Our nation is a common law country. The law of the land has a direct nexus and affectation on the mechanics of the society thus, to meet the changing demands of civility, law changes with time. Even though the law is in charge, but the purpose of law remains intact, that is, to serve society and promote righteousness.
Divorce is one of the concepts of law, which has undergone significant changes in the recent times. The intent of the divorce is always to promote peace. Even though marriage is supposed to be a loving cohabitation between man and women, some marriages, due to multiple reasons, get frail and the only way for couple to stay happy is to separate from each other.
The object of divorce laws is to reach a point of settlement that is mutually agreeable and beneficial for both parties to a marriage. The court grants divorce only when marriage becomes so bad that it cannot be reconciled. The new amendments are made to address the speed of the world and to expedite the process of divorce.
1- Waiving the mandatory 6 period – when the court is approached by any couple under the Hindu marriage act section 13B (2), it grants a cooling down period of 6 months. The intention behind this provision of 6 months cooling period is that the couple may reconcile in this tenure.
This is because the court always endeavours to retain the state of the family. However, the Supreme Court, in case of Akansha v. Anupam Mathur delivered the judgement that the six months period is not mandatory, but it is discretionary. Thus, in certain exigent conditions, the period can be waived off.
The supreme court thinks that it must wield the powers to grant immediate relief to the parties which seek justice. Furthermore, these powers must be used only when the marriage becomes irreversibly bad.
This discretion to waive off comes into play when the couple decided to resolve all the underlying issues peacefully. These issues include child custody, alimony, property distribution and so on.
2- Law on maintenance – section 25 of the Hindu marriage act empowers the court to grant interim maintenance. This payment can be either monthly or for a period which the court deems fit. The purpose of this provision is to support the women who rely on their husbands for their daily needs so that their standard of living can be maintained.
If the woman is not covered under Hindu law, then she may claim under section 125 of CRPC. Keeping up with the modern view, the supreme court also recognises the status of live-in relationships and the woman can claim maintenance. These rights are forwarded to the woman if the life in the relationship extended to a long period.
If the cohabitation is for a substantial period, then the woman acquires the right to be maintained. The provisions of the Protection of Women from Domestic Violence Act, 2005 also come to the rescue of the women staying in a live-in relationship. This was the ruling of the Hon’ble Supreme Court in the case of State of Jharkhand vs. Lalita Toppo (2018).
3- Irretrievable breakdown of marriage – when the spouses or partners of a live-in relationship become incompatible with living together, then under section 13 of the Hindu marriage act, they can approach the court for divorce stating it as a reason. The result would depend on the discretion of the court.
The Supreme Court also recognises the irretrievable breakdown of marriage as a legit reason for divorce. In case of Sangmitra Ghose vs Kajal Kumar Ghose, by the virtue of the powers wielded in the Supreme Court by Art. 142 of the constitution, it held that irreversible breakdown of marriage becomes a valid ground for divorce.
The Hon’ble Court also relied on the 71st law commission report. The court took the reasoning that if the couple cannot start living together, then divorce becomes the only appropriate step.
4- Adultery is merely a civil offence- adultery, in the case of Joseph shine, the erstwhile punishable offence of adultery was removed from the status of a criminal act and was established as a mere civil offence which can be a ground of divorce. the court adopted the reasoning that punishing either spouse will be of no help for the marriage.
The provision of section 497 IPC were discriminatory and a wife is not the chattel of husband.
5- Unconstitutionality of the triple talaq – for a long time, there was a very prevalent practise in the Muslim men viz the talaq-e- biddat by the virtue of spelling the word “talaq” thrice in one breath, the man can attain divorce from his wife. This practice was arbitrary and discriminatory.
It paved way to uncontrolled divorces, which lead to the harassment of Muslim women. The practice also engendered divorces without any endeavour to reconcile. Since only men can avail the benefit of this practice, it was also discriminatory against the prejudice of women.
The apex court in the Shayara Bano case diluted the status of the practice of triple talaq.
6- Christian divorce laws – the position of the Christian divorce laws is quite different from what it was earlier. The granting of a decree of a divorce to the parties is mandatory to be from a civil court and not from an ecclesiastical tribunal. This is also necessary because divorce is a right against the world.
In the case of Molly Joseph v. George Sebastian, the Hon’ble Court held the view that personal laws cannot assume an overriding effect over the codified laws. If a person procures a divorce only by personal law and marries someone else subsequently, then it would amount to bigamy lest he/she procured a decree of divorce from the civil court.
It is always the endeavour of the courts to mould the laws in congruence with the emerging needs of the society and the above-listed changes are testament to this practice.