Article By: Dr Kislay Panday, Solicitor, Supreme Court of India
Supreme Court of India is of the view that archaic divorce law must make way for progressive divorce laws which are faster and easier for the good of the society.
With a change in society, marital relations have undergone a sea change. But they are still being governed by archaic laws which have lost touch with reality. “The law of the country should always be progressive and should reflect the changing realities. Interestingly initially there were no provisions for divorce in the Hindu marriage act but they were eventually incorporated, so better faster divorce laws are the need of the hour” Says Dr. Kislay Panday, the solicitor at the Supreme Court of India.
Indian society has moved on since the first decade of independence. Social mores and indeed the society of 2020 are different from what it was in the 1950s. Since independence, many women have made a mark and are now moving along with men. No longer women are willing to accept male dominance and bear in silence. They are now coming out in large numbers to protest the atrocities committed by their in-laws in the name of conforming to traditions and complying with the traditional Hindu values. And this has indeed led many women and even men to move to court for divorce and to undo the nuptial knot.
Failed marriages are on a rise and so are the divorce applications in the Indian courts. As both men and women are becoming more aware of their rights, they are strongly rejecting the regressive practices and silent oppression such as misogyny, patriarchy, and role-biding. And sometimes people move to court for divorce as they just can’t bear their partner for a plethora of reasons like habits, everyday quarrels, and so on.
Nevertheless, getting a divorce in India is not an easy task. One has to comply with plenty of legal obligations. The judicial system works on evidence and particular frameworks. In case of the dissolution of marriage, one must prove his/ her point in the court accompanied by a valid reason. Since marriage is observed as a sacrament in India, there are only a few legal grounds for divorce.
“The most interesting aspect of Indian divorce law is the reason. There are just seven reasons enumerated in the law for getting a divorce, whereas in reality there can be hundreds of reasons for not living with a spouse. If two adults do not want to live together or even one of them does not want to live with the other, they should be allowed to do so easily and without hassles” says Dr. Kislay Panday, the solicitor at the supreme court of India.
There has been a rapid rise in divorces in India, but in order to obtain a divorce legally, it can take anywhere from six months to 20 years. According to an estimate roughly 11 Indian marriages in every 1,000 end in divorce though the number in the USA is 400. “The reason for this small percentage is not that people do not seek divorce but because it is cumbersome to get a divorce in India and so many couples just live as estranged couples, separated but technically still married to each other leading to many social and moral complications”, says Dr. Kislay Panday.
The UPA government introduced the Marriage Laws (Amendment) Bill, proposing amendments to the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, to make an “irretrievable breakdown of marriage” ground for divorce. The Bill was passed by the Rajya Sabha in 2013, but could not be taken up for discussion in the Lok Sabha. The NDA government’s concerns about “illegitimate and live-in relationships,” stalled the process. “It is wrong to believe that easier laws for divorce would lead to the breakdown of the marriage institution, in fact, it would end the marital misery and only those couples who want to live together would do so not to please the society or the peers”, says Dr. Kislay Panday.
Till the Modi government introduces the revised bill not much can be expected on this front. The law minister had once indicated that a revised bill was on anvil and would be coming up for public debate. Let’s hope that happens sooner than later.
This post has been submitted by Alok Kumar Singh.
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