding your rights and taking action.

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Today’s post has been contributed by John Bui, who is the Principal Solicitor of JB Solicitors. The firm primarily deals with matters falling under family law, criminal law, property law, and commercial law. John is a nationally accredited family law mediator and arbitrator.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Different countries may follow different legislation on divorces and their family law structures may vary. For example, Australia follows a no-fault divorce system, whereas the US follows a fault-based divorce system.

What is the difference between the two? Essentially, in a no-fault divorce system, there is no need for a party to prove that the other party has done something wrong which has led to the breakdown of their relationship.

There could be many reasons for no-fault divorce systems, such as:

1. Irretrievable breakdown of the marriage;
2. Living away from each other for extended periods of time;
3. Irreconcilable differences (as is the case in Australia), or
4. Incompatibility.

On the other hand, in fault-based divorces, a party will generally request for a divorce from the other party because of some fault committed by the latter party. These faults, often termed as matrimonial offences, can include various things such as:

1. Substance abuse;
2. Adultery;
3. If one partner has been incarcerated;
4. Abandonment for a period of time (minimum period of time to file for divorce may differ from state to state);
5. Emotional, physical or psychological abuse;
6. Impotence;
7. Cruel treatment;
8. Inability to have physical relations;
9. Infections caused by Sexually Transmitted Diseases (STDs)

Notably, in case of fault divorces, a spouse may object to the divorce if he or she wishes to. In this case, typically the spouse who is objecting to the divorce will need to present a defence to object to the fault.

Fault-based divorce systems can get more complicated especially considering the grounds of divorce. In such cases, proving incompatibility or irretrievable breakdown of marriage will not be sufficient.

The party who has filed for divorce must prove the other party’s misconduct. For example, in case the party filed for divorce on the basis of cruel treatment, the party needs to provide evidence that the cruel treatment was harmful to their mental and/or physical health.

Defences in fault-based divorce

As mentioned above, in such a divorce system, parties can object to the divorce by presenting defence. There are different kinds of defences based on the different grounds for divorce, such as:

• Collusion – an agreement between two spouses to fabricate grounds of divorce for some specific purpose;
• Connivance – in cases of adultery, alleging that the party filing for divorce was complicit in act of adultery
• Recrimination – if both parties are at fault for similar conduct such as if both parties have had extramarital affairs
• Provocation – if a party’s misconduct caused the other party to act in a certain way, for example if the other party abandoned the party filing for divorce due to provocation
• Condonation – a claim stating that the party filing for divorce was aware about the misconduct and had forgiven that conduct

Conclusion

As we’ve explored in this article, different countries follow different legislation with regards to divorce. Divorce is an emotionally challenging event. Legal procedures often become complicated and are extremely time-consuming.

Especially in fault-based divorces, the anxiety around legal steps in finalising the divorce remains high. Moreover, issues on alimony, property settlement and child custody will also arise.

When filing for divorce, it is imperative to stay strong and be aware of all legal technicalities that will arise. Failure to do so may lead to parties incurring huge losses and they may often find themselves caught up in court battles.

Understanding the laws that apply to your jurisdiction is very important. The primary way to do so is to engage with as many legal blogs as possible.

The post Expert – Fault versus no-fault divorce system in Family Law  appeared first on LexForti .

Navya Dubey is presently associated with the Institute of Law, Nirma University. Her area of interest is Intellectual Property laws and Human rights. Aditi Insaa is presently associated with the Institute of Law, Nirma University. Her area of interest is Intellectual Property laws and International Laws. Apart from this, she engages herself in reading current affairs and key issues affecting society.

Summary

The Prohibition of Child Marriage (Amendment) Bill, 2021 created a huge stir among the legal stakeholders and various experts. This article pursues to examine the deliberations, debates and flipside and majorly the shortfalls of the proposed amendment. What are the key issues involved and how the act blots the agency of women are the things to be deeply cerebrated?

Keywords: Agency, Rights, Marriage, Child Marriage, Bill

Introduction

2021 witnessed the presentation of the Prohibition of Child Marriage (Amendment) Bill, which increased the marriageable age of women from 18 to 21 years. It was done as per the recommendations of Task Force report headed by Ms. Jaya Jaitly, former President of the Samata Party, so appointed by the Ministry of Child & Women Development. The bill containing six segments was presented in the Lok Sabha by Union Minister for Women and Child Development Smriti Irani. It additionally proposed to correct seven individual laws — the Indian Christian Marriage Act; the Parsi Marriage and Divorce Act; the Muslim Personal Law (Shariat) Application Act; the Special Marriage Act; the Hindu Marriage Act; and the Foreign Marriage Act. The bill indeed tries to paint a rosy picture under the garb of women empowerment and gender equality. 

The avowed objective of the bill is to make the age of marriage even across all religions, regardless of contrary laws, customs, or ingrained practices. This article aims to put forth the claim that the proposed amendment will translate into gender equality when other factors like patriarchal mindset, early child marriage across religious communities are addressed.

Object and Reasons of the Bill

The object and reasons of the bill underscore that it seeks to “address the issues of women in a comprehensive way, as an action for bolstering the position of women. The bill prima facie seeks to increase the agency of women “as stated by the Parliamentary Standing Committee. However, the moot question which looms here is whether increasing the marriageable age will stop the underage marriages happening across the country. Many scholars, academicians like Zakia Soman (who fought the battle against Triple Talaq) have opined that these legal reforms alone are not sufficient enough to enable a just and safe environment for women. Experts have opposed the decision on the ground that the law to end child marriage won’t materialize as the decline in number of child marriages is marginal. Furthermore, they pointed out that cases of girls dropping out of school owing to early marriage reveal that many girls are often devoid of primary education.

 Notwithstanding, pundits have since brought up a large number of hidden issues — social disgrace, poverty, raised demand for dowries – that pushes ladies into an early marriage. They have likewise said that the law up to this point has not been sufficiently effective in forestalling child marriages. Consequently, there may be a possibility that this may very well be a handy solution for a complex issue that requires a more granular perspective, beginning from changes in the mindset and notions of the general public and society.

Specialists have additionally highlighted that in a nation where inter-caste and inter-religious marriages could be proven fatal, this law could become a tool that can be used by daughters to claim their rights. Regardless of the advantages the bill seeks to offer on the platter, it remains unclear whether this new lawful period of marriage will bring about the sea changes as stated or whether 21 would end up being simply a number.

Paradox

A major downside of increasing the age of marriage of women from 18 to 21 years is that it downplays the decision-making capabilities of marriage of both women and men. Back in 2008, The Law Commission Report which was published proffered a suggestion of reducing the marriageable age of men to 18 years assuming this step would further the parity between the legal marriageable ages of women and men.

An individual is considered to be an adult after attaining 18 years of age. This essentially means she is legally capable of buying property, voting and entering into contracts. The looming question here is why is this freedom curtailed with regards to deciding the age of marriage. Doesn’t the fact that a woman is exercising her own will to vote rationally suffice to conclude that she has attained the wisdom to rationally decide when she wants to get married?

Tarnishing the Agency of Women

We live in a society that is to date grappling with issues of child marriages and female foeticide. A daughter is treated as a parayadhan and a liability that needs to be handed over as soon as possible. People still have deeply- rooted beliefs that defy the agency and empowerment of women. India is already riddled with gender inequalities. The primary and the most fundamental thing which is required to eliminate these evils involve cultivating a value system that thrives on mutual respect between men and women. Recognition of women is sine qua non to create this value system.

Freedom of Choice which is available to women as a right gets truncated and reduced under the societal mores and pressures. For instance, choosing a partner becomes a task for young adults because the choice is enmeshed with barriers of caste, creed, religion, language, etc. These restrictions foisted upon the individuals are so stringent that violation of the same often leads to the murder of their daughter by families (Honor Killing) under the garb of protecting the caste. Instead of recognizing the rights of women and protecting the agency of women where she is able to choose a life partner, State Governments are riding on love-jihad laws, leaving no room for inter- religion marriages.

Families often abuse these laws to validate their social perceptions by simply annulling inter- religion or inter- caste marriages. The laws so abused include seeking repeal under the Prohibition of Child Marriage Act, making false charges of kidnapping and rape under the Protection of Children from Sexual Offences Act and IPC. The present bill also stands chances of being subjected to similar patterns of misuse and abuse by parents disapproving of their daughter’s choice of partner.

Conclusion

Age of 18 is considered to be a maximum breaking point as far as the physical and reproductive development of ladies is concerned. Hence, the proposed move will limit and constraint the privileges of grown-up ladies, an issue that needs to be reconsidered by concerned stakeholders.  Statistics reveal that India breeds every third child bride in the world and the proposed step which increases the marriageable age give a cue that around 34% of women would get married before attaining the marriageable age. Therefore, there are slim chances that raising the bar of marriageable age would result in sea changes in our society.

The bill seems more like a posturing attempt of pleasing and tokenism rather than a genuine step to eliminate issues of gender inequality, child marriages, maternal mortality, safety of women, etc. The stakeholders and the Government should proactively implement schemes to alleviate the situation. Ensuring easy access to education will go a long way to address the social evils that are deeply entrenched in our society.

The post The Prohobition of Child Marriage (Amendment) Bill 2021 – A double-edged Sword? appeared first on LexForti .

Abstract

The population in India is demarcated based on followers of Ideologies of Hinduism, Muslim, and many other religious ideologies. All the ideologies have their particular law while dealing with exclusive matters of their followers. In the era of modernization with continuous evolution and spread of population having a particular law for dealing exclusive matters of all the religions is a matter for a great concern that fabricates a serious need for enactment of a universal law for dealing with an exclusive matter of all the religions. This article is a critical analysis of factors that lead to the need for a universal law in modern times with this, the article also provides a critical analysis of the universal law with an eye of a Constitution of India, and this article also analyses costs and benefits of the application of universal law in the country. The article also provides recommendations for the better application of universal law in the country. 

KEYWORDS

Nikah, Mehr, talaq, guardianship, adultery.

Introduction

India is a land known for its secularity. There is not only one religion professed in the territory of India but more than one.  All the religions whether Hindu religion, Muslim, Sikh, Christian, and Parsi all have been provided with equal status and equal opportunity in the country. Every religious practice has its civil law or particular law administrating its exclusive matters such as Marriage, Divorce, Maintenance, inheritance, and succession, etc. The Hindus have their marriage act, inheritance and succession act, Muslims have their law administrating their exclusive matters, and Christians have their laws for their exclusive matters, while Jains and Sikhs were governed as per Hindu law. Despite been provided by the Constitution of India in Article 44 that the state should enact a universal civil code but there is no enactment of such law in the legislature of India till now. The universal civil code is the code that administers or governs all the exclusive matters of all the religions under one principle likewise all the penal matters of the country are administered under one law which is the Indian penal code enacted in 1860 etc. Till now the Goa is the only state of India that realizes the need for a universal civil code and enacted it as a law in its state. 

 Now in the modern world, it has been realized that having of particular law for a particular religion governing their exclusive matters particularly is a matter of great concern. As having of particular laws is a great threat to the unification of the nation as there is always conflict in principals and ideas among various religious practices and it also creates difficulty for Judicial institutions to handle the disputes where there is more than one law administrating the same set of the situation so each time when a dispute arises judicial institution has to solve the similar condition with different laws which only results in unnecessary delay and wastage of time of judiciary result of which there is a large number of cases pending before the Judiciary. Such bigamy is prohibited as per Hindu law which means any spouse as per Hindu law cannot remarry when his/her spouse is alive or present on the other side as per Muslim law polygamy is permitted which means a man can marry up to four women during his entire life, As per Hindu law guardianship during the marriage is not allowed and on the other side as per Muslim law Guardianship is allowed in marriage whereas as per Hindu law consideration by the husband to wife for marriage is not allowed whereas as per Muslim law consideration by the husband to wife for marriage is allowed. This type of difference fabricated the rigidity before the entire judicial system while handling the disputes in modern times where there are a large number of cases already pending before the entire judicial system. The differences in law also violate the principles of equality of the Constitution of India as according to the Constitution of India differentiation can’t be made based on caste, religion, etc. These differences are also a threat to the establishment of equal gender roles in the country as at some point Hindu women are entitled to get their rights but in a similar case and similar situation Muslim women are not entitled to get their rights this is also very discriminatory and derogatory aspect as at one place women is treated equally as men but at another place, women are treated unequally to men which is clear discrimination towards women based on their religion as ones protect their rights towards other but another doesn’t protect their rights this is against the principle of a Constitution of a country whose aim is to provide equal status to everyone irrespective of their religion, caste, etc. So the differences in the law handling exclusive matters in the country are a hindrance and threat to the overall development of the country which needs to be evacuated as early as possible as if there will be universal law all the Citizens will be treated equally to another irrespective to their caste, religion, tradition, etc. There are many differences in the particular law of one religion in comparison to the particular law of another religion administrating exclusive matters in the country which needs to be assessed and modified into one similar law in the country.

The Major Aspects Which Fabricated The Need For An Universal Civil Law

Mainly the differences in the law of various religions dealing with exclusive matters fabricated the need for enactment of universal civil law. The differences are-

As per the Hindu Marriage Act, the act of marriage is a sacrament or union of two people. According to this act, the ceremonies the marriage is compulsory, Bigamy is prohibited as per this act which means neither of any spouse can remarry during his/her entire course of marriage when his/her spouse is alive or present the bigamy is not only prohibited as per Hindu law but also considered as an offense which is punished as per section 494 of an Indian Penal code 1860.

In the case of Santosh Kumari v. Surjeet Singh, it was provided in this case that her husband could remarry during his entire life span then also when she is present even in that condition also the second marriage will be considered as illegal.

In the case of Sarla Mudgal v. Union Of India, it was held by the court that by converting to Muslim from Hindu and solemnizing of second marriage will be the misuse of personal law as laid down that this type of marriage will be considered as an offense as per section 494(5) of the Indian Penal Code, 1860. From this case, the judges provided an opinion to introduce a universal civil code in the country.

The legal age for marriage as per the act for boys is twenty-one years whereas for the girls is eighteen years. When the age of marriage was not increased to twenty-one years for boys and eighteen years for girls at that time father, brother, paternal grandfather or mother was having the right to act as a guardian for the marriage of their minor child but after the increase in the age limit for marriage the guardianship rule was over and marriage was only considered legal and valid when they attained the specified age limit for marriage.

Now as per Muslim law the marriage is only a contract to fulfill sexual desires, for channelizing domestic life, to increase the size of the family. This concept is opposite to the concept of marriage as per Hindu law where marriage is not only considered a sacrament but also considered as a union of two sexes. Marriage in Muslim law is known as Nikah. As per Muslim law for the valid marriage of Nikah, there should be a proposal from one party for marriage and acceptance for marriage from the other party to marriage the proposal and acceptance for marriage should be without any fear, coercion, or fraud. As per Muslim law, the husband is entitled to provide the consideration to the wife in respect of marriage the consideration amount for marriage is known as Mehr. It is upon women to accept or reject the proposal on a certain amount of consideration. As per Muslim law, a man can marry up to four women’s but the condition is he should have the capacity to treat all the wives equally. As per Muslim law when a boy or girl attains to the age of puberty then he or she is free to marry the person of their choice. But the marriage of a minor can be solemnized with the consent of the guardian and the guardian can be his/her father, paternal grandfather, brother, mother, maternal uncle, etc so guardianship is allowed as per Muslim law.

In the case of Abdul Ahamad v. Shah Begum, it was held by the court that the consent given by the person who is not authorized to provide consent for marriage from the side of a minor person is invalid. In such a case the marriage will be held invalid.

The matter related to the marriage under Christian law is governed by The Indian Christian Marriage Act, 1872 which provides that the marriage is an agreement between two peoples through offer and acceptance and the legal age for marriage as per Christian law for a boy is 21 years whereas for a girl is 18 years.

The matter related to the marriage under Parsi law is governed by the Parsi Marriage and divorce act which states that for a valid marriage the boy should be of a minimum of 21 years and the girl should be of a minimum of 18 years with two witnesses followed by the ceremonies of marriage as per the act.

So we can observe from the above that there are vast differences in regards to marriage in all the laws, if one law permits one this another law prohibits the same thing.

We can also observe the major differences in Hindu and Muslim law in regards to marriage from this table-

 As per Hindu law, the legally wedded husband and wife can dissolute their marriage on the grounds stated in section 13 of the Hindu Marriage act. The Hindu marriage act also under section 13-B provides a provision for divorce by mutual consent which means the legally wedded Husband and wife can dissolute their marriage by mutual consent of each other. The Hindu marriage act under section 14 provides that the marriage can’t be dissolved before the completion of one year of marriage.

As per section 13 of the Hindu marriage act following were the grounds for a divorce-

1. Cruelty- this ground states that when the behavior of one of the spouses is that it seems impossible for the other spouse to cohabit with the other. So it becomes the valid ground for divorce as per the Hindu marriage act. It also means that the distress fabricated by one of the spouses is that which affects the mental health of the other spouse.
2. Adultery- Adultery means voluntarily sexual intercourse with any person other than his/her spouse who is not his or her spouse. Adultery is a ground for divorce. Earlier adultery was known as a criminal offense under section 497 of Indian Penal Code-1860but in the case of Joseph Shine v. Union Of India, The court struck down section 497 of the Indian Penal Code by decriminalizing adultery and held adultery as a ground for divorce. 
3. Conversion- when any spouse converts his or her religion after marriage so such conversion will be held as a valid ground for a divorce.

In Madanam Seetha v. Madanam Vimla, In this case, the husband was held entitled to divorce when his wife converts her religion from Hindu to Christian religion.

4. Venereal disease- when one of the spouses is been suffering from such a disease which is communicable in that case divorce can be granted to another spouse on this ground.
5. Unsoundness of mind-   when one of the spouses is unsound from mind in that condition the divorce can be granted to the other spouse.

So as per Hindu law if any of these grounds are satisfied in the petition of divorce filed by one of the spouses so the divorce can be granted to the sound on these grounds. Otherwise legally wedded couples can also dissolute their marriage by mutual consent as per section 13-B of the act.

As per Muslim law, divorce can be of two types judicial and extra-judicial divorce. Extrajudicial divorce is of three types mainly, divorce by husband, divorce by wife, and divorce by mutual consent. There are three modes provided in which husband can take divorce in the first mode which is known as ahasan talaq husband can announce talaq any time when a wife is free from menstruation, in the second mode which is known as Hasan talaq husband is asked to announce talaq three times during one month or 30 days, in the third mode husband is asked to announce talaq when women are free from menstruation or can announce talaq in one sentence or three sentences. 

As per Muslim law, the wife does not have the right to announce divorce on her own but she can only announce divorce when the right to announce divorce is provided to her by her husband. Her husband can provide her the right to divorce on a conditional or unconditional basis or the wife has to buy this right from her husband. 

In the case of Buffatan Bibi v. Abdul Salim, it was held by the court that a wife who wishes to exercise her right of divorce provided by the husband must have to specify that the conditions led down by her husband for divorce is fulfilled.

In the mutual form of divorce, one party makes an offer of divorce and the others party accepts the offer of divorce then this form of divorce is known as mutual divorce.

After the passing of the Muslim marriage act of,1939 there is also provision for dissolution of marriage by judicial means. The grounds on which the judicial divorce can be granted are-

1. If there is no information of husband for more than four years,
2. If the husband fails to provide maintenance to his wife,
3. If husbands fail to perform marital obligations,
4. If the husband is found to be impotent,
5. If the husband inflicts cruel treatment towards with,

Based on the following grounds court can grant a judicial divorce.

So we can observe that the Hindu marriage act provides provision for only judicial divorce on the other hand Muslim law provides provision for both judicial and extra-judicial divorce. Whereas the matter related to divorce in Christian and Parsi law is governed by Indian Divorce Act 1869 which provides similar grounds for divorce such as adultery. Bigamy, cruelty, rape, and unsoundness of mind, etc 

We also observed that as per one law more rights are provided to women in respect of divorce but as per another law more rights are provided to men than women.

In regards to providing maintenance to the wife the court in the case of Danial Latif v. Union Of India, the court held that Muslim women also possess the right to receive maintenance even after the iddat period ends. Whereas in the case of Noor Saba Khatoon v. Mohd. Qasim, it was held by the court that children of divorced Muslim women also have the right to claim maintenance from their father. The Hindu law also provides a provision for grant of maintenance to wife it not only provides a provision for providing maintenance to wife after divorce but also provides a responsibility to the husband of maintaining his wife after marriage. Whereas the matter related to the maintenance in the Parsi and Christian law is governed as per the Indian Divorce Act,1869 which confers the right to claim maintenance through both civil and criminal proceedings.

So with the slight difference, all the laws provide a provision for providing maintenance.

So it can be said that principles of all the laws are different from each other and it is difficult to say that one law is better than another but it is also not difficult to say that there is not any discrimination between gender roles based on religious practices.

Besides these differences for establishing equal gender roles, for providing justice to the people of every gender, for removing the rigidity in process of dispute resolution there is a serious need for the enactment of a universal civil law in the country

UCC From The Eyes of the Constitution of India

The constitution of India already holds the provision for the creation of a universal civil code. The constitution of India in Article 44 states that the state should enact a universal civil code that administers all the exclusive matters of all the religions under one principle. The need for a universal civil code was realized in the case of Sarla Mudgal v. Union of India in the said case the court provided its opinion for the enactment of universal civil code as per Article 44 of the Constitution of India. In the case of Mohammad Ahmed Khan v. Shah Bano also the court realized the need for a uniform civil code, in this case, the court said that enactment of the Uniform Civil Code will help in removing disparities to law fabricated due to conflicting ideologies and will help in the integration of the country.

When the question arose in regards to universal civil code contradictory to the principle of freedom of conscience and freedom to profess religion contained in Article 25 of the Constitution of India. So the court in the case of John Vallamatton v. Union Of India, Held that Article 25 of the Constitution of India provides freedom of Conscience and freedom to profess and practice any religion which means every person is free to profess any religion of his choice whereas civil code differentiates religion from the social relations and personal law so there is no link between religion and personal law. The aim of Article 25 is to provide freedom to a citizen to profess the religion of their choice whereas civil code aims to govern social relations of citizens irrespective of any distinctions. So the civil code doesn’t contradict the provision of Article 25 as it doesn’t overtake the right of any individual to profess any religion freely but it only governs the social relations of individuals.

Costs and Benefits of the Enactment of the Universal Civil Code

Costs

   It will be a very difficult and challenging task for the administration to implement such a law in the country which directly triggers the ideologies of an individual as with a country where such a diverse population resides it will be a challenging task for an administration for bringing a major shift in the ideologies of an individual as people will resist accepting such big changes as for every individual in the country their ideologies matters the most. 

Benefits

The enactment of universal civil will generally help in the unification of nations by removing barriers of conflict in ideologies. The enactment of a universal civil code will help in providing similar rights to every individual in the society irrespective of any discrimination and any barriers. The enactment of universal law will also help in reducing the time of the judiciary in resolving the disputes by protecting from unnecessary delay led in the interpretation of principles of the particular law of every religion.

Conclusion

The above scenario explains to us that how having a particular law for particular religion governing exclusive matters of their religious member is a hazard in the modern world. This type of law is also a threat to the fundamental rights of the citizens. Besides this having such a law is also against the principle of equality guaranteed by the Indian constitution as it distinct the individual based on their religion. Having such a law is also a threat to gender justice as one gender is still now suppressed in comparison to another irrespective of providing equal status to them. The particular law brought Unnecessary and complexity to the judicial system of the country. As one law permits one practice on the other hand in a similar situation and similar circumstances another law denies that thing so it is very difficult for judicial institutions to solve every similar situation ad similar conditions with different prospective and from different interpretations. So having such a particular law is a threat to the progress of the nation in the modern world.

Eventually, the enactment of a universal civil code in the country will bring a major shift in the paradigm in dealing with exclusive matters in the country. The enactment of such a law will be an effective step in the unification of the country by removing conflict in ideologies. The enactment of such a law will be a great solution for providing gender justice in the country. Such a law will also fulfill the basic motive of the Constitution of India to establish equality in the country and to remove disparity from the country. So we can say that the enactment of a universal civil code is a need of an hour in the modern world to adapt and to keep pace with the change of the modern world.

Recommendations

Following are the recommendations-

1. With the enactment of a Universal civil code, the ideologies of an individual should also be kept into consideration. 
2. A draft should be prepared in such a way that the sentiments of every individual should not hurt.
3. More and more focus on removing rigidity while bringing flexibility in the judicial system should be kept.
4. Adaptation to the changes required to keep pace with the modern environment should be kept in mind while drafting such a policy.
5. More and more effort to provide justice to every gender and to establish equal gender roles in the country should be kept in mind while drafting such a policy.

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In the instant case, the petitioner had married a Muslim boy. The petitioner was aged above 18 years, however, the boy, though a minor, had attained marriageable age according to Muslim Personal Law.

The bench relied upon the precedent set in the case of Hardev Singh v Harpreet Kaur and stated that if the woman is above the marriageable age as prescribed in the Child Marriage Act, then no offence can be made out in terms of this Act.

The bench allowed the protection petition and stated that if upon verification of age certificates, it is revealed that the age of girl is below 18 years, then action under the provisions of Child Marriage Act may be taken.

In this case, the bench examined the age certificates furnished by the parties and found that the girl is “just above the age of 18 years.” The bench held that the life and liberty of petitioners would be protected even though the boy’s age does not meet the legally marriageable age limit provided in the Child Marriage Act, 2006.

The bench discussed about various judgements passed by different High Courts which regarding rift between Indian Law and personal laws. This conflict has been present, however, it aims at providing justice to the right-intended parties.

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As the couple are the US citizens while their parents reside in Kerala, therefore, since adoption, the child is living with the grandparents in Kerala as the couple was not able to obtain the passport for the child till date. Now the child herself is aged more than six and the couple claim that they are visiting her regularly, on an annual basis, and are also in touch with her through electronic platforms

The main issue of the case was that the couple was not able to get the claim the declaration of parent hood as the court in Punjab stated that Hindu Adoptions and Maintenance Act, 1956 does not apply on the Christians. However, when the matter went to the High Court of Delhi, the Judge stated that the welfare of the child is paramount in such cases and the validity of the rejection of the NOC by CARA is to be examined by the Court. No coercive measures shall be taken pursuant to the letter dated March 2, 2020, against the petitioners, the child, their relatives, or any person who facilitated the adoption.

Therefore, The Delhi High Court has issued notice to the Central Adoption Resource Authority (CARA) on a plea by a Hindu couple, living in the U.S., seeking a no-objection certificate (NOC) to adopt a child born to Christian parents.

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SECTION 13 HINDU MARRIAGE ACT 1955- DIVORCE

Divorce among Hindus was not recognized until the Hindu marriage Act, 1955. Manu says that a marriage can end only with the death of one of the spouses. Any divorce taken otherwise was not only frowned upon but deeply stigmatized and prejudiced. Divorce was considered as a sin.

British India only had the Divorce Act, 1869[i] which provided for the divorce procedure in India for people professing the religion of Christianity. Other than that there was no enactment for the divorce process in India.

It was only in 1955 that parliament passed the Hindu Marriage Act 1955 and provision related to the concept of divorce was introduced in the act. Divorce, the said term has not been defined in the act but it simply means, dissolution of marriage. Various grounds of divorce are mentioned under section 13 of the Hindu Marriage Act[ii].

GROUNDS OF DIVORCE

1. ADULTERY- Section 13(1)(i)

Adultery means voluntary sexual intercourse outside lawful wedlock.

It is for the petitioner to prove that there was a lawful marriage and that the respondent had sexual intercourse with a person other than him/her. Marriage must be subsisting at the time of the act.

Supreme Court in Joseph Shine Vs Union of India[iii] ruled that adultery is not a crime and struck down section 497IPC. It was observed that two individuals may part if one cheat but to attach criminality to infidelity is going too far. Adultery is a personal matter and how do couple deals with it is a matter of privacy at its pinnacle. This loss of moral commitment in marriage which creates a dent in the relationship has been left for the personal call of the couple. If they wish to, they can proceed with the divorce.

2. CRUELTY- Section 13(1)(ia)

Treating the petitioner with cruelty after the solemnization of marriage is a ground for divorce. Cruelty can be both physical and mental. Physical beating or causing bodily injury to the spouse amounts to physical cruelty. Physical cruelty is easy to determine. It is difficult to say what constitutes mental cruelty. Cruelty is also an offense under section 498A IPC[iv]

ESSENTIALS- [v]

a) The conduct complained of should be “grave and weighty”

b) The petitioner spouse cannot be reasonably expected to live with the other spouse.

c) It must be something more serious than “ordinary wear and tear of married life”.

Some instances of mental cruelty-

1. False accusations of adultery

2. Demand for dowry

3. Alcoholic and abusive partner                

4. Impotency of wife

5. Immoral life of the partner

6. Incompatibility

3. DESERTION- Section 13(1)(ib)

It can be simply understood to mean abandoning a spouse. As per section 10(1) of HMA[vi], divorce can happen if the petitioner had been deserted for a continuous period of two years immediately after preceding the presentation of the petition.

Essentials-

a) Factum of separation

b) Animus Deserdendi i.e., intention to desert

c) Desertion without any reasonable cause

d) Desertion without consent of the other party

e) Statutory period of 2 years must have passed before a petition is presented

4. CONVERSION- Section 13(1)(ii)

If any spouse ceases to be Hindu and converts into another religion without the consent of the other spouse, a divorce can be granted.

5. INSANITY-Section 13(1)(iii)

There are two requirements of insanity as a ground of divorce-

a) The respondent has been of incurable unsound mind

b)  Respondent suffering continuously or intermittently from mental disorder of such a kind or extent that it would not be reasonable for the petitioner to continue living with the respondent.

6. LEPROSY – Section 13(1)(iv) (Omitted)

Leprosy was earlier one of the grounds of divorce is now omitted. The Law Commission in its report had recommended repeal of any provision which were discriminatory against leprosy-affected people. India is also a signatory to a UN Resolution which calls for the elimination of discrimination against persons suffering from leprosy. Parliament on 13^th February 2019 passed, Personal Law Amendment bill[vii] removing leprosy as a ground for divorce under five personal laws including the Hindu Marriage Act.[viii]

 7. VENEREAL DISEASE –Section 13(1)(v)

A sexually transmitted disease that is incurable and transmittable forms a ground of divorce, if either of the spouses is suffering from any such disease. A disease like AIDS is called venereal disease.

8. RENUNCIATION -Section 13(1)(vi)

When one of the spouses decides to renunciate the world and enters a holy order, then the other spouse can file a divorce petition. Renouncement of the world by entering any religious order must be absolute. It amounts to civil death and has the effect of excluding a person from inheritance and the right to partition.

8. PRESUMPTION OF DEATH- Section 13(1)(vii) 

If a person has not been heard of as being alive for at least seven years, by those persons who would naturally have heard of it, had that party not been alive, this is a legal presumption of death.

This presumption may be rebutted if a person has not been heard of for the last 7 years due to special circumstances such as absconding on a charge of murder.[ix]

SECTION 13(1A)(i) – NON-COMPLIANCE WITH DECREE OF JUDICIAL SEPARATION

If there has not been any resumption of cohabitation between the couple even after one year has elapsed since the passing of the decree for judicial separation, a spouse can present a divorce petition. Resumption of cohabitation simply means living together in a conjugal relationship.

The court will grant a decree for divorce under 13(1A) if there is no bar as laid down in section 23 of HMA.

SECTION 13(1A)(ii) -NON-COMPLIANCE WITH DECREE OF RESTITUTION OF CONJUGAL RIGHTS

Restitution of conjugal rights means restoration of marital obligations. If there has not been any resumption of conjugal rights for one year after the passing of a decree under section 9 of the act, then either of the spouses may present a divorce petition.

The court before granting a decree for divorce on this ground may be satisfied that the petitioner is not disentitled to this right because of any bar laid down in s. 23 of the Act.[x]

In Saroj Rani Vs Sudarshan Kumar[xi] it was held that where the husband has obtained a decree for restitution of conjugal rights, only to seek a divorce under s. 13(1 A)(ii) of the Act and preventing the wife from performing her conjugal duties by driving her away from the house, this constituted misconduct under s. 23(1)(a) of the Act as the husband was taking advantage of his wrong and hence he was not entitled to any relief under s. 13(1A) of the Act.

SPECIAL GROUNDS OF DIVORCE FOR WIFE

The wife has been given special grounds to seek divorce.

SECTION 13(2)(i) – BIGAMY

If a husband already has a wife before the commencement of the act and after the commencement of the act he gets married to another woman, either of the two wives may apply for divorce. The only rider is that the divorce petition would be successful if the other wife was alive at the time of the presentation of the petition.

SECTION 13(2)(ii)- RAPE, SODOMY or BESTIALITY

A wife can file a divorce petition if her husband has been guilty of Rape, sodomy, or bestiality since the solemnization of marriage.

Rape is a criminal offense under section 375IPC. Section 375 IPC which defines rape does not criminalize marital rape. Rape laws in our country continue with the patriarchal outlook of considering women to be the property of men post marriage. After marriage, a woman is supposed to have given implied consent for her body to be used in and as the way her husband likes.

Exception 2 to section 375 reads that sexual intercourse or sexual acts by a man with his wife who is not below 15 years of age, is not rape. Section 42A was inserted in the POCSO Act which says that the provisions of POCSO would prevail over any other law including IPC to the extent of the inconsistency. According to POCSO, a child is a person below 18years of age and any sexual intercourse with a child below 18years is a punishable offense. POCSO prevails over IPC. However, the law is still silent over the rape committed by a husband of his wife who is 18 or above.

Sodomy is committed by a person who has carnal copulation with a member of the same sex or with an animal or has non-coital carnal copulation with a member of the opposite sex. Bestiality means sexual union by a human being against the order of nature with an animal.[xii]

SECTION 13(2)(iii)- DECREE OR ORDER OF MAINTENANCE

When a decree for maintenance of wife under section 18 of Hindu Adoptions and Maintenance Act, 1956 or

An order of maintenance has been passed under section 125CrPC against the husband

The wife has the option to present a petition for divorce if 2 conditions are satisfied-

a) That she was living apart

b) There has been no cohabitation between her and her husband for at least one year after the passing of such decree.

SECTION 13(2)(iv)- MARRIAGE BEFORE ATTAINMENT OF AGE OF FIFTEEN YEARS

A wife may present a petition for divorce if marriage was solemnized before her attaining the age of 15 years. Such a child bride can opt-out of marriage on the attainment of puberty and can ask the court for repudiation of the marriage after attainment of 15 years of age but before completing 18 years of age.

Courts allow child brides to exercise this right to protect those who may have been coerced into marriage.

CONCLUSION

Section 13 presents various grounds for divorce that are present to the spouse. Additional grounds have been provided to wives to claim divorce. Hindu marriage act adopts fault theory in the matter of divorce which means that marriage can be ended when one of the spouses is responsible or liable for the offense under matrimonial offenses. The innocent spouse can seek the remedy of divorce.

As pious a relationship of marriage is, recognizing divorce in a civilized world is important. Apart from the various ground mentioned here, divorce by mutual consent, irretrievable breakdown of marriage is some of the other grounds available to a married couple for seeking a divorce. Increased emphasis on individual liberty and their choices has increased acceptance of divorcees in our country and stigmatization too is seeing a decline which is a positive change in society.

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Introduction

Marriage among Hindus is considered as a holy and a sacrosanct union. It is a religious sacrament that binds a man and a woman together in a permanent relationship.

Sociologist, R.N.Sharma(i) defines marriage as a relationship in which a man and a woman are bound together for the physical, social, and spiritual purposes of dharma, procreation, and sexual pleasure.

In Tekait Mon Mohini Jemadai vs Basant  Kumar Singh(ii), the court held that marriage under Hindu law was a sacrament, an indissoluble union of flesh with flesh, bone with a bone to be continued even in the next world.

Codification of Hindu Laws very much changed the nature of marriage. The Hindu Marriage Act, 1955(iii) added provisions of divorce, remarriage of widows, etc. which was earlier frowned upon. But it would be an overarching remark to say that Hindu marriage is purely a contract.

Section 7 of the act emphasizes marriage according to religious rites and ceremonies, essentials of a valid contract are missing. While consent and a legal age are necessary to enter into the bond of marriage, child marriage or marriage with a person of unsound mind is not void per se.

Be that as it may, marriage once solemnized, whether contractual or sacramental gives rise to a bundle of rights. It changes the status of the couple to legally wedded husband and wife, legitimacy is conferred on children born out of this marriage. Marriage thus marks the beginning of a family.

Meaning of Restitution of Conjugal Rights

Restitution means- Restoration

Conjugal rights mean rights emanating from a marital bond.

Cumulatively these rights are called conjugal rights and form the very essence of a marital union. Restitution of conjugal rights means the right to stay together.

It is an accepted norm that each spouse is entitled to the society and comfort of the other and if any spouse, without any reasonable cause leaves any spouse, the latter can move the court for a decree of restitution of conjugal rights.

The restitution of conjugal rights is a positive remedy that is given to a spouse to protect their marriage, to facilitate cohabitation among couples, and to save the sanctity of marriage.

Section 9 | Essentials

In the Hindu marriage act, 1955 remedy of restitution of conjugal rights is provided under section 9 (iv)

Following are the essential requisites of section 9-

1. There must be a marriage between the parties i.e., the parties should be legally wedded, husband and wife.

2. There must be a withdrawal of one spouse from the society of the other spouse.

3. This withdrawal should be without any reasonable cause.

4. The aggrieved party in such a situation may apply for restitution of conjugal rights.

5. There should be no other legal ground for refusal of the relief.

6. The court should be satisfied with the truth of the statement made in the petition

7. Accordingly, the court may grant a decree in favor of the aggrieved party.

8. If the suit is successful, the couple would be required to stay together.

Meaning of Withdrawal from Society

Law Commission in its 71st report titled- Irretrievable breakdown of marriage as a ground of divorce in para 6.5 reads-“The essence of marriage is a sharing of common life, a sharing of all the happiness that life had to offer and all the misery that has to face in life. Living together is a symbol of such sharing. Living apart is a symbol indicating the negation of such sharing.”(v)

Law commission makes it clear that cohabitation is an essential condition of marriage. Cohabitation means living together as husband and wife, wife rendering wifely services to her husband; the husband rendering husband like service to his wife. They must live together not merely as two people living in one house, but as husband and wife.(vi)The object of the restitution decree is to bring about cohabitation between the estranged parties so that they can live together in the matrimonial home in amity.(vii)

Besides physical separation, withdrawal also involves a mental process. It is a process resulting in a physical separation where parties are willfully avoiding marital obligations.

Burden of Proof

An explanation has been appended to the section in the year 1976 which places the burden of proving reasonable excuse upon the spouse who has withdrawn from the society.

The petitioner would first prove his case that the other spouse has withdrawn from his society without any reasonable cause. The burden would then shift to the other spouse for the defense of a reasonable excuse.

Reasonable Clause

What constitutes a reasonable excuse or a just cause is left to the subjective determination of each court. No straitjacket formula as such has been laid out. What would be a reasonable excuse will depend on the facts of each case. The reason must be grave and convincing.

In Smt. Sumanbai vs Anandrao Onkar Panpatil, 1976 (viii)- the court held that there can be no more insulting injury to the wife than her own husband questioning her chastity. And such a remark would amount to a reasonable excuse for the wife to withdraw from the society of her husband.

Iqbal Kaur vs Pritam Singh(ix), A Punjab HC judgment- the court held that allegation of unchastity was sufficient to amount to cruelty and reasonable excuse within the meaning of Section 9 of the Hindu Marriage Act.

R.Natarjan vs Sujatha Vasudevan 2011(x), the court held that if a wife is asking to live separately from husband’s aged parents, it does not amount to a reasonable excuse of withdrawal and the wife can be granted a decree for restitution of conjugal rights.

Sushila Bai v. Prem Narayan(xi), the husband deserted his wife and thereafter was unresponsive towards her. It was held by the court that such behavior is sufficient to show that he had withdrawn from the society of his wife, and therefore the wife’s petition for restitution of conjugal rights was allowed.

Constitutional Validity of Section 9

Andhra Pradesh HC– T. Sareetha v. T. Venkata Subbaiah(xii), section 9 of Hindu Marriage Act, 1955 was held as unconstitutional because this decree snatches the privacy of the wife by compelling her to live with her husband against her wishes.

Delhi HC in Harvinder Kaur v.Harmander Singh (xiii), held section 9 of the Hindu Marriage Act as valid.  Justice Krishna Iyer observed, “Introduction of the Constitutional Law in the Home is most inappropriate, it is like introducing a bull in a China shop”.

 This view was upheld by the Supreme Court of India, in Saroj Rani v. S.K. Chadha(xiv). The SC held that in the privacy of home and married life Article 21 or Article 14 has no place.

With Supreme Court declaring the right to privacy as a fundamental right in K.S. Puttaswamy (xv) and Joseph shine(xvi) clarifying that privacy depends on the exercise of autonomy by individuals and the right to privacy cannot be infringed by considering familial structure a private space, debate is once again ripe on the constitutional validity of this section.

Conclusion

Section 9 HMA enables a spouse to file a petition for obtaining a decree of restitution of conjugal rights against the other spouse who has left his society without any reasonable cause. It is a positive remedy and a marriage-saving clause.

Marriage among Hindus is a sacrament, a relationship beyond birth and death, and section 9 facilitates the protection of such marriage. But times have changed and so have people.

Section 9 has emerged as a coercive clause that compels two adults to live together against their wishes. It is an anomaly that on one hand we advocate about freedom and personal liberty of an individual and on the other hand, a provision like section 9 exist which every so often compels spouses to live with each other even when there is no affection and care left.

The law that was taken from England was banned by England way back in 1970. But we have been stuck to our colonial roots.

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The bench made this observation by upholding the underlying principle of welfare of child. The bench stated that even though the marriage was performed with the minor girl’s consent, the consent factor would fade away as child marriage itself is an offence.

In the instant case i.e. Ranjeet Kaur v State of Punjab & Ors., a girl who’s age is 16.5 years, married petitioner’s brother. The girl’s parents lodged an FIR on the basis of which girl’s husband was arrested and the girl was sent to Nari Niketan as she did not wanted to go with her father.

The petitioner filed said petition and sought for girl’s release from alleged illegal detention. Upon hearing the submissions of both the parties, the court observed that though the marriage had been performed with the girl’s consent, it might not be illegal, but is a voidable marriage under the Prohibition of Child Marriage Act.

The bench also stated that there are various logical reasons behind a legislation which makes it mandatory for a girl to be of 18 years of age for performing marriage.

The bench also highlighted various evil effects of female girl child marriage which includes serious health problems and chances of violence, affects them psychologically and socially by denying them access to possible social networks.

The bench noted that the girl is not facing any difficulty while staying at Nari Niketan or Child Protection Home. The bench also stated that her stay at Nari Niketan cannot be said to be detrimental to her well-being.

The bench held that the girl would continue her stay at Nari Niketan until she reaches the age of majority. It also directed Child Welfare Committee to make periodical inspections and monitor the well-being of girl.

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However, the sons of the late husband’s brother disapproved of such transfer and filed a suit against it. This suit was dismissed by the trial court, and High Court which resulted into the Supreme Court. In the plea they contended that a Hindu Widow cannot constitute a joint Hindu Family with the descendants of her brother, i.e., her parental side.

The court, on this, relied on the Section 15(1)(d) of the Hindu Succession Act to hold that heirs of father of a Hindu female are not strangers but are a family.

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