DIVORCE LAWS AND ROLE OF COURTS IN INCREASING TRENDS OF

DIVORCE RATES IN INDIA

The societal trend of increasing divorce rates in India is not only among the rich in big cities but
also among the not so affluent in small towns.
The Indian capital leads with the highest number of divorces in the country, with more than
8,000-9,000 cases every year, followed by Mumbai and Bangalore where the figures have
doubled in the past decade, hovering between 4,000 and 5,000.

Kolkata and Chennai, the bastions of tradition, are also not far behind with a significant rise of
200 per cent in such cases, according to data compiled from various state courts and the Crime
Records Bureau. Punjab and Haryana, both agricultural states, have seen an increase of 150 per
cent. Kerala, with the most literate people and the land of Gulf money, recorded an increase of
350 per cent in the last 10 years.
Earlier divorces were limited to the affluent upper class in cities. But in the last decade, more and
more middle and lower-middle class couples have been coming out of their shells to escape the
pains of a discordant family.

"A study of recent trends showed that such cases are significantly rising in small towns and
semi-urban areas. Many young couples, particularly women, have been filing petitions for
separation, which was unheard of in the 1970s," said Supreme Court Advocate K.K. Patel.
With the courts in cities and metropolises flooded with squabbling couples, the government has
created the Crime Against Women cells and Matrimonial Courts to look into such complaints.

In court, even if there's a petition for separation on mutual consent, the legal separation for a
Hindu - also Parsi and Sikh - couple takes about one year, including the six-month mandatory
gestation period allowing the duo for reconciliation.
If a petition is moved jointly under Section 13-B (1) of the Hindu Marriage Act and affidavits are
filed by both mentioning that they had been living separately without a physical relationship for
a year, the court would grant the divorce after six months.1
Muslims and Christians, however, come under separate laws with the Muslim man having the
upper hand due to the instrument of 'triple talak' as an easy way of divorce and the Christian man
allowed to file the adultery of his wife as a valid reason.

Rising of Divorce Rate in India:

There have been steady rises in divorce rates in India throughout recent decades. The causes of
marital breakdown in the form of divorce or separation in India are different from that of the
Western countries. However, many factors are associated with the rise in divorce rate in India.

The changing attitudes towards divorce have been institutionalized by various changes in laws
which have made room for divorce. Divorce legislations were influenced by the notion of

1
http://www.yourarticlelibrary.com/marriage/comprehensive-essay-on-divorce-in-india/4370/
suffering and unhappiness of the adults trapped in the so called ’empty- shell’ marriages, where
the spouses live together but their marriages exist in name only. These legislations provided
grounds for divorce and made divorce considerably easier.

Changes in value attached to marriage and conflict are important for explanation of marital
breakdown. A change in norms and values has affected the marital bond among the Indians. It
may be mentioned that the social stigma attached to divorce has been considerably reduced. This,
in fact, has made divorce easier.

Change in attitudes towards divorce is a part of the process of secularization in Indian society.
Secularization refers to the declining influence of religion. Marriage in traditional Hindu society
was considered as a sacred bond. Hinduism insisted that the bond of marriage is not only for this
life, but for many lives to come. But gradually Hindus have started taking less rigid view in this
regard due to their secular beliefs and values.

Now women take up paid employment not because of the demand for their services and benefits
extended to them for their welfare but because of their rising material expectations – the demand
for goods that their families desire. This material, aspirations can only be satisfied by both
spouses working as wage earners.

However, conflict results from the contradiction between female wage earners and the normative
expectations which surround married life. Working wives are still expected to be primarily
responsible for housework and child rearing. In addition, they are expected, to some degree, to
play a subservient role to their husbands.

The normative expectation contradicts the wife’s role as wage earner since she is now sharing
the economic burden with her husband. Conflict is arising between the spouses from this
contradiction and this conflict is leading to marital breakdown.

The various studies conducted in India give us some idea about causes of divorce. Damle in his
study found that the important causes of divorce are: domestic disharmony including quarrels
between husband and wife, ill-treatment by husband and quarrel with in-laws, barrenness of
wife, immoral conduct of wife, spouse’s inability to fulfill marital obligation due to disease and
personal nature etc. Fohseca in her study found that the primary causes of divorce are: desertion
and cruelty, adultery, impotency etc. She also observed that the legal causes of divorce are
different from the real causes. In different studies, it is found that divorce is granted on the basis
of adultery. Moreover, in most of the cases desertion is used as a ground of divorce. In this case
cause of divorce is something different.

The causes of divorce are not uniform between various social groups. Divorce is not spread
evenly across the population. The changes which have influenced the rate of marital breakdown
have not affected all the members of our society in the same way. The changes in society are
filtered through the class system. As a result there are differences in rate of marital breakdown in
different social groups. Divorce rate varies in India with the social class as well as occupational
status.

It can be concluded that the divorce rate in India has been increasing since 1960. On the other
hand, the trend of the courts is towards preventing hasty and frivolous divorce. The courts try to
promote reconciliation and prevent hasty breakups.

In vol. 17 American jurisprudence, page 154 has the following to say:

“Marriage is a relation in which the public is deeply interested and is subject to proper regulation
and control by the state or sovereignty in which it is assumed or exist. The public policy relating
to marriage is to foster and protect it, to make a permanent and public institution, to encourage
the parties to live together and to prevent separation. This policy finds expression in probably
every state in this country in legislative enactments designed to prevent the sundering of the
marriage ties for slight or trivial causes, or by the agreement of the husband and wife, or in any
except on full and satisfactory proof of such facts as legislature has declared to be the cause for
divorce. Such provision finds their justification only in this well- recognised interest of the state
in the permanency of the marriage relation. The right to a divorce exist by legislative grant, only
the marriage contract in this respect being regulated and controlled by the sovereign power, and
not being, like ordinary contract subject to dissolution by the law. As said by the Federal
Supreme Court: “other contracts may be modified, restricted or enlarged or entirely released
upon the consent of the parties. Not so with marriage. The relation once formed the law steps in
and holds the parties to vary obligation and liabilities. It is an institution in the maintenance of
which in its purity the public is deeply interested, for it is the foundation of the family and of
society, without which there would be neither civilization nor progress.”2

Various theories of divorce have been propounded from time to time such as3:-

1. Divorce at will theory-

According to this theory one can divorce one’s spouse whenever one pleases.
Mohammedan law recognises this theory and a husband can divorce his wife at will.
However, this divorce is not open for Muslim women. This theory was recognised under
Hindu Shastric Law, but Hindu Marriage act does not recognise this.

2. Frustration of marriage theory-

Under this theory , though there is no marital offence, but the marriage has been
frustrated due to physical ailment , or mental unsoundness of mind or has changed his
religion and has renounced the world or has disappeared for a very long periods. The
other party is at liberty to get the divorce.\

3. Guilt or offence theory-

2
Andrews vs. Andrews, (1903) 188 US 14: 47 Law Ed 366.
3
Sukhdev Singh (Additional District and Sessions Judge, Delhi), Hindu law of Marriage and Divorce, Universal
Law Publishing Co., New Delhi
 Under this theory, when one of the spouse commits a marital offence, the other can seek
divorce. The grounds recognised under the Hindu Marriage act are (i) Adultery (ii)
Desertion (iii) Cruelty (iv) Rape (v) Sodomy (vi) Bestiality (vii) Refusal to obey court’s
order to pay maintenance to the wife (viii) marrying an underage person. Thus, on these
grounds the divorce can be sought. Though these grounds are available to both the
parties, but under the act, some addition al grounds have been provided to wife.

4. Indissolubility of marriage theory–

In earlier period marriage was unbreakable. As per the Shashtras, marriage was an
unbreakable tie, and eternal tie. At that time, divorce was alien to the Hindus. However,
the Hindu Marriage act did not accept this provision and marriage is now no longer an
unbreakable tie or a prison. If the conditions specified under section 13 and 13 (A) and
(B) exist, the marriage can be dissolved. Thus, the Hindu Marriage act has made
revolutionary change in this regard.

5. Irretrievable breakdown of marriage theory –

Marriage according to the long-established norms in India was regarded as completely
sacramental. This holy union was considered to be indissoluble and undying in nature.
This traditional view, however, has been through a sea of change with the enactment of
the Hindu Marriage Act, 1955 owing to the neoteric concepts of divorce and judicial
separation being recognized under the law. This Act has been through various changes
while accommodating the different requirements of the society and it in this scope that
the concept of Irretrievable breakdown of marriage is to be understood.

6. Divorce by mutual consent-

Under the Hindu Marriage Act, 1955 both the husband and the wife have been given a
right to get their marriage dissolved by a decree of divorce on more than one grounds
specifically enumerated in Section 13. Section 13-B (divorce by mutual consent ) makes
provision for divorce by mutual consent on the ground that-
 Both the parties to the marriage have been living separately for a period of one
year or more.
 They have not been able to live together.
 They have now mutually agreed for the dissolution of the marriage

Bar of One Year

1. Leave of the court

Though in section 14 of the hindu marriage act, 1955 does not allows the court to
entertain a petition for dissolution of marriage before one year of marriage. However, a
proviso added to this section permits the court to allow a petition to be presented within
 one tear since the marriage solemnised upon application showing or of “exceptional
depravity” on the part of the respondent. The proviso further lays down that after hearing
the petition for divorce, if it appears to the court that leave to present the petition has been
obtained by misrepresentation on concealment of some material facts as to the nature of
the case, if the decree of divorce is to be passed, it can direct that decree shall not be
effective until expiry of one year from the date of marriage sought to be dissolved . sub –
section (2) of this section provides guidance that while grantoing leave to present petition
within one year of ,marriage, the court shall have regard to the interest of the children and
have regard to the probabilities of conciliation between the parties.

2. Notice to other party before leave “if necessary”

Section 14 of the act mandates that application should be in accordance with the rules
framed by the concerned High Courts and it has been noticed that several High Courts
have framed rules for granting/refusing prior leave. For example, Delhi, Himachal
Pradesh and Madhya Pradesh High Courts require notices being served on the respondent
before leave is granted. Some other High Courts instead give opportunity to respondents
to challenge the order granting leave on the ground that it has been obtained by
misrepresentation or by making concealment of facts before the court. Most of the High
Courts under their rules permit granting of leave ex parte.

3. “exceptional hardship” and “exceptional depravity”-

Though no petition cane entertained before one year of solemnisation of marriage,
however, in a case of exceptional hardship and exceptional depravity, the court is
empowered to entertain the same. The section does not define these terms and it has been
left to the wisdom of the court to treat or not to treat a case of exceptional hardship or
exceptional depravity. It depends upon the facts and circumstances of each case and no
general rule can be framed in the regard. It is only prima facie case of exceptional
hardship; the petitioner is required to show at the time of presenting the petition before
one year of marriage and need not prove it at this stage. Though these terms have not
been defined but the ordinary lexicon meaning of the three words, ‘exceptional’ ,
‘hardship’, and ‘depravity’ may be borne in mind.

4. Waiver of statutory period of one year under section 14 of the act viz-
A – viz divorce by mutual consent under section 13B(1) of the act. Under section 13 of
the act, the court is empowered to waive statutory period of one year filing a petition
provided the petitioner is able to satisfy the court that there has been exceptional hardship
to the petitioner to the petitioner or of exceptional depravity on the part of the
respondents. If the court is satisfied with the same it can grant permission to file the
petition before the lapse of statutory period of one year , which has been prescribed under
section 13B(1) of the act can be condoned under section 14 of the Act or not. Under
section 13B(1) of the act, it is one of the requirement that there has been a separation of
one year before filing of the petition for mutual divorce. If both the provisions are
analysed, it is noticed that under section 14 of the act, the court is empowered to condone
the period of one year for filing the petition if it satisfied that there has been ‘exceptional
hardship” to the petitioner or “exceptional depravity” on the part of the respondent. On
the other hand under section 13B (1) of the act before filing a petition for mutual divorce
there should be a separation of one year. On the face of it, both the provisions operate
independently and they are complete in themselves under section 13B (1) of the act, it is
one of the requirement of section itself, whereas under section 14 of the act, it is an
independent provision which empowers the court to marriage.