INTRODUCTION:
Divorce in the literal sense means the ‘Legal Dissolution’ of the martial knot. The institution of marriage was to be protected as it is not a mere knot formed to tie people together. It was considered an auspicious practice for society. Moreover, it was believed the marital bond could only come to end after the death of either spouse. Ancient texts like Manupatra and Arthashastra firmly believed marriage is the relation of seven ages.
DIVORCE:
The term ‘Divorce’ was only introduced in Hindu Marriage Act, of 1955. It allowed the parties to the marriage to seek divorce on the grounds specified in the provisions concerned. India is a country with diversity it has various couples seeking a divorce in various religions.
THEORIES OF DIVORCE:
- There are theories under which couples may seek a divorce—
- Fault Theory: According to this theory there must be one guilty party and another innocent party. An act of the Guilty Party must cause injury to the marital relation. The innocent party may seek this remedy. The grounds under which an innocent party may seek divorce are as follows—
- Adultery: The sexual intercourse between a married man and a married or unmarried woman without the consent of another spouse. Such practice is known as Adultery. In Swapana Ghose v. Sadanand Ghose wife found his husband with another woman in bed at night. It was further proved by neighbor that they were living together as husband and wife.
- Cruelty: The cruelty could be Physical Cruelty or Mental Cruelty. Cruelty may include refusal of sexual intercourse, dowry demand, the threat of suicide, and false accusations. Such acts may result in affecting the ‘State of Mind’ that comes under Mental cruelty.
- Desertion: It is the abandonment of one spouse by another spouse without any reason. The spouse did not fulfill martial obligation towards the other spouse and the time period of two years lapsed. The desertion cannot be completed if the spouse shows an intention to return and is prevented by the spouse from doing so.
- Insanity: One spouse should be suffering from incurable unsoundness of mind and such unsoundness shall be continuous. The extent of insanity to the extent that the spouse does not understand the nature of marriage.
- Conversion: When the spouse ceases to be Hindu and converted to some other religion.
- Venereal Communicable Disease: When one spouse suffers from a venereal disease that is communicable in nature irrespective of duration.
- Renunciation: Any spouse who has renounced the world is considered free from societal obligations.
- Mutual Consent Theory: According to this theory when parties to marriage enter into consent, therefore, they should also have the right to part ways. When parties are not willing to stay together but are forced to do so. Then it would only result in additional misconduct of parties towards each other. Though the theory was rejected as it was wholly based on the consent of both the parties remain the same through proceedings. Consequently, putting one spouse at mercy of the consent of others. It was believed that when parties enter into marriage they should also have the right to walk out of marriage.
- Irretrievable Breakdown of Marriage: According to this theory, when a marriage is broken beyond repair then it should be dissolved. When parties to the marriage are not willing to live together with each other it will not do any good. When parties have been living separately over a period of two to three years with or without any reason. This proves the breakdown of the marriage by this theory by facts itself. In Naveen Kohli v. Neelu Kohli the parties have been living separately for more than ten years. They were busy putting allegations of adultery, cruelty, or any other allegation on each other. It further turns the relationship between them sour. This theory is not covered under any act it was merely discussed in the Law Commissions Report. Only Supreme Court has the power to grant a divorce under this theory.
Earlier having a divorce is seen as a sin. But with changing times Divorce has become an excuse for their martial obligation. People often do not bother to sort out their differences and consider the only solution to differences as divorce. They would rather go through litigation than settle disputes. Even though the court referred the matters for mediation they end up coming back to square one. Marriage should not only be a means for future generations rather it should be seen as an emotional bond.
APPEALING DIVORCE CASES:
When the matter of divorce is filed in court for whatsoever ground the decision of the trial court becomes final. The judgment of divorce addresses issues that have been reasons for parties to file divorce cases before a court of law. Even if the matter is settled outside court or by mediation a settlement agreement must be referred to in the final decree. It usually includes the ‘Rights and Liabilities’ of parties—
a. Child Custody
b. Property Division
c. Alimony
If either of spouse feels the judgment is unjust, they may appeal in appellate court against the order. The appeal shall act as a continuation of the previous suit, not a fresh trial. One may appeal to reverse the entire judgment or some terms of judgment. To prove certain part of judgment is unjust or judgment as whole you need to show that—
- Lower Court may have abused its power by neglecting evidence.
- Lower Court may have misinterpreted the law.
- New facts have surfaced.
- Another spouse must have concealed the facts.
Before appealing the party shall give the court or your spouse the notice of same. The record must be prepared of the previously trial. The term ‘record’ shall include pleadings, written statements, and pieces of evidence presented during the hearing. An Appellate Brief must be filed that includes both claims as well as legal provisions supporting the same. The court will direct you to present oral arguments supporting your claims. After hearing from another spouse, it may affirm or reverse the earlier order of the Trial Court. The court may order the trial court to reconsider the case.
CONCLUSION:
When parties marry willingly, they should stay together and overcome their differences together rather than opting out of marriage. Marriage joins two families with love and divorce part away two families with hatred towards to each other. The parties must give chance to their marriage before finally letting go as it affects their family as well. The decision to divorce should be taken wisely as there is no turning back to it. The parties must sort the dispute regarding alimony and custody prior to the divorce petition. There is no point in putting allegations on each other be they true or false. It is always better to sort out issues of dispute and walk out respectfully.
