Analysis

Divorce laws in South Asia: An observation

Rajeev-Shabeena

Dr. Rajeev Kumar Singh and Shabeena Khan

Divorce is a nasty affair which leads to the breakdown of the institution of marriage. It fades away the initial charm of a newly married life and leaves behind the painful memory of life the couple once had.

In patriarchal society, a married woman is hardly queen or head of the family, not even for a day, nor does the realm of family offer them any substantial say in the affairs of the family. Rather women thinking of terminating their marriage are considered to be corrupt and told to live with it as she was destined to merit with this loss and find a solution within the marriage.

Over and above, a section of society often poses questions like this: You have lived most of your life with Mr. X, why can’t you spend the rest with him? While making this type of ‘(in)famous’ opinion, they tend to ignore a fact that husband and wife are considered to be the two pillars of the sacred institution of marriage and have equal power to be in relationship. Unfortunately, divorce is the only answer to end a loveless relationship.

In legal terms, divorce means a decree of dissolution of marital relations, rights and obligations thereof. It’s a process through which the marital bonding ceases to be in subsistence in the eyes of law and the couple departing from the marriage remains no longer in a courtship. Hence, it allows the divorcees to marry again.

In this context, it bears relevance to shed light on the legal arrangement over divorce in South Asian states of India, Nepal, Pakistan and Sri Lanka. The legislations unanimously prescribe optimum room for reconciliation and consider divorce as the last resort.

In India, there are plethora of Acts which in one way or the other deal with the issues of divorce and it includes Hindu Marriage Act, 1955; the Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956, the Hindu Adoptions and Maintenance Act, 1956; the Parsi Marriage and Divorce Act, 1936; the dissolution of Muslim Marriage Act, 1939; the Special Marriage Act, 1956; the Foreign Marriage Act, 1969; and the Dissolution of Marriage and Judicial separation (under the Indian Divorce Act, 1869).

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While acknowledging the diversity prevalent in Indian society, the higher judicature has laid down popular judgements respecting the moral values with a view to nurture the concept of religious pluralism.

In this light, marriage is overwhelmingly regarded as a sacrament in Hindu law but at the same time it’s considered to be a contract in Muslim law. The bond of matrimony was and is regarded as a permanent bond among Hindus and departure from marriage was and is (generally) regarded improper. Nonetheless, Section 13 of the Hindu Marriage Act provisions a long list of grounds paving the ways for the dissolution of marriage by a decree of divorce on the grounds which include: adultery, cruelty, desertion, mental disorder, disappearance/presumption of spouse’s death, and conversion of religion.

Divorce in Islam takes a variety of forms—some initiated by the husband while the other initiated by the wife. In this connection, the main traditional legal categories are: Talaq (repudiation); Khula (mutual divorce); judicial divorce and oaths.

Notably, the practice of divorce in letter and spirit varies (according to time and place) in the Islamic world. Historically, the rules of divorce were governed by Sharia jusriprudence and the Islamic scholars used to ride the same rope despite they belonged to different school of thoughts. Sadly, historical practices, at times, fail to build nexus with established legal theories.

Fortunately, family laws are codified in modern days, and the legal provisions more or less remain “within the orbit of Islamic laws.” Still, what annoys many is that the control over the norms of divorce has been shifted from traditional jurists to the state.

In contrast, the 1961 Muslim Family Laws Ordinance of Pakistan slams vocal utterances of divorce. The Ordinance mandates that the husband uttering the statements ought to provide notice to the local bodies or the district registration office. Afterwards, a copy of the notice is provided to the wife. Then a notice is provided from the authorities to couples concerned, giving them the opportunity to make utmost efforts for reconciliation. Yet if there is no reconciliation for 90 days, following the initial registration of notice, then the only solace left is divorce and it’s confirmed.

In South Asia, the concept of joint family prevails from time immemorial. But over the years, the rampant increase of divorce rates poses a threat to the institution of joint family. Misunderstanding among family members or the tendency of leg-pulling often paves the way for the disgruntled partner to root for divorce.

Unlike Pakistan, the newly enacted Civil Code of Nepal envisages that any of the spouses is entitled to seek divorce at any time. The respective provisions envision that a woman or man may file for a divorce if her husband or his wife has been living separately for three consecutive years without his/her consent, has detested his/her from house without providing food and shelter, is convicted of marital rape, or caused physical or mental cruelty; is found engaged in extra-marital affair and has married for the second time.

Like the Indian statutes, the Code has a welcome provision which suggests the Court to make utmost efforts for reconciliation between the parties in question. However, if reconciliation could not be realised, the Court will proceed by executing the partition of the property they have. More so, any of the spouses may file a petition at the Court within three months of the decree of divorce if s/he believes that s/he was cheated.

However, the Muluki Ain (National Code of Nepal) under Chapter-12 provided that “a party willing to dissolve the conjugal relation or both the husband and wife in case they desire to dissolve the relation with their mutual consent shall file a petition to the Village Development Committee or the Municipality concerned, as the case may be, and such Village Development Committee or the Municipality shall, to the extent possible, convince both the parties and make them have compromise. If such compromise shall not be reached even upon so convincing and reminding them and if it shall be better to let the relation dissolved than to maintain the marriage, it shall, within one year of the filing of the Petition, forward the received Petition, accompanied by its opinion too, to the District Court concerned having authority to dissolve the relation.”

Similarly, in Sri Lanka, the Marriage Registration Ordinance, 1907 provides that a husband or wife may bring suit for the dissolution of marriage on the ground of adultery subsequent to marriage; malicious desertion; or incurable impotence at the time of marriage. The legal arrangement—more or less—mirrors the position of India and Nepal.

Despite this, there is something which is called mutual consent divorce that is relatively easier, and speedy in nature to materialise the divorce. Interestingly, this mode of divorce has a universal application.

Causes of divorce

It’s a solemn duty of both partners to maintain the sanctity of the wedlock. Women have all the rights to disapprove the outdated idea that women are the slaves of men or a commodity to be exploited.

The amount of dowry expected to be given by bride’s family to the groom’s family often leads to the infliction of cruelty over the brides (on the non-fulfilment of conditions forwarded by the husband’s family). And cruelty is one of the grounds of divorce.

Ironically, media reports reveal that the considerable numbers of grooms (in India) ask the bride’s family to finance the honeymoon. This financial aid (or scheme) constitutes the part of dowry in India.

Conversely, the marriage solemnised through deception or under fraudulent impression is yet another cause of divorce.

Also, the harassment of any kind is one of the major causes. Unsurprisingly, women are the easy victims of harassment. For instance, a woman feel mentally harassed at a time when her family members start tormenting her [bride] by different names, like, kalmuhi (dark-skinned), naagin (snake); or daridra (beggar). The husband’s family members at times raise eyebrows in all household chores she does for them—just to “prove” that she is good for nothing.

In South Asia, the concept of joint family prevails from time immemorial. But over the years, the rampant increase of divorce rates poses a threat to the institution of joint family. Misunderstanding among family members or the tendency of leg-pulling often paves the way for the disgruntled partner to root for divorce.

Yet, there are bitter realities which go against women.

These days, a wife expects her husband be just like her puppet and be ready to dance her tune. The brides often demand royal treatment for her mother, brothers or other family members (from the groom). But, they [brides] remain reluctant to pay the same respect to her husband’s family members. This is yet another reason which creates conducive ground for misunderstanding and divorce.

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Time for reformation

The archaic mindset in South Asian society often perceives divorced woman and her children with evil eyes. For a section of society, a divorced woman and her children are public property; a fair shot for anyone to pass comment on.

It’s high time to realise that time is changing. The people (of the age we live in) are rational creatures and they know that life does not begin and end with marriage or divorce. A woman has also the right to live alone, the way some men live.

Still, divorce should not be promoted in the society. The focus should be on building the bridges of love, tolerance, co-existence, spiritual devotion, and harmony among peoples of diverse faiths and socio-economic status.

Dr Singh is a faculty member at Constitutional Law in Uttaranchal University, Dehradun and Ms Khan is student of LL.M (Constitutional Law) at Faculty of Law College Dehradun (Uttaranchal University).

Published on April 2, 2018

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