DIVORCE, FAMILY & MATRIMONY DISPUTES
At Nyay law firm we understand that the family comes first. We are pleased to introduce ourselves as a consultant for family oriented problems, and we are exclusively dealing with divorce laws. We provide consultation for divorce laws, domestic violence and other family related problems. This office is comprised of advocates, socialist, counselors etc who render their services after proper analysis of the problem arising out of family disputes or marriages etc.
But where both parties mutually agree that they want to divorce, a petition may be presented on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
1. TYPES OF MARRIAGES
a. Hindu Marriage: The Hindu Marriage Act 1955, applies to the persons who, by religion, are Hindus, Buddhists, Jains and Sikhs and also to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that such person would not have been governed by the Hindu Law, if this Act had been passed.
Divorce: The Hindu Marriage Act, 1955, prescribes the manner and the grounds on which a marriage may be dissolved. The validity of any custom recognizing the right to dissolve a marriage is also expressly mentioned in the Act. Under these circumstances, it would not be necessary for the parties to go to a Court of law to obtain divorce on grounds recognized by custom. But the custom must be a valid and recognized one.
b. Muslim Marriage: "Offer" and "Acceptance" are the two essential elements of valid marriage under the Muslim Personal Law. Firstly there should be a proposal or offer made by or on behalf of one of the two parties; and secondly there should be an 'acceptanc' of such proposal or 'offer' by or on behalf of other party. But what is important is that the 'offer' and 'acceptance' both must be expressed in the same meeting. And the 'offer' and 'acceptance' have to be made in the presence and hearing of two male witnesses, or one male and two female witnesses. Under the Muslim Law two female witnesses are equal to one male witness. These witnesses must be adult Mohammedans of sound mind.
Divorce: There is a general feeling that the divorce under the Muslim law is very easy and very common. With all humility, this author does not agree with this notion prevalent in the minds of the general public. Islam, infact, with its realistic and practical outlook on all human affairs, does recognized divorce, but only as a last resort, or as a necessary evil, inevitable under certain compelling circumstances. Quoting from Prophet's saying: Of all the permitted things, divorce is the most abominable with God'.
Muslim marriages are to a large extent governed by conventional norms rather than legislative provisions. And that is why a Muslim husband, if not a minor or of unsound mind, can divorce his wife at any time without assigning any reason. This kind of unilateral dissolution of marriage is called Talaq, and can be oral as well as in writing. Divorce, may also be affected by mutual consent of the parties to a marriage, which is known as khula or divestiture and Mubara at. However, now after the passing of the Dissolution of Muslim Marriage Act, 1939, a Muslim woman, may, also obtain divorce under the Act.
c. Christian Marriage: Until promulgation of the Indian Christian Marriage Act, 1872, the law relation to solemnization in India of marriage of persons professing the Christian religion was guided by two British Acts. The Divorce Act, 1869 deals with dissolution of a Christian Marriage. These two Acts, (Indian Christian Marriage Act 1872, and Divorce Act, 1869) should be read together, as both these Acts are supplementary to each other, Later on, both these Acts were considered out-dated and the Government, therefore, referred the matter to the Law Commission. After eliciting public opinion, the Law Commission in 1961, in its 22nd Report suggested thorough revision of the Two Acts. On the basis of the said report submitted by the Law Commission of India, a Bill entitled 'Christian Marriage and Matrimonial Causes Bill' was presented in the Parliament in the year 1962. Unfortunately, when the parliament dissolved, that bill also lapsed, and so no improvements could be brought for Indian Christians.
Among the Indian Christian, Marriage is regarded as a Civil Contract, though it is usually solemnized by a Minister of religion licensed under the Christian Marriage Act, 1872. It also be solemnized by the registrar of Marriages.
d. Special Marriage: The marriage between parties belonging to two different religion and marriage between an Indian and a foreign national are governed by the special marriage act 1954. The Special Marriage Act provides for dissolution of marriage by a decree of divorce, only if such marriage had either been solemnized under the Act or having been solemnized in any other form, but had come to be registered under this Act.
2. Divorce by Mutual Consent
There is no doubt that the fundamental duty of the particular marriage is to stay together, and to give each other the warmth and support expected by the life partners in the marriage. Every effort must, therefore, be made to protect the matrimonial home ignoring the trivial matters and petty quarrels and bickering by mutual tolerance for each other. But if it is impossible to adjust to each other's temperament and the warmth and support as also the marriage falls in its substratum and the situation is ripe and appropriate for breaking the matrimonial ties with maximum care and least bitterness. All the Hindu spouses who have been married under the provisions of the Hindu Marriage Act, 1955 are entitled to take advantage of the amendment brought in the Act. Therefore, as per section 13B of the Marriage Laws (Amendment) Act, 1976, a petition for divorce can be made in the Court of District Judge to seek relief by way of mutual consent.
3. Judicial Separation
Either party to a marriage whether solemnized before or after the commencement of the Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented. Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of the either party and on being satisfied of the truth of the statements made in such petition rescind the decree if it considers it just and reasonable to do so.
4. Custody of Children
The law regarding the custody of child is same under the law irrespective of the caste or community he is born in. Broadly speaking, the foremost law is that welfare of the child is supreme and cannot be compromised on nay account. The underlying jurisprudence is that no individual is born with a religion but into a religion, which, to put it differently, means that one is born among the people subscribing to one religious faith or the other, and is in no position to adopt a religion of his own accord. Therefore, it would not be reasonable to allow any particular personal law to govern the custody of a child when the child itself is not capable of choosing his or her religion. Thus, the welfare of the child is of paramount importance in the eyes of law. Perhaps this was the line of reasoning Allahabad High Court adopted when in a case in 1951 it awarded the custody of an abandoned child to the couple that was best suited to bring up the child in the circumstances most conducive to the development of the child abandoned by her mother in a government hospital after the delivery. The hospital record showed the woman as a Muslim, though the address was found to be fake. A Muslim couple staked their claim for adoption primarily on grounds of religion. The Court rejected the contention and while giving the child to a well to do, educated Hindu couple the Court made it clear that if the child was not taken good care of, the court would change its decision in the interest of the child.
5. Protection for Women from Domestic Violence
The Protection of Women from Domestic Violence Act 2005 has come into force. Primarily meant to provide protection to the wife or female live-in partner from violence at the hands of the husband or male live-in partner or his relatives, the Act extends its protection to women who are sisters, widows or mothers. Domestic violence under the Act includes actual abuse or the threat of abuse whether physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition. The domestic Violence Act gives protection to all Indian women from being harassed by the family. This Act initiates that a women is entitled for a residential right and alimony. Social welfare officer is appointed for each district and is given the power to take up the compliant regarding domestic violence and give protection for the women.
Once the shattering ordeal of divorce passes by and the emotional dust settles down, the maze resolves into one paramount question - how to live on, as divorce is just the end of a relationship, not the end of life. Life passes into a gear and one has only oneself to look upto at the end of the day. True, the Indian woman has arrived and is financially independent but there is still an overwhelming majority that knows nothing about independence of any kind - financial or emotional. Time can take care of emotional part but you need food to live, which is not possible without financial independence, which means after divorce an educated, devoted house wife translates into helpless, hapless, jobless divorcee. Not that this kind of helplessness is the exclusive domain of the women; even men - though few - may find themselves in, more or less, the same unenviable position. The law of maintenance is to provide succor to such individuals and to keep them for starving to death. Different personal laws deal with the issue differently and though the talk of uniform civil court keeps raging every now and then, the legislature still seems to be of the opinion that since religious practices pass into the way of life, it is proper to let even the secular social issues - like maintenance, succession etc., - be governed by the personal laws of the religious communities instead of having a common court for them.