The marriage is a sacrament for every Hindu. According to the Manu the only way to end the marriage or the relationship of husband and wife is the death of the one spouse. It is a process by which two people understand to each other and make their relationship official and permanent until the death. In the Hindu marriage, the wife is not merely a Grihpatni but also dharampatni and sadhaharmini and both husband and wife have spirituals duties. But success or failure of marriage also depends upon the relationship of husband and wife.
Conflict is found in every relationship. According to the Arthashastra, the marriage can end if dissolvent by mutual consent and should be unapproved marriage. The concept of divorce was not aware to everyone in ancient times, the people considered marriage as a sacred concept. The provision related to the concept of divorce was given by the Hindu Marriage Act, 1955. There are 1.36 million people in India are divorced. The more divorce cases are comes from the urban area. It means the people are aware from their rights. The causes of increasing divorce rate are domestic violence, effect of western culture, physical and mental abuse and so on. In Hindu marriage act, divorce has basic grounds on which the Hindu couples can seek to the remedy of divorce. There are many factors that contribute to satisfying marriage such as love, trust, sharing, respect, commitment, time, attention, willingness, partnership and many. Due to many conflicts the divorce rate are increasing.
Keywords: Marriage, Hindu, Sacrament, Divorce, conflicts, relationship, India.
- What is Marriage?
- What is Divorce?
- Theories of Divorce.
- Grounds of Divorce in India.
- Reason of increasing Divorce rate
Marriage is one of the essential sacraments for Indian especially for every Hindu. In Hindu religion during a wedding, groom and bride take ‘pheras’ or it is also known as seven ‘parikramas’ and in English we call it seven rounds or seven circum-ambulation. In Hindu marriage the seven ‘pheras’ are taken around the pure and pious fire, between the chanting of Vedic mantras, in which specific oath are recited from bride and groom.
Marriage is the joining of connecting two people in a soulful bond that is going lasts until the death. But in now a day’s marriage is or in practice is often cut short by the divorce and separation. In every marriage some conflicts are grow. Every marriages brings challenges but it is up to spouse( the husband and wife), how to handle or manage the conflict and save their relation. Sometimes husband and wife or individuals can feel dissatisfied and unfulfilled with each other in their marriage.
In past some decades, divorce rate has started taking place in India. Divorce rate has started increasing in India, but it still less than other country. In India, more the influence of western culture would come on Indian culture and somehow it was the reason of increasing divorce rate in India. There are many reasons of increasing divorce rate. Divorce is happened by the mutual consent of husband and wife and also happened through other theories.
There are many factors which need in successful and satisfied marriage such as; love, commitment, patience, respect, sharing, faith, care, willingness and so on. Both the husband and wife have to do their part. They have to save their relationship to fulfill their happy marriage life.
Hindus conceived of their marriage as a holy union. Marriage is found everywhere in the world. It is a social institution in which satisfaction of physical, social, culture, economics and psychological needs of men and women. It is a sacrament for every Hindu which purify a person. Marriage as a sacramental union implies that marriage is a sacrosanct. In the marriage, the bride and the groom exchange many promises to remain faithful to each other. Marriage is a contractual for Muslim. There are many acts regarding the marriage.
They are like:
- The special marriage act, 1954
- The Hindu marriage act, 1955
- The Hindu widow remarriage act, 1856,
- The prohibition of child marriage act,2006
The government made many acts for secures the marriage. Still there are many cases of conflict between the couples and they want divorce. It is increasing because couples are not ready to tolerate endless misunderstanding to each other.
Some theories of divorce: –
There are many different theories of divorce:-
They are like fault theory, mutual consent and irretrievable breakdown.
Fault theory: – according to this theory, marriage can be dissolved when one spouse to the marriage is responsible for the offence done against another party. The guilty party cannot seek this remedy; only innocent spouse can seek the remedy of this. And when both of the parties (husband and wife) are fault or wrong then both of then cannot seek these remedy of divorce.
In India, the fault theory works in the divorce when both parties agree to take the divorce.
Mutual consent: – according to this theory, the marriage can be ended by mutual consent. If both the parties mutually give their consents to dissolve their marriage then they can take the divorce.
Irretrievable breakdown: – under this theory, the marriage’s dissolution is happen due to the failure of the matrimonial relations. The divorce can be taken by the parties at the end when both the parties are not able or cannot manage to live together.
Marriage has been always considered as a social institution and divorce is the legal end of a marriage by a court through legal process. A divorce is a formal dissolved of a marriage. For terminating the marriage, there was an act ‘the Indian divorce act’. The Indian divorce act was drafted into the Indian legal system in the year 1869. When the couples want divorce and agree to a divorce, the courts will consider a divorce with mutual consent of both. The provision related to the divorce was introduced by the Hindu marriage act, 1955. In this Act, divorce defines as dissolution of marriage. Divorce is happened by the mutual consent by husband and wife it means the law recognizes the situation that has existed for some time and in effect says to the unhappy and unsatisfied couple: If you think that your marriage cannot continue or happy and if you both are convinced that then marriage will be dissolved or end. The Hindu married women who take divorce, they also apply for the maintenance under section 125 of criminal procedure code. Then they get the maintenance from the other spouse. So the party who is innocent they can easily approach the court and seek the remedy of divorce on this ground.
There are many different theory of Divorce like fault theory, mutual consent and irretrievable breakdown. In the irretrievable breakdown theory, the dissolution of marriage happens due to the failure of matrimonial relationship. I.e. when husband and wife are not able to live together then the divorce can be taken by the innocent spouse (husband and wife). In mutual consent, if both the spouse mutually gives their consents to end the marriage.
Grounds of Divorce in India
Under the Hindu marriage Act, divorce has the basic grounds on which the Hindu couples can seek the remedy of divorce are:
Adultery; is considered as one of the major ground for seeking divorce. It means the consensual intercourse between a husband and wife with another person (married or unmarried) of the opposite sex. The adultery concept was comes in the Hindu marriage act by the marriage laws amendment act, 1976.
In the case of Swapna Ghose v/s Sadananda Ghose and Anr, 22 July 1988, the wife found that her husband with other girl lying on the same bed. And her neighbor also confirmed that her husband has committed an offence. Here court declared that the wife gets the divorce.
Cruelty; is a concept of mental as well as physical cruelty. The mental cruelty means mentally tortured by spouse and physical cruelty means bodily injury. The physical cruelty means one party causes any bodily injury to the other party.
Desertion: – it means the permanent abandonment of one party by the other party without any reasonable justification or consent. In this ground, the rejection of obligations of marriage by one spouse.
Conversion: – if the one party converts religion to any other religion without the consent of other party, then the other party can seek the remedy of divorce.
Leprosy: – it is comes in the disease, it means it is an infectious disease of the nervous system, skin and so on. It is transfer from one person to another person. So it is consider as a valid ground of divorce.
Renunciation: – it is happened when one of the spouses decide to renunciation the world or to follow the path of the God then the other party can approach the court for the divorce. In the renunciation the spouse who walks on the path of God or who renunciation the world is considered as a civilly dead. So it is the also valid point or ground for take the divorce.
In the case of Suresh Babu v/s Leela on 11th Aug 2006; the husband converts his religion into Muslim and marries with another woman. Here wife filed a case and demanded divorce on the ground of conversion.
There are many another grounds like insanity, venereal disease, presumption of death and so on.
Remarriage of divorced person: – after the marriage gets ended and no further any petition was filed by the party against the order of the court and also the time of appeal has expired. Then that time it is assumed that both the parties are satisfied with the judgment. Then only the divorced person can get marry again.
Reasons of increasing divorce rate
- Marriage against the consent of man or woman
- Conflict between husband-wife
- Misuse of IPC 498-A
- Physical and mental abuse
- Drugs or alcohol addiction
- Misunderstanding between the couple
- Aggressive behavior of the spouse
- Demand of the dowry
- Humiliating the wife in front of his family and friends.
- Conflict between mother-in-law and daughter-in-law
- Lack of communication between the spouse
- Forced marriage
- Issues in joint family
- Women becoming financially independent
In some cases husband and wife wants to take divorce because the marriage was done forcefully or against their wishes by their parents. Our present generation is fun loving generation. They don’t know the meaning of love, relationship. They making fun of everything in fact marriage is also fun for them. The present generation has to understand the marriage is a sacrament. It is a relationship between two souls.
In marriage many conflicts are produce but divorce is not the only solution to resolve the conflict. In India the divorce rate is not too much high as compared to other nation. In our country that believes that marriages are the scared of bonds. There are many reasons for divorce. In India, the fault theory works in the matter of divorce but now a day’s the parties also follow the mutual consent. The mutual consent theory is also used by this generation. Some relationships need time, understanding and patience from the partners. Due to statistics half of the marriages will end in divorce. And if children are involved, they are suffering most.
Both husband and wife have responsibilities to build marriage and provide a stable environment for their children. In my believe, the marrying couple needs to be thoroughly briefed on the act prior to marriage pros and cons. Both husband and wife have to aware their duties regarding their relationships. For avoiding divorce the couples should understand what the biggest issues in their marriage.
Dr. Paras Dawan, Modern Hindu Law,
 The special marriage act, 1954 has recognized inter-caste and inter-religion marriage.
 The Hindu marriage act, 1955 has fixed the minimum age of marriage of the boy is twenty-one and girl is eighteen.
 The Hindu widow re-marriage act, 1856 has permitted widows to remarry.
 The act is to prohibit solemnization of child marriage and connected matters.
 Swapna Ghose v/s Sadananda Ghose,1988 : AIR 1989 CAL 1, 93 CWN 231
 Suresh Babu v/s Leela, 2006 (3) KLT 891
Author Details: Megha (2nd year student at Geeta Institute of Law, Panipat)
The views of the author are personal only.
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