Did you know that Indian divorce rate has doubled in the last 7 years? Phew, seems like the bubble of ‘happily ever after Indian marriage’ may burst soon! Marriages in our country are sacred, so much that the society considers it as a once in a lifetime event in a person’s life. But if statistics are to be believed, then the ‘D’ word is no longer a taboo in public these days.
Whether you blame it on westernization of our culture or the liberal attitudes of people, call it good news or bad news, the new-age Indian couples do not mind acknowledging divorce as a key to step out of their unhappy marriage.
What are the reasons why more couples are filing for divorce? Below are five reasons we can think of:
1. A social stigma? Not anymore.
There is a paradigm shift in the mindset of the people. The social stigma tag is fading away and society has realized that it is better to end a marriage, in which either of the partners is suffering. Nowadays, a divorcee can easily move in the social circle or consider the possibility of remarriage without being looked down upon and feeling embarrassed.
2. Women empowerment
Unlike the older generation women, who were dependent on their husbands/in-laws and compromised self happiness for a long lasting marriage, today’s modern women are financially independent, well-informed and don’t hesitate to secure their rights. They want to make their own decisions pertaining to education, career or marriage.
3. Less respect for marriage
Earlier, the couples bowed down to the pressures of society to make their marriage work. However, today, the couples take their relationships casually and may head to the court without trying to work on the possible solutions to save their marriages. Also, the growing number of live-in relationships, dating & matrimonial websites, social networking & digital media platforms, as well as career-minded couples has also considerably made people less tolerant and respectful of the sanctity of the institution of marriage.
These days, men and women have a strong desire to feel connected with their spouses on intellectual, emotional, professional, or sexual levels for a successful relationship. After a few months or years into the nuptial knot, if they realize that they are not compatible with each other or don’t share common interests, they may not mind bidding adieu to their marriage.
5. Charges under IPC 498A
IPC 498A was introduced to give legal protection to married women who were subjected to mental and physical harassment by her husband or husband’s relatives. However, it has been seen that in some cases that the married female and her paternal family have been misusing this act by making false cases against the husband or his family. In such a scenario, if the complaint turns out to be false, then the husband is entitled to divorce.
The alarming increase in the number of divorces in India is a fact that we can no longer deny.
Section 25 in The Hindu Marriage Act, 1955 talks about permanent alimony and maintenance wherein it says that any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by the wife order that the respondent shall pay to the applicant for her or his maintenance.
The quantum of maintenance depends and defers according to the various factors that have been described in the Section 25 which enables the court to ask the party to support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any.
However, the court should also take the income and other property of the applicant, the conduct of the parties and other circumstances of the case, into consideration. At the same time it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
Generally, the following points are taken into consideration by the courts in India before determining the maintenance:
- Status of the parties and reasonable wants of the claimant as well as her independent income and property.
- The number of persons, the non-applicant has to maintain the way she has been maintaining so far. This is a major point which determines the quantum of maintenance.
- Provisions for food, clothing, shelter, education, medical attendance and treatment, etc. of the wife
- Payment capacity and liabilities of the husband;
- When no concrete evidence or estimates of the earning of the husband, the court may get a lump sum amount for wife;
- The non-applicant to defray the cost of litigation and any amount awarded U/s. 125 Cr.PC. is adjustable against the amount awarded under Section 24 of the Act.
Thus, generally, the total amount of maintenance comes around 1/2 to 3/4th income of the husband.
However, the Section 25 of the Hindu Marriage Act also says that if the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
A codicil is a document that amends, rather than replaces, a previously executed will. Thus, it is an instrument which is made in relation to a will that explains alterations and additions to its disposition. This document is considered important as it is deemed to form part of the will. For instance, in situations a will has been made, the testator may still want to make some changes in the already drafted will.
However, for that he needs to do it through a codicil wherein he may even cancel the entire earlier will and make a fresh will. Also, he may incorporate the desired changes, or, he may alter only the relevant parts of the will suitably as well.
Thus, the scope of codicil is immense; for instance, it is very much a part of will; however, it is valid only if it is executed and attested in the same manner as a Will. From the various judgments from the Supreme Court it’s clear that Codicil is a supplementary document to the will and, cannot stand independently.
Also, any amendments made by a codicil may add or revoke small provisions that may include inter alia changing executors, completely change the majority, the gifts under the will.
How is Codicil executed?
Like will, each codicil also goes through the scrutiny regarding its execution. For instance, it must conform to the same legal requirements as the original will e.g. the codicil must have the signatures of the testator and, typically, two or three disinterested witnesses. Also, a codicil should be executed and attested like a Will as in all sense it is similar to a Will and is governed by the same rules as a Will.
Thus, though an Indian will is a static document, it can be changed through codicil over time as the circumstances in your life and your family change. Codicil basically states what items of your will you are changing. Interestingly, codicil should be kept together with Will. In situation you are making substantial changes to your will, codicil could be bad idea as it’s better to go for a new Will.
Also, as you can revoke your codicil there is no issue that you have made a codicil that is not suiting to the current situation and requirement. You just need to follow the process that you follow when writing down your Will. If you revoke your codicil, like will, it is assumed that you never had drafted a codicil at all.
When the sensational case of Vinod Kaushik vs Madhvika Joshi came up, the issue of alleged hacking of e-mail of husband and father-in-law by daughter-in-law came to limelight. The father-son duo alleged that their daughter-in-law did so to support her dowry case she had earlier filed separately with the Pune police, when the couple was staying in Pune.
Hacking the personal email of the husband or wife by the other party can also be a ground for divorce. It’s a new dimension which is being added to matrimonial disputes and divorce law. Moreover, as evidence is quite concrete and visible when such offense is done, the courts don’t face problem of believing or not believing in the evidence presented.
Divorce for breach of privacy when email is hacked
The Information Technology Act, 2000 highlights about the evidence that can be used to prove matrimonial dispute. The data can be stored in a computer, laptop, mobile phone, tablet or any other computer resource. If the collected data shows an alleged adultery by a wife, the husband would present the proof of the same from the emails, whatsapps and other social media interaction she has exchanged with her boyfriend/paramour.
However, it’s not authorized to have illegal access to the email or personal data of the husband or wife to gather the evidence. For instance, if the husband hacks his wife’s email accounts or unauthorized accesses her SMSs he is liable under the Information Technology Act to compensate his wife for the alleged unauthorized access and is liable to be punished for hacking under the Information Technology Act, 2000.
Unauthorized access of email to gather evidence
The Information Technology Act, 2000 says that the act of viewing data in another person’s computer, computer resource or mobile phone without such person’s consent is criminal offense. The law also makes it criminal to touch another person’s computer or mobile phone without their permission and holds it liable to pay compensation for the injury caused.
The ruling in the case of Vinod Kaushik v. Madhvika Joshi is important as here it was held that it’s an extension of this concept of the fundamental right to life under Article 21 of the Constitution. The concept of right to privacy was included in the relationship of marriage as well which operates within a matrimonial houses.
The party that gets the evidence accessing the data from the other party’s computer, phone and other similar devices does not come to the court with clean hands. This can negatively affect the remedies available to him or her.
Though there are a lot of complaints from aggrieved husbands and in-laws about the heavy misuse of the Dowry Prohibition Act, the Union ministry of women and child development is further contemplating to amend it and give more teeth to the law by strengthening the existing provisions and widening the definition of ‘dowry’.
However, from various judgments from the Supreme Court of India wherein several judges criticized the law, it looks though there are thousands of genuine dowry cases, thousands of cases of fake cases are also reality. The Dowry Prohibition Act has become the simplest way to harass and get the husband and his relatives arrested.
The two-judge bench of the Supreme Court, headed by Justice Chandramauli Kumar Prasad observed that in some cases bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested.
The Government may tweak the law to reduce misuse
The women and child development ministry sources say that the recent rise in the incidents of misuse of the anti-dowry law has come to the notice of the ministry. The source says that if the allegations turn out to be false, the case gets closed and for that discussions are going on about changing some provisions which are prone for misuse.
The ministry may introduce penalty and punishment for the misuse of the act. Like Section 498A of the Indian Penal Code, various sections of the Dowry Prohibition Act have also been misused. The recent judgment by the Supreme Court on the IPC 498A wherein it held that the cops must give reasons before arresting the accused has prompted the ministry to take cognizance of the misuse of the Dowry Prohibition Act.
Objections by victims of the Dowry Prohibition Act
Victims of the Dowry Prohibition Act argue that there are vague definitions of dowry and streedhan in the law. Also, as the Dowry Prohibition Act (Section 8A) states, “Where any person is prosecuted for taking or abetting the taking of any dowry under Section 3, or the demanding of dowry under Section 4, the burden of proving that he had not committed an offence under those sections shall be on him, shows that the presumption of guilt is on the man.
Also, there are various existing laws that deal with a lot of the crimes mentioned in the Dowry Prohibition Act; thus, there is duplication of the laws. Also, as there are no penalties for false complaints or perjury, many women and their families misuse the law to intimidate and harass the husband and his family members.
If your spouse has left you without giving any reasonable ground, the Hindu Marriage Act 1955 gives you remedy in the form of Section 9 under the restitution of conjugal rights. The section 9 of the HMA reads that when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply for restitution of conjugal rights.
What the aggrieved party needs to do is file a petition to the district court and on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, the judge may decree restitution of conjugal rights in his favor.
Three essential conditions for Section 9 of HMA
Firstly, one party must have withdrawn from the society of the other; secondly, the withdrawal must be without any reasonable reason, and thirdly, the aggrieved party applies for the restitution of conjugal rights. Once these conditions are fulfilled, the district court may decree of restitution of conjugal rights to bring about cohabitation between the estranged parties.
If the aggrieved party is unable to convince the district court and it founds that the petitioner is guilty then the decree of restitution of conjugal rights is not granted. An added advantage from this is that if the parties are not following the decree for cohabitation after the passing of the decree, continuously for one year, it becomes a ground for divorce under Section 13.
Reasonable grounds on which petition for Restitution of Conjugal Rights can be rejected
First, if the respondent has a ground on which he or she can claim any matrimonial relief;
Second, if the petitioner is guilty of any matrimonial misconduct;
Third, if the petitioner is guilty of such act, omission or conduct which makes it impossible for the respondent to live with him; for instance, husband’s neglect of his wife or the constant demand for dowry, etc. are some reasonable ground for wife not to join the company of her husband.
Burden of proof under Section 9 of the HMA
Burden of proof operates at two levels. Firstly, burden of proof is on the aggrieved/petitioner who needs to prove that the respondent has withdrawn from his society. Once that burden is discharged by the petitioner, it falls on the respondent to prove that there exists a reasonable excuse for the withdrawal.
If you are someone who got married under Hindu Marriage Act and after some time you cease to be India, the law applicable for your divorce would be Hindu law and not the law of the land you are living in. A recent case came to the Bombay High Court which has similar facts and the honorable court observed similar points.
Hearing a petition filed by a man against his wife, both British nationals of Indian origin, a division bench of Justices Vijaya Kapse Tahilramani and V L Achliya held that court outside India is not the competent court of jurisdiction to decide the issue of dissolution of marriage between two Hindus married in India as per the Hindu Vedic rites.
According to the court once the provisions of Hindu Marriage Act apply, they would continue to apply as long as the marriage exists and even for the dissolution of the marriage. The two judge division bench observed that the Hindu marriage gives rise to a bundle of rights and obligations between the parties to the marriage and their progeny as well.
The judgment from the Bombay High Court is also supported by the one passed by the Madras High Court in 2010 wherein hearing the famous divorce case of film actor R Sukanya and her husband R Sridharan, the High Court had observed that when the marriage was solemnized under the Hindu law, the proceedings for divorce also has to be made under the same Act.
Also, following the amended Section 19 of the Act, the wife is now entitled to file a matrimonial petition before a district court in whose territorial jurisdiction she is residing. The honorable court of the view that when the marriage was solemnized under the Hindu law, the proceedings for divorce has also to be made under the said Act and the respondent cannot take any exception to the proceedings in India under the provisions of the Hindu Marriage Act merely on account of his domicile being outside India.
Women can file divorce anywhere in India
Earlier in 2010, the Madras High Court gave a great respite to women in India when it held that the family court in India had jurisdiction to try matrimonial litigation even if the husband is a citizen of a foreign country and not an ordinary resident of India. Their decision was based on the amended Section 19 of the Hindu Marriage Act.
The honorable court held that Section 19 of the Hindu Marriage Act extended to outside India and the fact that the husband is residing outside the territory does not prevent the wife from applying before the local designated court to redress her grievances. If the husband does not attend the proceedings, the family court can grant divorce ex parte.
Top two grounds on which you can file a divorce
There are various grounds for divorce in India mentioned under the Hindu Marriage Act, 1955 which you may mention while filing for divorce and given the evidence you provide to the court, you are given the relief.
Cruelty: This is the most used ground for divorces in India and that’s why it has been discussed first. Any affected spouse can file a divorce case. However, if it’s wife, she can file for domestic violence case under the Domestic Violence Act, 2005 which has special provision for such crime. It can work as evidence that there is violence and cruelty on the part of the husband. Cruelty can be mental and physical injury that causes danger to life, limb and health.
Mental torture is also a kind of cruelty which is taken into consideration by the judges when they are deciding the divorce cases. A lot of judgments wherein the parties have been divorce show that issues like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act, etc. are cruelty.
Adultery: After cruelty, adultery is the second most used ground by the partners to move for divorce. Thou shall not have sex with other than your spouse has been kept in the Hindu Marriage Act as well and any act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. The law considers adultery a criminal offence and substantial proofs are required to establish when it is being used as a ground for divorce by the other party. However, as an amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce, things have become a lot easier now.
Some other grounds for divorce
Desertion, conversion to other religion, mental disorder, leprosy, venereal disease, renunciation, not heard alive, etc. are some other grounds that work as a ground for divorce.
Women in India which has a patriarchal society have been facing a lot of violence at their homes, particularly, in matrimonial site. Taking the cognizance of the domestic violence, the parliament of India passed section 498A in 1983. This was for the first time domestic violence was recognized as a specific criminal offence. This section deals with cruelty by a husband or his family towards a married woman.
Now, under IPC section 498A, you have protection from four types of cruelties:
- conduct that is likely to drive a woman to suicide,
- conduct which is likely to cause grave injury to the life, limb or health of the woman,
- harassment with the purpose of forcing the woman or her relatives to give some property, or
- Harassment because the woman or her relatives is unable to yield to demands for more money or does not give some property.
The law under Section 498A of the Indian Penal Code covers dowry-related harassment as well. If you are being harassed for dowry by in-laws or husband, the provision provides you protection and allows you to go to court to deter this kind of harassment. Though there is specific provision under section 304-B that talks about dowry death; however, you don’t need to wait for that; rather, filing a case under 498A is an apt solution.
When Can You Conclude you is being Facing Cruelty?
You can file a case for cruelty; if,
- Persistent denial of food,
- Insisting on perverse sexual conduct,
- Constantly locking a woman out of the house,
- Denying the woman access to children, thereby causing mental torture,
- Physical violence,
- Taunting, demoralizing and putting down the woman with the intention of causing mental torture,
- Confining the woman at home and not allowing her normal social intercourse,
- Abusing children in their mother’s presence with the intention of causing her mental torture,
- Denying the paternity of the children with the intention of inflicting mental pain upon the mother, and
- Threatening divorce unless dowry is given.
What are Other Laws that Provide Protection against Domestic Violence?
Apart from 498A, the parliament of India also passed the Protection of Women from Domestic Violence Act 2005 to protect women from domestic violence. The law was brought into force by the Indian government from October 26, 2006 and as of November 2007; it has been ratified by four of twenty-eight state governments in India e.g. Andhra Pradesh, Tamil Nadu, Uttar Pradesh and Odisha.
Protection orders – The DVA gives ample opportunities for both parties to put their evidence and once it is satisfied that a prima facie case of domestic violence has taken place or is likely to take place, passes a protection order in favor of the aggrieved person. The order prohibits the respondent from the following acts:
- Committing any acts of domestic violence
- Aiding or abetting in the act of domestic violence
- Entering the place of employment of aggrieved person or if the person is child, its school or any other places
- Attempting to communicate in any form including personal, oral or written, electronic or telephonic contact
- Alienating any assets, operating bank account, bank locker held or enjoyed by both parties jointly or singly by the respondent including her stridhan
- Causing violence to the dependents, or other relative or any other person who give the assistance to the aggrieved person or
- Committing any other acts specified by the protection officer
Residence orders – Under this option, the magistrate after hearing the both parties and after getting convinced that a domestic violence has taken place passes residence order:
- Restraining the respondent from dispossessing or in any manner disturbing the peaceful possession of the shared household
- Directing the respondent to remove himself from the shared household
- Restraining the respondent or his relatives from entering any portion of the shared house hold where the aggrieved person lives
- Restraining the respondent from alienating or disposing of the shared house hold or encumbering it
- Restraining the respondent from renouncing his right in the shared household
- Directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her or to pay rent for the same if the circumstances so require.
Monetary relief – The third option available for the victim is go to court and ask for monetary relief. The magistrate may direct the respondent to pay monetary relief to meet the expenses of the aggrieved person and child if any. It may include:
- Loss of earnings
- Medical expenses
- Loss caused due to destruction or removal or damage of any property
- Pass order as to maintenance for the aggrieved person as well as her children if any
The Government of India taking cognizance of the situation wherein millions of women were being and still being victimized of domestic violence passed the Protection of Women from Domestic Violence Act 2005. This is an Act of the Parliament of India which aims to protect women from domestic violence which came to action from October 26, 2006 soon after it got the assent from the President.
The Domestic Violence Act or DVA has been quite successful as a lot of women have come up to file the criminal cases against the perpetrators and many of them even got swift justice.
Scope of the Law
Over the years, the scope of the Domestic Violence Act has been widened up. For instance, whereas the primary aim of the law was to provide protection to the wife or female live-in partner from domestic violence at the hands of the husband or male live-in partner or his relatives, the latest decision by the Madras High Court says that complaints under the Protection of Women from Domestic Violence Act, 2005, need not be made only against men.
The Madras High Court held that the legislation does not insulate women from being accused of offences mentioned under it, the protection for a woman also is against another women like sisters or mother-in-laws. This is quite new interpretation for the law which has traditionally been providing protection to women living in a household such as sisters, widows or mothers from men but was silent about the violence from the women in the house.
The Domestic Violence Act includes actual abuse or the threat of abuse whether physical, sexual, verbal, emotional or economic and according to the law harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition – this part is in addition to the Dowry Prohibition Act which is already available for women. Thus, the victims of dowry harassment have been given additional protection in the DVA.
Widening the Scope of Domestic Violence
As has been mentioned above the scope of ‘domestic violence’ has been widened to great extent in the Act as it includes actual abuse or the threat of abuse that is physical, sexual, verbal, emotional and economic. Worth to mention is threatening the woman by not paying her food or goods of day to day requirements too can be domestic violence. Additionally, if the man is harassing the woman for dowry or demands the same from her relatives, it would amount to domestic violence.
The Protection from Domestic Violence Act, 2005 is available for those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household. The cohabitation may be consanguinity, marriage or a relationship in the nature of marriage, or adoption. Widening the scope, the legislators also included the women living together as a joint family like sisters, widows, mothers, single women, etc.
The DVA 2005 Assures Right to Secure Housing
A lot of women were facing a dilemma when they were forced from their in-laws’ house and were unable to claim property rights at their parental property before the amendment of the Hindu Succession Act, 2005. However, not just the Hindu Succession Act ensures women a part in the ancestral property but the DVA 2005 also ensures the woman’s right to secure housing as it provides for the woman’s right to reside in the matrimonial or shared household.
Interestingly, the right to reside in matrimonial or shared household is going to exist whether or not she has any title or rights in the household.
The Court Can Pass Prohibition Order against Abuser
The ambit of the DVA 2005 is not limited to punishing the abuser but also passing relief to the victim by the way of protection orders that prevent the abuser from aiding or committing an act of domestic violence or any other specified act. The prohibition order may stop the abuser from entering a workplace or any other place frequented by the victim. The court may also pass prohibition order to stop the abuser from attempting to communicate with the abused, isolating any assets used by the parties and causing violence to the abused, her relatives and others who provide her assistance from the domestic violence.
Breach of Protection Order
When the court passes the prohibition order, and the abuser breaches it, then, it becomes a cognizable and non-bailable offence punishable with imprisonment for a term which may extend to one year or with fine which may extend to twenty thousand rupees or with both.
Thus, the Domestic Violence Act is not just about protecting women from domestic violence but also about providing them right to shelter and right to live with dignity which has been ensured to them under the Article 21 of the constitution of India.
There is a provision in Hindu Marriage Act, 1955 under section 24, called, ‘maintenance pendente lite and expenses of proceedings’. The section says that where in any proceeding under this Act it appears to the court that either party is in dire need of financial needs financial support to bear expenses, it may award maintenance while proceedings are going on.
However, to attract this section, the party must file an application asking for maintenance and convince the judge to get monthly expenses during the proceedings. Depending upon the requirement and the earnings of the respondent, the court decides what is the reasonable amount should be awarded.
There are precedents as well for such cases; one of them is Sudeep Chaudhary vs Radha Chaudhary wherein it was held by the Supreme Court of India that wife is eligible for interim alimony as well. In a recent case, the Bombay High Court held that a family court can pass an ex parte order and even direct the husband to pay maintenance to his wife and children.
Even if you are educated, you can claim maintenance
In the case of Abdul Salim v. Nagima Begam the Supreme Court held that the phrase ‘unable to maintain herself’ should not be interpreted to mean that a wife in order to claim maintenance should be an absolute destitute or should be in tattered clothes, or should be the first one out of the street to beg.
The honorable court pointed that the very fact is that she has no other means of her own other than that of her husband to maintain her adequately to entitle her to the right of maintenance.
Ex parte divorce and maintenance
The Bombay High Court observed that such orders under section 125 of the Criminal Procedure Code (Cr.PC) can be granted by the family court judge; however, they must be satisfied that there is a prima facie case for ordering maintenance. For the satisfaction the family court judge can even call for affidavits to be filed by the person applying for maintenance.
The fundamental logic behind the court’s decision was that a person approaches the court for maintenance as he or she is not in a position to maintain him or herself. Justice Bhangale held that if such a person is told that she will have to wait and will be entitled to maintenance only after considerable time, it would be difficult for her to maintain herself for years.
The High Court of Bombay paid attention to delay by husbands who avoid receiving notices, a lot of time is spent on serving notice to the husband and it becomes difficult for the applicant. The judge observed that an application can be filed under section 127 of the Cr.PC to modify or cancel the order of maintenance, if changed circumstances are pointed out.