As India possesses a very deep history of family values, there have been drastic changes in its social fabric over the years. Marriage is still considered to be a sacred institution; however, there are large discussions about the rising Indian divorce rate. In this blog, we go through the current trends of divorce, the legal framework of divorce in India, the social factors that have led to the growth of more divorces, and how these changes are changing the form of the Indian family.
Understanding the Divorce Rate in India
The divorce rate in India has been on the rise steadily in recent years. Though it’s much lower than it is in Western countries, divorces are on the rise in metropolitan cities and among the younger generation is becoming a trend. The divorce rate in India stands at a staggeringly low 1 per cent, as per surveys and studies, but it isn’t so. For over a decade now, the divorce rate has been reported to rise by almost 30–40% in urban areas.
However, the actual number of divorces can be higher as the cultural stigma attached to divorce in India can keep people away from pursuing it, and thus, they don’t show up in statistics. It is also good to know that the divorce rate can be very variable in one region, one income group, or one religious group compared to other regions, income groups, or religious groups.
Factors Contributing to the Rise in Divorce Rates
The causess of the increasing divorce rate in India are many. The rise is happening despite the fact that we still live in a society where divorce is taboo in many parts of the country, but increasing urbanisation, societal norms becoming different and changing gender roles are playing a huge role in that. Some of the primary reasons include:
- Changing Social Norms: Divorce in Indian society, but especially rural, has for some time been frowned upon. With urban centres growing, changing perceptions and exposure to global cultures, divorce is increasingly being viewed as a way out for couples who are unhappy in their marriage.
- Economic Independence of Women: It would appear that increasingly money-independent women are one of the key reasons behind the rise in divorce rates. As more women enter the workforce and become financially independent, many don’t feel financially dependent on their husbands anymore. It then gives them the courage to go for divorce if the marriage is no longer working.
- Gender Roles and Expectations: Indian marriages were traditionally characterised by traditional gender roles, where women used to stay at home for household chores and men for work. With time, though, gender roles have changed, and many couples find it hard to live up to the expectations of the role they have to take. That change has its own level of conflict, which can result in divorce in a few instances.
- Marriage at a Later Age: More and more in recent years, the trend of delaying marriage to finish education and a career has been increasing. Those who marry later in life are likely to be settled with a job and self sufficient. However, this new way of thinking also means that a person will no longer tolerate unhappiness in his marriage and will have more reason to divorce because of it.
- Infidelity and Lack of Emotional Compatibility: India, as it turns out, is no exception either when it comes to infidelity, one of the leading causes of divorce worldwide. Because of greater online accessibility and shifting values in the perception of fidelity, more people are breaking the trust of a marital relationship and engaging in extramarital affairs, meaning more emotional and physical betrayal is occurring. Besides, incompatibility on the emotional level and communication problems is the reason for irreconcilable differences.
- Mental Health Issues: We are living in a fast world, and stress, anxiety and other mental health issues are increasingly affecting Relationships. A lack of understanding and support results in a stressful married life, emotional breakdowns and divorces.
Laws Governing Divorce in India
The large and varied Indian population gives rise to a pluralistic society and makes Indian legal system treating divorce diverse and complex. Divorce laws in India vary from individual to individual due to religion, as personal laws are primarily the ones deciding the same. This implies different legal processes and grounds for the Hindus, the Muslims, the Christians, the Parsis and all other religions. Below is a detailed explanation of the laws governing divorce in India for different communities:
1. Hindu Marriage Act, 1955
In India, the most widely applicable law for divorce is the Hindu Marriage Act 1955 for Hindus, Sikhs, Jains and Buddhists. The Act aimed to govern marriages and divorces within the Hindu community on the principles of fairness and equality. Under this Act, a divorce can be granted on the following grounds:
- Adultery: A spouse has sexual relations with someone other than the spouse, and the other spouse is seeking divorce.
- Cruelty: The grounds for divorce are any form of cruelty, physical or mental, towards the other spouse. Domestic violence, abuse or harassment could be included in this.
- Desertion: One spouse may file for divorce if he/she has left the other without reasonable cause for a continuous period of not less than two years.
- Conversion to another religion: According to this law also, if any spouse converts to another religion and gives up Hinduism, it is a valid ground for divorce.
- Mental illness: With respect to mental disorder, if one spouse finds the marriage intolerable because the other spouse is suffering from a mental disorder, the spouse who is suffering from the disorder cannot prevent the other spouse from filing for divorce, even if the decree of divorce may seriously harm the spouse suffering from the mental disorder.
- Venereal disease: If an infected spouse has a venereal communicable disease, the other is entitled to divorce.
Thus the marriages can be dissolved only by a decree of divorce granted by a court on the grounds specified in the Hindu Marriage Act.
When spouses do not want to pinpoint the fault with each other, there is an option of Mutual Consent Divorce, wherein both husband and wife want to end their marriage amicably. In this case both are in tandem with respect to the terms and conditions of divorce and file a joint petition for doing so. There is a six-month waiting period after which the court will grant the divorce if both parties agree on who will have custody of the kids, how they will divide the property, and how they will settle the alimony. The six month waiting period can also be waived off by the court with its discretionary powers.
Apart from divorce, there is also an option for judicial separation, having the same grounds to file a petition. Here, the only difference is that parties cannot marry again and after a year of the Judicial Separation order, if there is no cohabitation established, spouses can file for divorce.
Also Read:-Is One-Sided Divorce Possible in India?
2. Divorce among Muslims in India
Divorce for Muslims in India is governed by Muslim personal law, better known as Shariat law and also specific laws made by the parliament. Shariat law allows for divorce in several forms, there are variations in the procedures followed in the divorce depending on which group and school the couples fall under. The Muslim Personal Law (Shariat) Application Act, 1937 allows the people practicing Islam to follow the Shariat, Thus broadly speaking a Mohammedan marriage may be dissolved –
i) by the husband at his will e.g. talaq
When the husband at his will divorces the wife (marriage), it is known as talaq. As noted in the case of Ahamad Kasim v Khatun Bibi AIR 1933 Cal 27, ‘Any Mohammedan husband, who is of sound mind and has attained the age of puberty, may divorce his wife whenever he desires without assigning any reason whatsoever.’ Hence Muslim men could divorce their wives without any rhyme or reason by just pronouncing talaq 3 times in Talaq-ul-Biddat or Talaq-ul-Bidai. However the law has evolved through a landmark case of Shayara Bano v Union of India & ors, AIR 2017 SC 4609 where Supreme Court declared the practice of triple talaq is unconstitutional. Subsequently, the Indian Parliament brought about an Act, The Muslim Women (Protection of Rights on Marriage) Act, 2019 that criminalises triple talaq. The modes in which a Muslim man can divorce his wife are –
- Talaq Ahsan – This consists of a single pronouncement of divorce made during a tuhr (period between 2 menstruation cycles) followed by abstinence from sexual intercourse for the period of Iddat.
- Talaq Hasan – This consists of three pronouncements made during successive tuhrs, no intercourse taking place during any of the three tuhrs.
- Talaq e Tafweez – Ordinarily the husband alone can give talaq to his wife. But in some cases he may also delegate the power to the wife or a third person either absolutely or conditionally and either temporarily or permanently.
ii) by mutual consent of the parties – Khula & Mubarat
- Khula – is a form of divorce with the consent and at the initiative of the wife. In this case, the wife gives or agrees to give a consideration to the husband for her release from the marriage tie. Even if she agrees to relieve the husband from paying back the mahr (dower), it is taken as her consideration. If divorce is effected by this form, it will not be invalidated because of non-payment of the consideration though the husband can sue for realising the consideration.
- Mubarat – when the aversion to the marriage tie is not only from the side of wife but from both the sides, the marriage may come to an end by mutual consent.
iii) by a judicial decree
- Through the Dissolution of Muslim Marriage Act, 1939 – provides for grounds for a Muslim Woman to seek matrimonial remedy in divorce. The grounds provides are as follows:
- Unknown whereabouts of husband for four years or more
- Neglect to maintain wife for 2 years or more
- Husband sentenced with imprisonment for 7 years or more
- Failure to perform marital obligations for 3 years or more
- Impotency
- Insanity or venereal disease in virulent form
- Repudiation of marriage by the wife before turning 18 years
Apart from these, Faskh is the process of annuling a marriage by a Qazi. The wife approaches the Qazi to get divorced on the grounds of cruelty, abandonment or non-maintenance and the Qazi annuls or abrogates the marriage
3. Divorce Act, 1869 – For Christians
Christians in India are subject to the Indian Christian Marriage Act of 1872 which regulates the marriages between the Christian Couples and Divorce Act. 1869 regulates the divorce for those whose marriage was solemnised under Christian Marriage Act or by religious rituals. Grounds for contested divorce are
– Adultery – The act of adultery by the spouse is a valid ground for divorce.
– Conversion – If one spouse converts to another religion, other spouse can claim matrimonial relief.
– Unsound mind – If one spouse is of unsound mind for a period of at least two years before filing the petition
– Venereal disease in a communicable form
– Not heard of seven of more years
– Refusal to consummate the marriage
– No cohabitation after restitution of conjugal rights order for 2 years or more
– Desertion – If one spouse deserts the other for at least two years.
– Cruelty – If one spouse treats the other with cruelty, making it unsafe or improper to continue living together.
For the couples seeking through an amicable settlement of their separation, Mutual Consent divorce is also provided for in the legislation.
4. The Parsi Marriage and Divorce Act, 1936
The Parsi Marriage and Divorce Act governs divorce for the Parsi community of India. Furthermore, the Parsi community has been allowed, under this law, to seek divorce through family court. But it also has certain provisions for the reconciliation process before a community based Chief Matrimonial Courts also grant the divorce. Nevertheless, contested divorces are those in which the court follows a procedure to gather evidence and listens to the arguments in the case.
The grounds for divorce under Parsi Marriage and Divorce Act are:
- Non Consummation of marriage
- Unsoundness of mind
- Adultery/ fornication/ bigamy/ rape/ unnatural offence
- Cruelty
- Caused grievous hurt/ infected with venereal disease
- Undergoing imprisonment for 7 years or more
- Desertion
- Non resumption of cohabitation for more than a year after separate maintenance order
- Conversion to other religion
5. Special Marriage Act, 1954
It is a secular law that applies to all people who have opted to get married under no particular religion. It is often used by an interfaith couple or one that does not want to marry according to its religious customs. The grounds and procedures are similar to Hindu Marriage Act, 1955. The grounds for contested divorce under this Act include;
- adultery,
- cruelty,
- desertion,
- mental disorder,
- venereal disease.
Additionally, the act provides for divorce by mutual consent, where both parties agree to dissolve the marriage after living separately for one year.
Types of Divorce in India
In India, divorce can be broadly classified into two types: Mutual Consent Divorce, also known as Uncontested Divorce, and Contested Divorce, another famous term used in the process of divorce. The types mainly vary at the level of the couple’s agreement and the method of legal proceedings.
- Mutual Consent Divorce: Mutual consent divorce is one of the most commonly opted-for divorces, but it is certainly very amicable. It involves both parties of the marriage agreeing to end their marriage and filing a joint petition to the court. The waiting period of 6 months can be waived off by the court.
- Contested Divorce: In a contested divorce, one spouse files for divorce while the other spouse either disputes the divorce or refuses to agree to the terms. This type of divorce may take several years to conclude because it involves the legal process during which both sides make their arguments before the court. However, this type of divorce can also be settled at the earliest, if both the parties agree to come to an amicable settlement.
Conclusion
The social changes, changing gender roles, and legally easier access to separation have increased the divorce rate in India. However, divorce remains socially stigmatised in large parts of the country, and rising divorce rates, especially in urban cities, show changing opinions on marriage and relationships.
If anyone is considering divorce, it’s important to understand the legal framework and its social implications. As India evolves and modernises, the legal and societal landscapes will also change, leading to more and more people gaining the ability to make choices they find right for them, even if the right choice is to end a marriage.
Advocate Kiran S R – A highly skilled, passionate, dedicated advocate, with vast wealth of knowledge, professionalism, ethical approach and expert skills. One of the sharpest legal mindset brings the best principles of legal practice to the forefront. A qualified Engineer turned Advocate. His passion, dedication and vision to help and assist his clients achieve the best results is his driving force.
