The Law Of Divorce

All major religions have their own laws which govern divorces within their own community, and separate regulations exist regarding divorce in interfaith marriages.

Hindus, including Buddhists, Sikhs and Jains, are governed by the Hindu Marriage Act, 1955; Christians by the Indian Divorce Act, 1869; Parsis by the Parsi Marriage and Divorce Act, 1936; and Muslims by the Dissolution of Muslim Marriages Act, 1939, which provides the grounds on which women can obtain a divorce, and the uncodified civil law. Civil marriages and inter-community marriages and divorces are governed by the Special Marriage Act, 1956 (Kapur and Cossman 101).

Other community specific legislation includes the Native Converts' Marriage Dissolution Act, 1866 that allows a Hindu to appeal for a divorce if a spouse converts to Christianity (Virdi 36-37).

Grounds for Divorce

In most Western nations, there are approximately 16 distinct reasons for which divorces are granted. In India, however, only five main reasons are generally accepted as sufficient grounds for divorce (Choudhary 90).

Adultery. While no formal definition of adultery exists, it does have "a fairly established meaning in matrimonial law" (Diwan 171), namely "the voluntary sexual intercourse of a married man or woman with a person other than the offender's wife or husband" (Choudhary 91). While the law considers it valid grounds for either sex, adulterous women are "judged more harshly" than men (Kapur and Cossman 102). The various religious regulations a e not unanimous on this issue. The law regarding Hindus allows divorce to be granted on the grounds of infidelity of either husband or wife. The Christian law, however, would traditionally not have granted a divorce to a woman solely on the grounds of adultery. She would have had to prove another violation, such as cruelty (Kapur and Cossman 102-4). A recent Bombay High Court decision "recognised cruelty and desertion as independent grounds for the dissolution of a Christian marriage," striking down a section of the law that allowed for an unconstitutional distinction between the sexes (Raiker-Mhatre 1).

Desertion. The three main components of desertion are the "disruption of cohabitation, absence of just or reasonable cause and their combination throughout three years" before the abandoned spouse may petition for a divorce (Virdi 71). There also must be an obvious intent on the part of the offending spouse to remain permanently apart from the other. This statute also applies to cases in which a spouse has been heard from for at least seven years (Choudhary 91).

Cruelty. As with adultery, "the definition of the type of behavior that constitutes cruelty varies according to the gender of the petitioner" of the divorce. "Despite the fact that cruelty is often equally available to husbands and wives, the way in which the law is interpreted and applied suggests that women and men are evaluated by rather different standards" (Kapur and Cossman 105). This category includes both physical and mental abuse and neglect (Choudhary 91). A court decision made in early May 1997 made cruelty sufficient grounds for a Christian woman to obtain a; previously, the law required both adultery and cruelty to be proven. The national Indian Christian community seems to have embraced this judgment (Raikar-Mhatre 1-2.

Continued Break Up & Divorce Part-2 ...... Divorce & Saving Marriage

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