New Rules in Divorce Laws 2023

The basic aim of any divorce law in the country is to explore the possibility of settlement and cohabitation between husband and wife. However, if the couple under no circumstances wants to re-work the marriage, divorce is granted and the marriage is ultimately dissolved. Keeping this in mind, laws relating to divorce are updated and amended frequently to ease the process of divorce. Here are the new laws on divorce in India-

SC says 6- Month waiting period for Divorce is not mandatory

The Apex Court brought significant respite for Hindu couples pursuing divorce stating that the 6-month waiting period as prescribed under Section- 13B(2) is not mandatory but discretionary, thereby, giving directions for lower courts to speed up divorce if both husband and wife agree to settle their differences including alimony, custody of the child or any other pending issues between the couple. The Supreme Court stated, “ If there are no chances of reunion and there are chances of fresh rehabilitation, the court should not be powerless in enabling the parties to have a better option.” The purpose of having a cooling-off period is to safeguard a hurried decision taken by the parties and they consider all the chances of reconciliation.[1]

In a significant ruling, a Constitution Bench consisting of Justices Sanjay Kishan Kaul, Sanjiv Khanna, AS Oka, Vikram Nath, and JK Maheshwari has determined that the mandatory six-month waiting period for divorce through mutual consent can be eliminated under certain conditions. Additionally, the Bench has established specific factors to assess when a marriage has reached an irretrievable breakdown. The Supreme Court has affirmed that it has the authority to waive the waiting period for divorce when couples have already initiated divorce proceedings in family courts. The court emphasized its power under Article 142 to issue a decree of divorce by mutual consent and also to quash and set aside other legal proceedings, including criminal cases.

Key Points from the Supreme Court Judgment on 6-month Waiting Period for Divorce :

1. Mandatory Waiting Period Not Absolute: The Supreme Court, in a recent judgment, has provided clarification on the mandatory waiting period for divorce, emphasizing that it is not an inflexible requirement.

2. Exercising Judicial Discretion: The court's decision grants them the authority to use their judgment in situations where the waiting period might lead to unnecessary hardship or impede the inevitable end of a marriage.

3. Grounds for Waiving the Waiting Period: The court has acknowledged specific situations where the waiting period may be exempted:

   • When both parties agree to skip the waiting period, they can do so mutually and voluntarily.

   • When the prospect of reconciliation becomes impossible, and the continuation of the marriage is deemed fruitless.

   • In certain situations, divorce may be necessary without delay due to extraordinary circumstances, such as instances of cruelty or abuse.

4. Protecting Individual Rights: The court's decision highlighted the significance of safeguarding individual rights, especially the right to personal freedom, particularly in situations where a marriage has completely deteriorated.

5. Caveats for Mutual Consent Divorce: In mutual consent divorce cases, the court has provided an option for parties to seek a faster resolution by requesting a waiver of the waiting period, provided both parties genuinely agree to do so.

6. Balancing the Interests of Parties: The court's decision aimed to strike a fair balance between the concerns of both individuals involved in a divorce. It sought to adopt a more adaptable approach that considers the distinct circumstances of each case.

Impact and Significance:

• The Supreme Court's recent ruling on the 6-month divorce waiting period is important because it acknowledges changing marital dynamics and the importance of a practical, individual-focused approach to divorce.

• This law helps courts grant divorces fairly and quickly, letting couples end unworkable marriages with justice.

• The judgment highlights two important things: First, it focuses on safeguarding individual freedoms. Second, it acknowledges that a marriage can end for good reasons, like when it is no longer working, which can help make divorces less bitter and lengthy.

Provisions governing law of maintenance

Under Section- 24 of the Hindu Marriage Act either of the spouses is entitled to get paid for the expenses of the legal proceedings under the Act. Under Section- 25 of the Act, the court can direct the respondent to pay maintenance in the form of a monthly payment or entire sum or even a periodical sum for a time not exceeding the life of the applicant. The other important provisions relating to maintenance are Sections- 18 and 19 of the Hindu Adoption and Maintenance Act which was amended in 2015 and Section- 125 of the Code of Criminal Procedure. [2]

Law of Maintenance for Live-in-Relationships

In cases of divorce under the Hindu Marriage Act of 1955, the court may require one party to provide financial support to the other, primarily aimed at helping women maintain their standard of living post-divorce. If the marriage isn't recognized under Hindu law, women can also seek support under Section 125 of the Criminal Procedure Code. Under the Code of Criminal Procedure, a woman in a live-in relationship has the legal right to seek financial support from her partner. However, in cases of long-term live-in relationships, the burden to prove a marriage is reduced. Under the Protection of Women from Domestic Violence Act, a wife or live-in partner who may not qualify for remedies under the Criminal Procedure Code now has the option to seek legal recourse. Furthermore, this Act offers the possibility of more robust remedies compared to what the Code of Criminal Procedure provides.

Key Points from the Supreme Court Judgment on Maintenance for Live-in-Relationships:

1. Recognition of Maintenance Rights for Live-In Partners: Indian courts have upheld the right to financial support for live-in partners, expanding the scope of maintenance rights beyond formal marriages.

2. Criteria for Entitlement: In order to qualify for maintenance support, individuals in a live-in relationship need to establish that they have cohabited for a substantial duration and have jointly assumed financial obligations, similar to married couples.

3. Economic Support and Essentials: In a live-in relationship, if one partner wishes to seek financial support from the other, they must demonstrate their economic dependence. This dependency often arises from factors such as quitting their job for the relationship or lacking any means of financial support.

4. Legal Precedents and Cases: Indian courts have grappled with a range of cases concerning maintenance within live-in relationships, establishing crucial legal benchmarks and offering valuable insights into the resolution of maintenance-related concerns.

5. Protection Under Domestic Violence Laws: When living together, partners can also request support under the Protection of Women from Domestic Violence Act, 2005. This law safeguards their rights by providing financial assistance, a secure residence, and protection from any form of violence.

6. Challenges and Debates: The maintenance rights within live-in relationships remain a topic of ongoing debate and dispute. These deliberations primarily revolve around two key aspects: firstly, the duration of the relationship necessary to establish eligibility for maintenance, and secondly, the extent of financial support to be granted in such circumstances.

“ Irretrievable Breakdown Theory” of Marriage

There have been many instances where couples are cohabiting but their marriage is equivalent to separation and there is no classified law for this. In regard to this, a Report by the Law Commission as well as the Supreme Court was directed to the Government in 2009, in order to add irretrievable breakdown of marriage as a valid ground for divorce under Section- 13 of the Hindu Marriage Act, stating wisdom lies in accepting the pragmatic reality of life and thus, must take a decision which would ultimately be conducive for the common betterment of both the spouses. These recommendations had resulted from the case Naveen Kohli v. Neetu Kohli after the couple proved that there was no reasonable chance of getting back together after the marriage broke down.[3]

In a recent ruling, a constitutional bench of the Supreme Court has affirmed that divorce can be granted in cases of an & quot irretrievable breakdown& quot of a marriage without the need to involve a family court. This decision emphasizes the importance of public interest in ending a & quot dead marriage,& quot where the relationship is beyond repair and reconciliation. Under the previous process, couples had to wait for at least six months while going through the family court system, either through mutual consent or by presenting accusations against each other. However, this ruling streamlines the process, allowing the Supreme Court to grant divorce directly in such cases of irreparable marital breakdown. The Supreme Court can skip the waiting period for couples who have already started divorce proceedings in family courts. They can do this by using Article 142, which allows the Supreme Court to dissolve marriages through mutual consent and stop other legal actions, like criminal cases.
 

What is SC's Judgement?

• Judgement:In 2023, in the Shilpa Sailesh vs. Varun Sreenivasan case, the Supreme Court established its authority to end a marriage if it is beyond repair. This means that the court can skip the usual six-month waiting period for divorce as per the Hindu Marriage Act of 1955. Even if one party is not willing, they can grant a divorce when the marriage has irretrievably broken down.

• FACTORS TO ESTABLISH BREAKDOWN

  1. Duration of Cohabitation: It is essential to consider the period the couple spent living together following their marriage.

  2. Last Cohabitation Date: Identify the last date on which the individuals cohabited as a married couple.

  3. Allegations and Conflicts: any claims or disputes brought forth by either party or their respective families throughout the course of the relationship.

  4. Legal Proceedings: any prior court orders or judgments pertaining to the couple from past legal proceedings.

  5. Dispute Resolution Efforts: Evaluate if the couple attempted to resolve their disagreements either through legal proceedings in court or through mediation.

  6. Separation Period: The separation period exceeding the duration of six years.

• Significance of the Ruling:

  1. Obtaining a divorce decree can take a long time due to the backlog of similar cases in family courts.

  2. The ruling lets couples skip the waiting period and go directly to the Supreme Court for a divorce if they claim irretrievable breakdown.

  3. In accordance with a Supreme Court ruling, when reconciliation between the parties in a marriage is deemed impossible, it becomes unjustifiable to needlessly prolong their suffering.

  4. In cases where both parties mutually agree that they can no longer live together, dissolving their marriage can offer a quick and straightforward solution.

  5. It is important to note that the Hindu Marriage Act (HMA) 1955 does not currently recognize “ irretrievable breakdown of marriage” as legitimate grounds for divorce.

  6. As of now, there exists no specific legal statute addressing the concept of an irretrievable breakdown of marriage in a comprehensive manner. However, it is important to note that the Hindu Marriage Act of 1955 (HMA 1955) does acknowledge certain grounds for the dissolution of a marriage under Section 13.

• Implication of the Judgement:

  1. The recent Supreme Court (SC) judgment does not mean that individuals can simply approach the SC seeking a speedy divorce.

  2. The Supreme Court's grant of divorce based on the irretrievable breakdown of a marriage is not an automatic entitlement but a decision that must be made with careful consideration and prudence.

  3. The Supreme Court made it clear that you cannot directly file a writ petition under Article 32 (or Article 226) of the Indian Constitution to seek a divorce based on an irretrievable breakdown of marriage

Marriage Laws (Amendment) Act, 2013

This amendment can be a boon in terms of maintenance as it entitles wives to the husband's share of the immovable property that he acquired in the course of their marriage in cases of irretrievable breakdown of the marriage. However, this benefit is only restricted to cases of & lsquo irretrievable breakdown of marriage' and not in other cases of Divorce. Under Section 13F of the Amendment Bill, the wife has the right to claim a share in the property acquired by the husband either before or after their marriage. The Bill applies only to irretrievable breakdown of marriage and not in other cases. Further, the Bill also states that a woman has the right to oppose the divorce citing financial difficulties, while the husband does not have the option to do so.

Related Post: Divorce Laws in India

1. Property Rights for Wives: In cases of a divorce, the said amendment allows wives to claim a portion of their husband's property that was obtained during the marriage. This provision is designed to help with their financial support and security.

2. Limited to Irretrievable Breakdown: This benefit only applies when a marriage has irreversibly broken down, not in other divorce situations with different causes for the marriage ending.

3. Section 13F: Section 13F of the Amendment Bill states that a wife can claim a share of her husband's property, regardless of when it was acquired. This rule aims to offer financial protection to wives in case divorce.

4. Right to Oppose Divorce: The Bill allows women to object to divorce if they are facing financial hardship and cannot support themselves. Husbands do not have the same right.

5. Impact and Significance: The Marriage Laws (Amendment) Act of 2013 has a primary goal: safeguarding the financial well-being of wives when marriages irreparably break down. This law acknowledges the significant contributions of wives during marriage, particularly in terms of their roles in homemaking and providing support. Through this amendment, wives are granted property rights and the option to contest divorce based on financial limitations. This legal change aims to offer economic stability to women who might find themselves in a precarious situation after divorce. In essence, this amendment is a positive stride towards promoting gender equality and fairness in divorce proceedings.

Unconstitutionality of Triple Talaq

The pathbreaking decision by the Supreme Court where it stated that triple talaq violates the fundamental rights of Muslim women as it irrevocably ends a marriage without any hope of restoration and thus, ruling it unconstitutional. Triple talaq is an oral form of divorce practiced by some sects in the Muslim community to instantly divorce their wives by saying & lsquo talaq' thrice. It is now the responsibility of the center to pass the Triple Talaq Bill and come out with a law to regulate marriage and divorce laws among Muslims in India.[4]

Key Points:

1. Triple Talaq as Unconstitutionality: The Supreme Court rendered a historic decision by declaring the practice of triple talaq unconstitutional.

2. Fundamental Rights Infringement: The decision of declaring triple talaq unconstitutional was because of the exploitive act of permanently ending a valid marriage without any scope for reconciliation which infringed the fundamental rights of Muslim women.

3. Practice of Oral Divorce: Triple talaq is a Muslim divorce method where a husband can instantly divorce his wife by saying & lsquo talaq' three times.

4. Triple Talaq Bill: After the Supreme Court's decision, the central government took on the task of passing the Triple Talaq Bill. This bill's goal was to oversee Muslim marriage and divorce laws in India while ensuring legal protections for women.

Impact & Significance:

1. Empowerment of Muslim Women: The Supreme Court's decision greatly empowered Muslim women in India. It upheld their fundamental rights and dignity while safeguarding them from the arbitrary practice of triple talaq.

2. Legal Safeguards: The decision resulted in the Triple Talaq Bill, aiming to protect Muslim women in marriage and divorce. It aimed to empower women in divorce cases and prevent their vulnerability.

3. Gender Justice: The decision upheld gender equality in the Indian Constitution and sent a clear message that discrimination, even within personal laws, will not be accepted.

4. Societal Impact: The decision and laws that followed it helped create positive social change by challenging outdated practices and promoting gender equality in the Muslim community.

Adultery under S. 497 IPC not Punishable

In September 2018, the Apex Court declared Section 497 of the IPC that made adultery a punishable offense for men, unconstitutional and struck it down. Earlier, it was an offense under the Indian Penal Code. It was held that punishing the person who committed adultery is arbitrary and that Section 497 was regressive as it considered a woman as a 'property' or chattel of man/husband. The Supreme Court held that it would however remain.a civil ground for divorce. [5]

Key Points:

1. Section 497 As Unconstitutional: The Supreme Court, on September of 2018, made a historic decision by declaring Section 497 of the Indian Penal Code (IPC) as unconstitutional. The said provision was abolished made “ adultery” was now decriminalized.

2. Arbitrariness: The court found it unfair to punish only the man for adultery while sparing the woman, considering it arbitrary and discriminatory.

3. Orthodox perspective: Section 497 was seen as regressive because it treated women as the property of their husbands, implying that husbands had ownership rights over their wives. This perspective was considered outdated and unjust.

4. Civil Ground for Divorce: Although, the Supreme Court has decriminalized Section 497, but it still recognizes adultery as a valid reason for seeking a divorce in civil court cases.

Impact & Significance:

1. Gender Justice: This decision greatly advanced gender equality by abolishing a legal provision that treated women as their husbands' property.

2. Individual's Freedom & Liberty: This ruling affirmed the right to personal freedom and autonomy within marriages, enabling adults to independently shape their relationships.

3. Changes in Law: The ruling sparked conversations about enhancing marriage, divorce, and family law through legal reforms, particularly aimed at promoting fairness and gender equality.

4. Societal Impact: The decision signifies evolving societal norms, recognizing that marital relationships should prioritize equality and mutual respect over notions of ownership.

Therefore, the Supreme Court's ruling to invalidate Section 497 of the IPC marked a significant milestone in advancing gender equality, personal freedom, and progressive legal changes in India's marriage and divorce laws.

Changes in the Christian Divorce Laws

In its another landmark decision, the Supreme court has last year held that the divorce granted by the ecclesiastical tribunal under Christian personal law is not valid as it cannot override the law. The ecclesiastical tribunal is governed by the Canon Law which is the personal law of Catholics. However, the court held that any Christian couple who is seeking divorce will have to mandatorily procure a divorce from a civil court. Thus, if a couple has sought marriage annulment from such a tribunal and any of the spouses remarries after the same, it will amount to bigamy. Divorce petition by a civil court is a must for Christians now.[6]

Key Points Regarding Changes in Christian Divorce Laws:

1. Supreme Court's Observations: The Supreme Court of India has ruled on a matter of significance pertaining to Christian divorce laws. The court's verdict unequivocally asserts that divorces granted by ecclesiastical tribunals operating under Christian personal law hold no validity, as they are incapable of superseding civil law.

2. Ecclesiastical Courts: Ecclesiastical tribunals, governed by Canon Law, used to manage Christian divorce cases exclusively. Nevertheless, the Supreme Court has ruled that these tribunals cannot serve as the exclusive authority for divorce proceedings.

3. Mandatory Civil Court Divorce: After a Supreme Court ruling, Christian couples must now pursue divorce through civil courts, shifting away from relying solely on ecclesiastical tribunals.

4. Bigamy Allegation: The ruling has consequences for subsequent marriages. If a couple obtains an annulment from a religious tribunal and one spouse remarries afterward, it may be regarded as bigamy. Therefore, obtaining a civil court divorce is crucial.

5. Legal Requisites: This judgment requires Christians to use civil courts for divorce to ensure the legality of their divorces and remarriages.

How can a Lawyer help you?

Divorce is a stressful time for everyone involved. Hiring an attorney to complete a divorce is one way to reduce the stress of the divorce. While the attorney will need to gather information from you regarding the case, he or she will also take care of all the paperwork, allowing you more time to take care of yourself and your family. An experienced divorce attorney can give you expert advice on how to handle your divorce owing to his years of experience in handling such cases. You can also use LawRato's Free Legal Advice service to get free advice on your case from expert divorce/matrimonial lawyers. A divorce lawyer is an expert on the laws and can help you avoid significant mistakes that may cause financial harm or will require future legal proceedings to correct. Thus, by hiring an attorney a person can make sure that he can avoid delay and get the divorce completed as quickly as possible.

References:

• [1] Six-months wait for divorce under Hindu Marriage Act waived off by SC - https://lawrato.com/legal-news/1336/six-months-wait-for-divorce-under-hindu-marriage-act-waived-off-by-sc
• [2] Maintenance Laws For Children in India - https://lawrato.com/indian-kanoon/family-law/maintenance-laws-for-children-in-india-2960
• [3] Irretrievable Breakdown of Marriage - https://lawrato.com/indian-kanoon/divorce-law/irretrievable-breakdown-of-marriage-in-india-2974
• [4] Triple Talaq banned by Supreme Court for 6 months until Parliament makes law - https://lawrato.com/legal-news/1260/triple-talaq-banned-by-supreme-court-for-6-months-until-parliament-makes-law
• [5] IPC 497- https://lawrato.com/indian-kanoon/ipc/section-497
• [6] Amendment in Christian Law - https://indianexpress.com/article/india/india-news-india/christian-divorce-law-amend-divorce-law-bjp-government-supreme-court-divorce-act-3020953

The basic aim of any divorce law in the country is to explore the possibility of settlement and cohabitation between husband and wife. However, if the couple under no circumstances wants to re-work the marriage, divorce is granted and the marriage is ultimately dissolved. Keeping this in mind, laws relating to divorce are updated and amended frequently to ease the process of divorce. Here are the new laws on divorce in India-

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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