Marriage in India is considered as a venture of two souls through which they
get a societal status in society as called
spouse. It's a very obvious
phenomenal if society changes then the law will definitely going to change to
keep possession of justice among the citizens of the state. our matrimonial laws
should be more consolidated and more progressive which could help to reconcile
contradictory interest of spouse which occurs sometimes due to usual or unusual
matters. moreover, we have different types of conflicting, prejudiced laws
according to various caste and religion which needs to be stabilized or
consolidated.
There has been an expansion in the number of the crackup of
matrimonies each year either due to the fault of the husband or the wife. the
natural as well as universal phenomenal which says that a small growing plant
needs both water as well as sunlight to grow, likewise a small innocent child
needs the love of both mother and father for his bright future, thus this
dissolution of marriages doesn't only harm future of spouse but also to their
child's to great extent which could do massive destruction to his/her
psychological state. although we have many types of distinct legislations and
procurements for divorce corresponding to different religions all are suffering
from different loopholes.
Shattering child's future
The divorce scale has been grown rapidly which is not a good indication for a
country named India, which is customarily famous for its customs and incredible
vintage cultural. Divorce can influence each and every developing aspect of
his/her whether it could be physically, socially, emotionally, educationally,
morally, and spiritually.
divorce is a life-transforming occurrence which can clearly generate deeply
damage to many life's. this article has been undertaken to examine the loopholes
of divorce regularity in India. there could be several reasons behind divorce
like infidelity, adultery, neglecting family. in the case of [1] R
oxann Sharma vs
Arun Sharma, the distinguished supreme court held that "the custody of the minor
child below five years should be given to his/her mother ". but till now there
is no such legislation which restricts the fixed amount of "[2] alimony pendente
lite" moreover which could constitute a financial problem to one spouse. we have
many kinds of centrifugal laws to govern marriages related to every caste but
till now none of them considered any sort of amount which a spouse should be
authorized to draw after the adjournment of marriage which signifies that there
should be the equitable distribution of property among spouse.
In case of [3]
Om Wati vs Kishan Chand where the court held that due to lack
of[4]animus deserdendicourt ignored the petition of divorce on grounds of lack
of evidence this case showed up large implications we still lacking behind in
our enactment.
Study of other deceptions in the system
Considering, the case of [5] Karnataka high court where the unsatisfactory
verdict, as well as inadequate suggestions, which was totally unacceptable, was
given by the justice, where he mentioned that domestic abused wife can adjust
with their husbands, anyhow it's just matter of time. any verdict pronounced by
the apex court of the country is the law of the land which applicable within the
territory of India and which has its own degree of discretion power. while in case
of [6]
Amandeep Singh vs Harveen Kaur where supreme court held that " 6 months
waiting period for divorce by mutual consent is not mandatory" the consequences
could be very serious because in future many families can be simply dissolved
using such verdict there should be more time provided for reconciliation as well
as mediation so that spouse gets enough time to cool down and to use their senses
properly including their children's future so that dissolution of marriage could
be stopped and to remove individuals agony state as well and to recover. after
biting analysis, it has been observed that nowadays misusing matters are being
inscribed in huge number where "[7]motion to vacate the premises" could be a
devastating threat which can be practiced by either husband or wife in order to
obtain revenge which needs to be framed accordingly.
Further glance at the other legal implications
Somehow there has been always some sort of tumble or biased part due to which
any of the partners suffers from the divorce process which clearly shows the
legal entanglements we are still lacking behind, relating to one of the similar
instances, case of Kerala where a women's husband was earning around 56,000 per
month but she entitled to get only 900 rupees as maintenance after prolonged
battle of 17 years now it shows how a person can suffer such rigorous life and too
with cheap justice.
In the case of high court of Bombay[8]
Shri Mangesh Balkrushna Bhoir vs Sau
Leena Mangesh Bhoir where the court held that there should be relief
provided to victim and his family in false cases and respective party can file
the petition against it regarding as constitute cruelty. there are certain
reasons why our system many times fails to serve justice because:
- pertaining to the long procedure of courts which could take years
- Disruption of child's future regarding divorce cases
- Gender bias and Gender dominance still exists in our regularity bodies
Suggestions
After the critical observation, it's pretty manifest that there has to be a
consolidated form of regularity which rules divorce system i.e. like UCC-"
Uniform
civil code" or else any new law for the welfare of the country and to maintain
the sovereignty, uniformity and harmony among each and every citizen of the state.
Conflict of laws pertaining to each and every religion has to be stopped for
example
Venereal diseases is ground for divorce in Hindu marriage act, Parsi
Marriage act and Muslim marriage act but in Indian divorce act it's not a ground
for divorce which clearly shows the possession of complexity as well as chaos
among all. many immoral acts which kept increasing nowadays like adultery,
bigamy, sodomy thus they should be considered under non-cognizable and Bailable
offences so that there could be a strong punishment for each and every of the
crimes.
Conclusion
Since after independence till the date, we don't have codified law in our Indian
constitution for divorce purpose.
we have different types of laws governing different religions regarding divorce
which is not at all bonafide such as Muslim, Parsi, Jewish, Hindu. Even the
organizations of divorce has complex assumptions under these laws. While it is
only under the Hindu Marriage Act, 1955, the Special Marriage Act, 1954 and the
Parsi Marriage and Divorce Act, 1936 that divorce by mutual consent and on the
grounds of irretrievable decline of conjugality is also identified, Muslim law
grants the husband with the claim of one-sided divorce, while the wife can only
rely on specific prescribed fault grounds.
the research paper began by examining certain implications in our judiciary
system, how divorce has unrecoverable consequences including the child. I
realized that there are a number of provisions that quite similar between the
various statues and the kinds of problems that arise before courts when it comes
to implementation of such rules. Following this, I looked at the elements of
difference between the several ordinances, through revisions to reconcile them
with the dynamic socio-religious matters.
While on the one hand owing to the fact that in India, the source of personal
laws is spiritual expectations and societal practices, both of which are
complicated and distinct in Indian society, there are a lot of fundamental
differences in the laws. This leads me to conclude that in areas like divorce,
an endeavour should be made to structure a typical personal law based on the
agreements under which the variations can be harmonized and reconciled to create
a sole, personal law for the entire country.
End-Notes:
- Roxann Sharma vs Arun Sharma 17 feb,2015,SC Bench: Vikramajit Sen, C.
Nagappan,
the Judgment dated 2nd August, 2014 passed by the High Court of Bombay at Goa in
Writ Petition No.79 of 2014, which in turn questioned the Order dated 31.1.2014
passed by the IInd Additional Civil Judge, Senior Division at Margao, Goa
(hereafter also referred to as the Civil Judge) in Matrimonial Petition No.
15/2013/II filed on 18.5.2013 before us, by the Respondent, Shri Arun Sharma
(hereafter referred to as 'Father') under Section 6 of the Hindu Minority and
Guardianship Act, 1956. In this petition the Father has prayed inter alia that
(a) the custody of the minor child, Thalbir Sharma be retained by him and that
(b) by way of temporary injunction, the Appellant before us (hereinafter
referred to as the Mother) be restrained from taking forcible possession of the
minor child Thalbir from the custody of the Applicant
- A temporary order of court that provides support for one spouse and
provide support for one spouse and to children while divorce is in progress.
Legal maxim
- Om Wati v. Kishan Chand
In this case, the parties married on 2nd February 1976 and a female child was
born to them which, however, died later. On 22nd May 1981, the wife applied for
divorce on the ground of desertion by the husband and gave the fact that they
have been living separately since February 1979. But the Court held that animus
deserdendi was not established. It was proved that when the husband was informed
of his child€™s death, he did not come even to perform the last rites of his
child. This clarified that he had broken off all ties with his family.
- The intention to bring cohabitation permanently to an. Two elements must
be present on the side of the deserted spouse: absence of consent and
absence of conduct reasonably causing the deserting spouse to form his
intention to bring cohabitation to an end.
- 20 year old woman and 37 year old husband approached HIGH COURT of
Karnataka She claimed that her husband is beating her everyday and he
claimed that she deserted him, she took his sons Justice BHAKTAVATSALA said that "it might be ok for the husband to beat a woman
if he took good care of her,
Woman suffer in all marriages, your husband is doing good job"
- Amardeep Singh vs Harveen Kaur on 12 September, 2017
Supreme court
the period mentioned inSection 13B(2)is not mandatory but directory, it will
be open to the Court to exercise its discretion in the facts and circumstances
of each case where there is no possibility of parties resuming cohabitation and
there are chances of alternative rehabilitation.
- Legal Maxim
Upon a showing of good cause by one party the court order the other spouse to
leave the martial residence
- Shri Mangesh Balkrushna Bhoir Vs Sau Leena Mangesh Bhoir Justice R.D. Dhanuka said that
"In my view, the order passed by the lower appellate Court is totally erroneous
and contrary to law laid down by the Supreme Court and this Court holding that
if the wife had filed a false case against the husband and his family members in
which the appellant husband and his family members are acquitted, it amounted to
cruelty and the husband on the said ground was entitled to seek divorce. The
impugned order passed by the lower appellate Court thus deserves to be set
aside".
Please Drop Your Comments