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The Act
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, 1956. Other community specific legislation includes the Native Converts'
Marriage Dissolution Act, 1866 that allows a Hindu to appeal for a divorce if a
spouse converts to Christianity.
Grounds for Divorce
In most Western nations, there are approximately 16 distinct reasons for which divorces
are granted. In India, however, only five main reasons are generally accepted as
sufficient grounds for divorce.
Adultery While no formal definition of adultery exists,
it does have "a fairly established meaning in matrimonial law", namely
"the voluntary sexual intercourse of a married man or woman with a person other
than the offender's wife or husband”. While the law considers it valid grounds
for either sex, adulterous women are "judged more harshly" than men. The
various religious regulations are not unanimous on this issue. The law regarding
Hindus allows divorce to be granted on the grounds of infidelity of either husband
or wife. The Christian law, however, would traditionally not have granted a divorce
to a woman solely on the grounds of adultery. She would have had to prove another
violation, such as cruelty. A recent Bombay High Court decision "recognised
cruelty and desertion as independent grounds for the dissolution of a Christian
marriage," striking down a section of the law that allowed for an unconstitutional
distinction between the sexes”.
Desertion The three main components of desertion are the
"disruption of cohabitation, absence of just or reasonable cause and their
combination throughout three years" before the abandoned spouse may petition
for a divorce. There also must be an obvious intent on the part of the offending
spouse to remain permanently apart from the other. This statute also applies to
cases in which a spouse has been heard from for at least seven years.
Cruelty As with adultery, "the definition of
the type of behavior that constitutes cruelty varies according to the gender of
the petitioner" of the divorce. "Despite the fact that cruelty is often
equally available to husbands and wives, the way in which the law is interpreted
and applied suggests that women and men are evaluated by rather different standards".
This category includes both physical and mental abuse and neglect. A court decision
made in early May 1997 made cruelty sufficient grounds for a Christian woman to
obtain a; previously, the law required both adultery and cruelty to be proven. The
national Indian Christian community seems to have embraced this judgment.
Impotency This refers to the physical inability of the couple
to consummate the marriage or the refusal by one spouse to do so. Some cases have
established that sterility can be construed to mean non-consummation if the other
partner is not aware of the condition before the marriage.
Chronic Disease Both mental and physical illnesses are included
in this category, as well as sexually transmitted diseases. Not all religions recognize
identical diseases as grounds for divorce. Christians and Parsis do not allow divorce
for a sexually transmitted disease or leprosy while the other communities do.
Social and economic consequences of Divorce in the Indian society:
Economic: There is great disparity between
the economic ramifications of divorce between men and women. Men remain relatively
unaffected while women, especially those with children, have difficulty "providing
food, clothing and shelter for themselves and their children." The government
in urban areas usually provides some form of public assistance to single mothers,
but this service is not fully taken advantage of because most do not know of its
existence. Often a woman is not able to rely on her family for support because many
parents "feel they have discharged their obligations to a daughter by arranging
her marriage and providing a dowry." Dowries are not returned after a divorce.
Also, due to the social stigma of divorce, women find it difficult to remarry and
usually attempt to establish an independent household.
Social: While India feels that one should
have the right to divorce, it is still a highly stigmatizing action. Women are looked
upon more harshly than men in this regard. There continue to be segments of Indian
society that feel divorce is never an option, regardless of how abusive or adulterous
the husband may be which adds to the greater disapproval for women. A divorced woman
often will return to her family, but may not be wholeheartedly welcomed. She puts,
especially if she has children, an economic burden on her family and is often given
lowly household tasks to perform. There is also the risk that a divorced woman's
presence would ward off possible marriages for other daughters within the household.
Unavoidably, the overall status of the family and household are lowered by having
a divorcee living with amongst them. A woman's class and caste are a major factor
in her acceptance back into society. Women from higher classes tend to have an easier
time than middle or lower class women in returning to the social order after a divorce.
An exception to this model is the extreme bottom of the society who have experienced
little rebuff from peers after a divorce. This results from their already atypical
status in society.
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