Women in India were inbred with the thinking that they need to save their marriage, no matter what. Divorce was probably the last thing that got into their minds, even if they were facing harassment and hardships.
Then came the Indian Independence and thereafter the constitution was written. However, the scope for divorce was very less at that time, as it did not holistically recognize women’s rights. Things have changed a lot over the years, and the Indian woman of today thinks and acts quite differently. They are more independent than their predecessors. Even the divorce law in India has also seen some progressive changes.
The idea of modern-day divorce was first introduced in the year 1976. It was termed an “irretrievable breakdown of marriage” which allowed women to walk out of their matrimonial contract if it was genuinely not working out for them. The divorce law in India was then accepted as a legal remedy for men and women to end their marriage if the relationship had reached an unrepairable stage.
Important measures, including maintenance, alimony, and property rights for women, were added to the divorce law to give them financial security and protect their interests after a divorce. Additionally, child welfare was made a priority in the revision of the custody rules, giving women equality in deciding about child custody.
The divorce law in India has been shaped by several significant events and legal reforms, with a focus on the particular changes that have empowered women and led to a more equal divorce procedure.
Legal Provisions and Women’s Rights
Indian constitution is aimed at providing special protection to women. Our legal system has given special liberties to empower women.
- The Protection of Women from Domestic Violence Act, 2005: It provides legal measures to protect women from domestic abuse and violence.
- The Immoral Traffic (Prevention) Act, 1956: It aims to combat human trafficking and the exploitation of women and children for immoral purposes, strengthening legal provisions against such practices.
- The Dowry Prohibition Act, 1961: It prohibits the giving or receiving of dowry in marriage and provides legal protection against dowry-related harassment and violence against women.
- The Indecent Representation of Women (Prohibition) Act, 1986: It criminalizes the portrayal of women in a derogatory or demeaning manner and aims to prevent the objectification and exploitation of women in media and advertising.
- The Sexual Harassment of Women at Workplace (PREVENTION, PROHIBITION, and REDRESSAL) Act, 2013: It provides a framework for preventing and addressing sexual harassment in the workplace. It mandates employers to establish mechanisms for complaints, inquiries, and penalties for offenses, ensuring safer and harassment-free work environments for women.
- The Hindu Marriage Act: It is the most important legislation that governs Hindu marriages in India. It provides rules and regulations related to marriage, divorce, maintenance and custody, ensuring legal provisions for Hindu couples.
Maintenance and Alimony
The availability of maintenance and alimony is one notable advancement in divorce law in India. These rules guarantee that women have a right to financial support from their spouses, considering things like their financial requirements, the standard of living, and the spouse’s financial capabilities. This clause acknowledges the financial differences between the couple’s incomes and strives to give women post-divorce financial security.
Women will need money for their survival and dignified living after they separate from their husbands. This is where the Code of Criminal Procedure (Section 125) comes to their rescue. It states that the husband will have to bear the maintenance. However, there are a few circumstances where they can be exempted from the same.
Husbands can be relieved from maintenance if the wife is having a sexual affair with other men(s). They can also get the maintenance waiver if the wife fails to provide proper grounds for getting divorced. Also, in case of divorce by mutual consent, the wife could choose to pardon the maintenance part.
Shah Bano v. Mohammad Ahmed Khan is an excellent case study where the gap between Muslim personal law and Section 125 become highlighted. She was unable to get the maintenance in the lower courts, but finally, the Supreme Court awarded the verdict in her favour and directed the husband to pay the maintenance.
Interestingly the judgment was not ruled under Muslim personal law. The case was ruled in her favour under the Code of Criminal Procedure which is the same for all Indian Citizens. This case study revealed the gap in the divorce law in India that affected Muslim women in particular.
Source:- Mohd. Ahmed Khan v. Shah Bano Begum
The strong perception about mothers being better for kids outweighs all the exceptions. Fathers might do a lot for their children in their life, but it is the mothers who get appreciated more for what they do. Our love for mothers is always special, and we tend to be usually biased toward them.
Similar thinking has somehow managed to create an environment in our judiciary, especially in child custody cases. If you look at the statistics the percentage of child custody awarded to women is much higher than that to men. The court is expected to make the ruling by being unbiased towards gender, but it does not happen like that in most cases. The chances of women getting child custody are much higher than that of men.
Ruchi Majoo v. Sanjeev Majoo – This is an excellent case study for the above statement. The apex court ruled the verdict in favour of Ruchi. Many might argue that the verdict was unfair to her husband because the court gave priority to the child’s best interests over the child’s needs and age. The judgment seemed subjective and not according to the merits.
Matrimonial Property and Asset Division
In India, several rules and principles designed to guarantee fairness and safeguard women are used to direct the partition of spousal property and assets following divorce. The court considers the length of the marriage, financial contributions, homemaking, and childcare duties, as well as the future needs of both spouses.
The divorce law in India does not automatically favour women, but it does acknowledge their disadvantaged position, particularly if they have spent most of their lives performing household chores. Increased acknowledgment of women’s rights to a fair part of marriage assets has resulted from this awareness and shifting social norms, encouraging a more equitable division, and giving women financial security after divorce.
In the Smt. Kiran Singh v. Shri Bhushan Singh case, the Supreme Court ruled that property obtained during the marriage should be recognised as joint property regardless of whether either spouse made a direct contribution. The court emphasised the equally shared principle and acknowledged the important role that a homemaker plays in a family.
The divorce law in India now reflects a more progressive mindset and gives women more power and protection inside the country and legislation. However, the need for continued efforts to close the gap between law requirements and their successful execution must be acknowledged. These problems include ongoing economic dependence, prolonged legal proceedings, and social stigmas. These progressive developments have drawn attention in favour of women, ensuring that they are not left defenceless or disadvantaged both before and after the dissolution of marriage, despite the obstacles and gaps that persist.