Liberalization has slowly made its mark upon Indian society – the effects are amply visible when you look at the divorce rates in the country. While marriage is still considered a sacred bond by most Indians, we now have enough sense to sever those sacred bonds when the relationship doesn’t work out; instead of sloughing it out in a ruined marriage.
The divorce scenario in our country has changed quite a lot too. While a few decades back, it was primarily men filing for divorce in our country, the number of women initiating divorce procedures has risen significantly in recent years, almost equaling that of men. This has been mainly due to the government’s recognition of women’s rights, providing them with more opportunities to speak out and express themselves.
There have been many laws passed by the government too, along with historic judgments that have leveled the playing field in terms of the ease of filing for divorce for the fairer sex. In this blog, we look at some of the new divorce rules in 2021, which have played an important part in the democratization of separation procedures in our country.
Grounds for Divorce and The Fault Theory
In India, there are various divorce laws that are applied to various sections and religious minorities of Indian society. The majority of the population is governed by the Hindu Marriage Act of 1955, which applies to Hindus, Jains, Buddhists, and Sikhs. For the other minorities, laws like the Indian Divorce Act of 1869, the Parsi Marriage and Divorce Act of 1936, and the Dissolution of Muslim Marriages Act of 1939 is considered. There is even the Special Marriage Act that governs the marriage between persons belonging to two different religious communities.
What is common among all these laws though, are the valid grounds for filing a divorce. These grounds or reasons include:
- Presumed dead
- Non-restitution of conjugal rights
- Venereal disease
- Non-resumption of cohabitation
- Mental disorder
What is seen among all the laws that deal with separation and divorce in our country though – is that all of them are based on the fault theory. What that implies is that one partner in a marriage has always got to have a fault on the basis of which the divorce can be filed. The Apex court, however, has taken steps to correct this and still excises its special powers under Article 142 to grant divorces to couples who can no longer live together. This theory, called the irretrievable breakdown theory, is what we will discuss in more detail now.
Irretrievable Breakdown of Marriage
When a couple decides that they cannot live together as married partners, even though they might live under the same roof, it is called an irretrievable breakdown of the marriage. There are no laws regarding this in any divorce laws in the country, though the Supreme Court and the Law Commission have been pushing in that direction since 1978.
As of now, the Supreme Court recognizes the irretrievable breakdown of marriage as a valid ground for divorce and uses its powers under Article 142 to exercise the same. Though many don’t approve of this ground based on the ‘sanctity’ of a marriage, all one needs to do to get a divorce approved on this ground is to reach the Supreme Court, which the best divorce lawyer in Chandigarh can definitely help you with.
6-month Cool-off Period is no Longer Mandatory
Section 13B (2) of the Hindu Marriage Act, which deals with mutual divorce, requires the court to assign a 6-month period between the first and final hearing to give the couple a chance for reconciliation. The Supreme Court, in recent times though, has been waiving off this rule when it is clear that the couple has no chance of reconciliation. Now, even lower courts are expected to follow this practice and make the 6-month cooling-off period not mandatory, but discretionary.
Law of Maintenance for Live-in Relationships
The provision of maintenance for divorce settlements under the Hindu Marriage Act of 1955, has now been extended to live-in relationships too. Since live-in relationships are seen under the same lens by the law as marriage, the woman can seek maintenance from the court to maintain the same standard of living as when she was cohabiting with her partner.
The best law firm in Chandigarh, Lex Solutions, also assures that no proof of marriage is necessary when cohabitation has been going on for a long time. In such cases, they say, the woman can seek maintenance under Section 125 of the Criminal Procedure Code or under the Protection of Women from Domestic Violence Act, 2005.
Adultery is no More a Criminal Offence
While adultery is still a valid ground for divorce, it is no longer a punishable offense. The court is of the opinion that punishing the unfaithful spouse and/or their lover cannot be a way to save a marriage. This was probably one of the most celebrated decisions of the Supreme Court, as it ensures the right to choose sexual partners and also negates the stress of having to pay a considerable fine on top of divorce lawyer fees.
Unconstitutionality of Triple Talaq
Triple talaq, which was earlier used by many sects of Muslims as a way to end marriages – has been deemed unconstitutional to women’s rights. This practice, where the husband could annul a marriage just by uttering ‘talaq’ thrice, now stands abolished and is a criminal offense.
Divorce Obtained by Personal Laws for Christians Longer Valid
Unlike the best corporate law firms in India that will recommend going to a civil court to file a divorce, many ecclesiastical institutions like Catholic churches have been in the practice of granting divorce to Christians. This now stands outlawed, as the Supreme Court in the Molly Joseph vs George Sebastian case decreed that personal law cannot override civil law and only a civil court can dissolve a marriage. That means, if the person whose marriage had been dissolved at a religious institution remarries, it would be considered bigamy.
The new divorce rules in 2021 have brought about a lot of changes in Indian society. This is especially seen in the guardianship of women’s rights by the Supreme Court. The new rules have also heralded a new era of the championship of fundamental rights, which has made divorces less messy, time-consuming, and expensive.
1. Which is the top law firm in Chandigarh for divorce lawyers?
Lex Solutions is the top law firm in Chandigarh for divorce lawyers.
2. Are there any new grounds for divorce under the new rules?
Yes. As per the new divorce rules, domestic violence, dowry harassment, and child marriage are now grounds for filing for a divorce.
3.When can women previously in a live-in relationship get maintenance under the Protection of Women from Domestic Violence Act, 2005?
Women previously in a live-in relationship can get maintenance under the Protection of Women from Domestic Violence Act, 2005 only when Section 125 of the Criminal Procedure Code does not apply to them. It is best to hire a lawyer to figure out which law applies to whom.
4. Why are other courts following the new Supreme Court decisions regarding divorces when there is no law about them?
The decisions of the Supreme Court of India are viewed as precedents in our country, and as such, they can be cited or used as equal to the law. Hence, smaller courts are required to follow the precedents of the Supreme Court.