Tag: #Divorce

Divorce, further referred to here as dissolution of marriage is the process of ending a marriage. The reasons for divorce can vary from irreconcilable differences to infidelity, and the process typically involves legal proceedings to divide assets and determine custody arrangements for any children involved. It pertains to the revocation or restructuring of the constitutionally protected duties and responsibilities of marriage, thereby dissolving this same relationship of matrimony between a married couple under the laws of the specific country or state. Gender justice refers to eliminating the disparities between men and women that are reproduced and produced in the family, market, community, and state.

To address the injustice and discrimination against women and the poor, we must address all of these issues. Gender justice plays a crucial role in divorce proceedings to ensure that both parties are treated fairly and equitably, especially in cases where women and children are often at a disadvantage. It is important to recognise the intersectionality of gender, class, and race in divorce cases to promote a more just and inclusive legal system. Therefore, it is important to consider gender justice when dealing with divorce cases, as women and children are often disproportionately affected by the legal and financial consequences of divorce. Efforts to promote gender equality and address systemic inequalities can help mitigate these negative impacts.

Gender justice is a global movement to achieve equal rights, freedom, and justice, but women still face discrimination, violence, poverty, and limited access to education and healthcare. It is important to continue the fight for gender justice and promote women’s rights worldwide. Achieving gender justice requires a comprehensive approach that involves changing social norms, policies, and institutions to ensure that women and men have equal opportunities and resources. This can be achieved through initiatives such as education and awareness campaigns, legal reforms, and the empowerment of women in leadership positions. By working towards gender justice, we can create a more equitable and just society for all. This requires the active participation of individuals, communities, governments, and international organisations.

Divorce under Muslim law 

Well before the Solubilization of the Muslim Marriage Act of 1939, Muslim women had almost no legitimate right to ask their spouses for separation. This highlights the need for continued efforts towards gender justice, particularly in the context of religious and cultural practices that may perpetuate inequality. Such efforts must be inclusive and involve a range of stakeholders to ensure lasting change. This highlights the need for reform in traditional religious laws and practices that discriminate against women and perpetuate gender inequality. It is crucial to promote legal and social frameworks that protect women’s rights and empower them to make independent decisions about their lives. The Solubilization of the Muslim Marriage Act of 1939 was a significant step towards granting Muslim women the right to seek divorce. However, there is still a long way to go in terms of ensuring gender equality and justice within the Muslim community. Efforts must be made to challenge patriarchal norms and promote education and awareness among both men and women. This will help to create a more inclusive and equitable society where women can fully participate and thrive. In addition, there is a need to address the issue of triple talaq, which allows Muslim men to divorce their wives by simply saying “talaq” three times. Triple talaq is a discriminatory practise that violates women’s rights and leaves them vulnerable to abandonment and destitution. It is crucial for Muslim leaders and policymakers to work towards abolishing this practise and implementing laws that protect women’s rights in marriage and divorce. This practise is not only discriminatory but also violates the fundamental rights of women. Reforms must be made to ensure that Muslim women have equal rights and protection under the law.

The Dissolution of Muslim Marriage Act of 1939 developed nine grounds on which a Muslim woman could seek redress in court, namely:

1. that the husband’s whereabouts were uncertain for a duration of four years;
2. that the husband neglected or did not provide her monitoring for a duration of two years;
3. that the husband must have been incarcerated for a period of seven years or more; but rather
4. that the husband failed to act, without justifiable suspicion.
5. the husband has been mentally ill for two years, or
6. that she, having been given in marriage by her father or other guardians before the age of fifteen, repudiated the marriage before the age of eighteen.

The Act also gave Muslim women the right to divorce their husbands on certain grounds, such as cruelty, impotence, and adultery. However, the Act has been criticised for not going far enough to protect Muslim women’s rights in divorce cases.

 Gender injustice against women

Muslim personal law is seen as having even more gender inequality. As a result, Muslims deserve extraordinary justice. They are not left in charge of deciding how “justice,” “fairness,” and “equity” are attained. In a number of situations, God decrees what is “just” for human society, and humans are compelled to follow these decrees or stipulations from the divine.

This tactic is based on the idea that divine law is superior to laws made by humans and that upholding it will result in a society that is fair and just. This strategic approach, albeit having its detractors, every so often results in the oppression of minority populations within Muslim communities. God commanded humans to uphold justice and fairness on earth and made it a virtue that would ensure their happiness and peace in both this life and the next.

The path of injustice leads to the promised damnation. Justice is required in all aspects of life, including business transactions, politics, domestic relationships, legal administration, and intellectual and educational pursuits. It argues that it is evident that Islam places a high value on justice in all aspects of life. With the promise of reward for those who do and punishment for those who do not, Muslims are encouraged to strive for justice and fairness in their interpersonal and societal interactions.

This emphasis on justice stems from the conviction that all individuals have equal worth in God’s eyes, and it is each person’s duty to uphold this equality. Striving for justice is thus not only a moral obligation but also a means of achieving spiritual fulfilment and closeness to God.

The tense relations between Hindus and Muslims today have their roots in the Shah Bano episode. The Supreme Court’s decision awarding Shah Bano pitiful monthly alimony was overturned by the Rajiv Gandhi administration through an ordinance. 

Intentionally, this was done to protect Muslims’ ability to practise their religion freely. In reality, it amounted to violating the rights of women, who make up half of the Muslim population. It was obvious that the move was made to placate the vocal groups and clerics. This gave the BJP’s accusation of Muslim appeasement momentum and gave the long-dormant Hindutva movement new life. Many Native Americans started to believe the accusation of appeasement. It helped the BJP go from having two MPs in Parliament to having an absolute majority in 2014. The BJP’s strategy of portraying themselves as the protectors of Hindu interests and accusing their opponents of Muslim appeasement proved to be a successful political tactic, as it resonated with a significant portion of the Indian electorate. This allowed them to consolidate their power and implement their agenda, including controversial policies such as the Citizenship Amendment Act. The Citizenship Amendment Act has been criticised for being discriminatory against Muslims and has sparked protests across the country. However, the BJP remains popular among many Hindu nationalists, who see the party as a defender of their interests and values.

Only speaking out when they believed there was a “danger to Islam,” the Muslim leadership has historically been exclusively male and overtly religious. Islam khatre mein is a well-known rant from my generation. In their eyes, women who educate themselves, secure employment, and demand equal treatment pose a clear threat to their authority and status. For them, the equality of women leads to Islam, khatre mein he. They keep saying that Islam granted women’s rights 1400 years ago, but they never give the idea of making those rights a reality. They could not be credited with respect for people of other faiths or tolerance for Muslims who hold dissimilar beliefs. This mindset is not only harmful to women but also to the progress of society as a whole. It is important to challenge these beliefs and promote gender equality for a better future.

In India, a number of laws have been passed with the goal of reducing the gender pay gap and promoting women’s empowerment. Various rights for women in this regard are guaranteed by the Indian constitution. Part III of the Constitution, which deals with fundamental rights, and Part IV, which deals with directives and guiding principles of state policy, provide evidence of this. According to Article 14, everyone shall enjoy equal protection under the law and be treated equally in court. This means that no distinction between men and women should be made by courts or law enforcement organizations. The foundation upon which other laws are created and may be put into effect is the right to equality.

The goal of gender justice cannot be accomplished without the right to equality. The prohibition against discrimination is guaranteed by Article 15. The right to equality and, by extension, the right against discrimination are meant to address the widespread prejudice and bias against women. The special protection for women is discussed in Article 15(3). No matter a person’s sex, they have the right to equal opportunity in terms of public employment under Article 16.

This clause makes it easier for women to start taking part in elections and decision-making. The 74th Amendment, which established a reservation for women in panchayats, is significant to note in this context.

Article 19 guarantees freedom of speech and expression, the right to peacefully assemble without weapons, the right to form associations and unions, the right to move freely throughout the Indian subcontinent, the right to live and settle anywhere on the subcontinent, and the right to engage in any occupation or business. By granting the freedoms required to function in society, promotes the right to equality. Article 19 guarantees freedom of speech and expression, the right to peacefully assemble without weapons, the right to form associations and unions, the right to move freely throughout the Indian subcontinent, the right to live and establish oneself in any location, and the right to engage in any occupation or business. By granting the essential liberties required to participate in society, promotes the right to equality.

The right to life is guaranteed by Article 21, and this interpretation has been expanded to include the right to live with dignity. The right against exploitation is protected by Article 23. It forbids the trafficking of people. Part IV of the Constitution is made up of the State Policy Directive Principles.

Lacking a comprehensive democratic vision that would enable Muslims to meaningfully participate in our secular multifaith polity, the All-India Muslim Personal Law Board (AIMPLB) and the Babri Masjid Action Committee failed to achieve their goals. Both bodies kept their discussions to questions of identity. The majority of these organisations’ leaders pretended to be “Muslim leaders,” speaking for the religion’s 12 crore or more adherents. The majority of them developed close ties with various political parties and benefited from their patronage. These connections were never more than personal, and worse, they never resulted in any collective benefits like promoting education or preventing riots for the whole community. Muslims’ poor economic and educational status serves as evidence of this.

The last 15 years have seen a historic shift in the way that women have publicly spoken out against patriarchal practices like instant triple talaq, polygamy, and halala. When everyday women joined the democratic fight against instant triple talaq and for justice within marriage and the family, it would hardly be an exaggeration to say that the religious male leadership was rendered irrelevant. Additionally, women spearheaded the fight for social justice, communal harmony, and the repeal of unjust laws like the CAA-NRC. This shows that despite their disadvantaged economic and educational status, Muslim women have been able to mobilise and lead important social and political movements in their communities. Their activism challenges stereotypes about Muslim women and highlights the potential for empowerment even in the face of systemic oppression. 

Conclusion

Divorce is the process of ending a marriage. It involves legal proceedings to divide assets and determine custody arrangements for any children involved. Gender justice plays a crucial role in divorce proceedings to ensure that both parties are treated fairly and equitably, especially in cases where women and children are often at a disadvantage. It is important to recognise the intersectionality of gender, class, and race in divorce cases to promote a more just and inclusive legal system. Gender justice is a global movement to achieve equal rights, freedom, and justice, but women still face discrimination, violence, poverty, and limited access to education and healthcare. To address the injustice and discrimination against women and the poor, we must address all of these issues. Divorce under Muslim law highlights the need for reform in traditional religious laws and practices that discriminate against women and perpetuate gender inequality. The Dissolution of Muslim Marriage Act of 1939 gave Muslim women the right to divorce their husbands on certain grounds, such as cruelty, impotence, and adultery. However, the Act has been criticised for not going far enough to protect Muslim women’s rights in divorce cases. Muslim personal law is seen as having even more gender inequality, and Muslims deserve extraordinary justice. Islam places a high value on justice in all aspects of life and encourages Muslims to strive for justice and fairness in their interpersonal and societal interactions. God commanded humans to uphold justice and fairness on earth and made it a virtue that would ensure their happiness and peace in both this life and the next.

The path of injustice leads to the promised damnation. The emphasis on justice stems from the conviction that all individuals have equal worth in God’s eyes, and it is each person’s duty to uphold this equality. The tense relations between Hindus and Muslims today have their roots in the Shah Bano episode, where the Supreme Court’s decision awarding Shah Bano pitiful monthly alimony was overturned by the Rajiv Gandhi administration. This gave the BJP’s accusation of Muslim appeasement momentum and gave the long-dormant Hindutva movement new life. It helped the BJP go from having two MPs in Parliament to having an absolute majority in 2014, as it resonated with a significant portion of the Indian electorate. The Muslim leadership has historically been exclusively male and overtly religious, leading to the view that women who educate themselves, secure employment, and demand equal treatment pose a threat to their authority and status. This mindset is harmful to women and society as a whole, and it is important to challenge these beliefs and promote equality. Muslim personal law is based on the idea that divine law is superior to laws made by humans and that upholding it will result in a fair and just society. The BJP’s strategy of portraying themselves as the protectors of Hindu interests and accusing their opponents of Muslim appeasement was a successful political tactic, allowing them to consolidate their power and implement controversial policies such as the Citizenship Amendment Act.

The Solubilization of the Muslim Marriage Act of 1939 was a significant step towards granting Muslim women the right to seek a divorce, but there is still a long way to go in ensuring gender equality and justice. Reform in traditional religious laws and practises are needed to protect women’s rights and empower them to make independent decisions. Additionally, there is a need to address the issue of triple talaq, which allows Muslim men to divorce their wives by saying “talaq” three times. Triple talaq is a discriminatory practise that violates women’s rights and leaves them vulnerable to abandonment and destitution. Reforms must be made to ensure Muslim women have equal rights and protection under the law, such as the Dissolution of Muslim Marriage Act of 1939. However, the Act has been criticised for not going far enough to protect Muslim women’s rights in divorce cases.

This article is written by Aehra Tayyaba Hussain, a student in her1st year at Symbiosis Law School Hyderabad, pursuing a B.A. LLB.

CITATION

(2017) 9 SCC 1

INTRODUCTION

The case of Shayara Bano vs Union of India refers to a landmark judgment by the Supreme Court of India in 2017 that upheld the constitutional validity of the practice of Triple Talaq or instant divorce among Muslims in India. The case was filed by Shayara Bano, a Muslim woman from Uttarakhand, who challenged the practice of Triple Talaq, which allows Muslim men to divorce their wives by saying “Talaq” three times in one go, without giving any reasons or going through the legal process.

FACTS

Shayara Bano vs Union of India is a landmark case that challenged the practice of Triple Talaq or instant divorce among Muslims in India. The case was filed by Shayara Bano, a Muslim woman from Uttarakhand, who had been married to Rizwan Ahmed for 15 years and had two children. In October 2015, her husband divorced her by sending a letter with the word “Talaq” written thrice. Shayara Bano was devastated by the sudden and arbitrary divorce and decided to challenge the practice of Triple Talaq in court.

Shayara Bano’s petition challenged the legality of Triple Talaq, Nikah Halala, and polygamy, which are practices prevalent among the Muslim community in India. Triple Talaq is a practice that allows Muslim men to divorce their wives by saying “Talaq” three times in one go, without giving any reasons or going through the legal process. Nikah Halala is a practice where a divorced woman has to marry another man, consummate the marriage, and then get divorced again before remarrying her former husband. Polygamy is a practice where Muslim men are allowed to have multiple wives. Shayara Bano argued that these practices violated her fundamental rights as a woman and went against the principles of gender justice and equality enshrined in the Indian Constitution. She contended that the practices were arbitrary, and discriminatory, and left Muslim women vulnerable to abuse and injustice. She also argued that the practices were not essential to the practice of Islam and should be declared unconstitutional.

PROCEDURAL HISTORY

The case of Shayara Bano vs Union of India was filed in the Supreme Court of India on February 2016. Shayara Bano, the petitioner, challenged the constitutionality of the practice of Triple Talaq, which allows Muslim men to divorce their wives by saying the word “Talaq” three times in one go.

The case was assigned to a five-judge bench of the Supreme Court, which held several rounds of hearings and considered arguments from both sides. The bench was headed by Chief Justice J.S. Khehar and included Justices Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit, and Abdul Nazeer. The first hearing in the case was held on May 11, 2017, and the court directed the Union of India to file its response to the petition. The All India Muslim Personal Law Board (AIMPLB) was also allowed to intervene in the case and present its arguments.

The Union of India, represented by the Attorney General, took a neutral stand on the issue and argued that it was up to the Supreme Court to decide whether Triple Talaq was constitutional or not. The AIMPLB, on the other hand, supported the practice of Triple Talaq and argued that it was a matter of personal law and should be left to the community to decide.

The court held several rounds of hearings over the next few months and heard arguments from both sides. The bench also received submissions from several other Muslim women who had been victims of Triple Talaq and other similar practices.

Finally, on August 22, 2017, the Supreme Court delivered its judgment on the case.

JUDGEMENT AND ANALYSIS

This case is a landmark judgment that has inspired many women to make bold movements and is famously known as the judgment that changed India. This landmark case is also known for its unique diversity in the religion of the judges as it was headed by a Sikh Judge followed by judges from other religions namely, Christianity, Islam, Parsi, and a Hindu judge. In this case, Shayara Bano along with 4 other Muslim women was subjected to talaq e biddat also known as instant triple talaq. They demanded that talaq e biddat should be declared unconstitutional because they believed that it violated their fundamental rights. Hence the five-bench constitution bench mentioned before they were formed. It is also quite ironic that there was no women judge on the bench given the fact that the case dealt with gender justice. The verdict of this case was quite unexpected as the Supreme Court neither constitutionally banned nor legally, instead, they set aside the Muslim Personal law related to triple talaq. 2 out of the 5 judges namely CJI Khehar and Justice Nazeer said this law cannot be banned and the other 2 judges namely justice R.F.Nariman and Justice U.U.Lalit declared it unconstitutional. It was read perhaps for the first time that a Muslim Personal Law is also a fundamental right as the law comes under the religion of Islam and people have the right to practice any religion as a fundamental right. Thus, they said the law must not be banned.

On the other hand, the other two judges declared that the act was arbitrary, that is without any application of logic and also violating the fundamental rights of the women, the law is unconstitutional. They read that the Muslim personal is a pre-constitutional law that is not arbitrary and thus is to be banned. The last judge, Justice Kurian Joseph said that triple talaq is unislamic. He went on to justify his statement by stating that for talaq to occur, there are two prerequisites for the same. Justice Kurian Joseph said that for talaq to be valid, there must be reconciliation and arbitration and that in the form of triple talaq, there is no scope for either as it is irrevocable. Reconciliation and arbitration are two essentials of Islam divorce law where both parties may plan to reunite after marriage. Even though the judges did not declare it unconstitutional, it was sent forth to the parliament for implementation. Eventually, on 28 December 2017, the Lok Sabha passed the bill with a majority. 

The question here is whether the passing of the bill is a violation of the Islamic principle or a stepping stone toward women’s empowerment. 

We can see how patriarchal the laws are as the only way in which Muslim women can get separated from their Muslim husbands is by Talaq-e-Tafweez. The wife can approach the court for the dissolution of the marriage under the Muslim Marriage Act, of 1939 if any of the said conditions are practised by the husband. Moreover, it is like an agreement, they don’t have the option to pronounce talaq in different ways as Muslim men do. When talaq-e-biddat was banned in Shayara Bano v. Union of India., some sort of legal protection was awarded to the Muslim women and this landmark judgment was a ray of hope for them. 

Under the Muslim Women (Protection of Rights on Divorce) Act, 1986, Muslim women at the time of divorce can ask their husbands for maintenance only until the Iddat period. If the woman is not in a position to maintain herself and she has not married again, she is not entitled to ask her former husband for maintenance. Its constitutional validity was challenged in the landmark case of Daniel Latifi & Anr., v. Union of India.^[1], where it was argued that the rights of Muslim women are violated under articles 14, 15, and 21 of the constitution. Therefore, it was held that women are to be awarded maintenance under section 125 of CrPC. This section ensured that women in general is protected from destitution and vagrancy and were secular in nature.

These two landmark cases ensured the protection of the rights of women and a better position in society along with giving a wide interpretation of article 44 and the Uniform Civil Code. 

CONCLUSION

Men under Muslim law have the right to marry 4 women at a time whereas women can contractually enter only a single marriage. This clearly shows the patriarchy that women face and their plight when compared to men. In the present world of advanced science, technology, and advanced thinking, where there are different methods that have been developed for the rescue of people like adoption, IVF, etc. the procreation capacity of women cannot be considered a justification for polygamy. In such a scenario, UCC needs a safe and secure future for women in society. This is an important issue in the current scenario because, in many of Islam-practicing countries like Iran, Tunisia, Pakistan, etc. polygamy has already been abolished. It is high time for a country like India which give immense importance to human rights and equality to consider the same.

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ENDNOTES:

1. Daniel Latifi & Anr., v. Union of India., (2001) 7 SCC 740

This case analysis is done by Vishal Menon, from Symbiosis Law School, Hyderabad.

This article talks about Section 13(B) and the effects of the cooling period being waived off and various cases to understand this better.

INTRODUCTION 

Marriage is considered one of the essential sacraments for all Hindus. None other than the Hindus have endeavored to Idealize the institution of marriage. Due to this a divorced person was stigmatized and hindered in the Hindu Society but over the years as our nation developed and Hindu Marriage Act came into force eventually the divorce aspects also found their own place in the act. The Hindu Marriage Act, 1955 under Section 13 (B) states that a petition for mutual consent divorce is presented by the parties with the following averments: –

1. That both the spouses are living separately for a period of one year,
2. The Spouses have not been able to live together,
3. Both the spouses have been living separately by consent.

In recent years Supreme Court has given a new perspective to the cooling period in mutual and consented divorce. The court held that this clause of the Hindu Marriage Act,1955 which allows a cooling-off period of six months is not compulsory but just directory to the courts. According to this, the courts in which the divorce proceedings are ongoing under extraordinary cases have the right to suspend this time if other conditions are met, including the fact that the spouses have been piecemeal for a period of more than18 months, that all comforting and concession attempts to reunite the parties have collapsed and the parties have truly resolved their controversies, indeed in regard to alimony.

MEANING OF THE TERM ‘COOLING-OFF PERIOD’?

Under Section 13 of the Hindu Marriage Act, 1955 a married couple can get a divorce on the grounds of mutual consent through filing a petition to the court. It’s a straightforward method to dissolve the marriage where both the parties peacefully agree to the separation. According to Section 13 (b) of the Hindu Marriage Act, 1955 for a statutory interregnum understanding, a cooling period of six months between the first and the last motion for divorce by mutual consent so as the possibility of cohabitation and settlement could be explored. This period of 6 months is called the cooling-off period.

APPLICABILITY OF COOLING PERIOD IN CASES OF DIVORCE

The expenses are the clearest preferred position of consensual divorce. Consensual divorce that stays uncontested is sort of often the foremost economical method of dissolving the wedding. The minimal effort of the cooling period isn’t, be that because it may, but it’s the littlest bit of leeway in consensual divorce. In the event that the degree of contention between the 2 partners stays low, a consensual divorce offers an approach to stay it that way. It is extremely private and progressively helpful and is helpful to keep a greater amount of your advantages in all of your personal assets and not on the hands of the law, and other required things within the procedure of the dissolution of marriage. Separation by mutual consent expels superfluous squabbles and saves a lot of time and money. With the expanding number of uses being applied for a separation, a consensual divorce is the best alternative. Uncontested separation offers to break away life partners the chance to finish their marriage discreetly and with dignity.

UNDER WHAT CIRCUMSTANCES IT CAN BE WAIVED OFF?

In Abhay Chauhan v. Rachna Singh, 2006 both the parties were 30 years old, well educated, and mature and the marriage of the parties was solemnized four years ago and there was absolutely no possibility of reconciliation. The Delhi High Court in such a case held that the cooling period of 6 months can be exempted in certain cases but this controversy is still continuing. High Courts are overwhelmingly waiving this period by calling it directory rather than mandatory provision but some high courts beg to differ.

In an important judgment of Amardeep Singh vs Harveen Kaur on 12th September 2017, the Supreme Court held that this cooling period of 6 months can be waived in cases of mutual consent. Section 13B (1) of the Hindu Marriage Act deals with the petitions sustainability therefore it cannot be abolished and Section 13B (2) in spite of being administrative should be repealed after the details of every situation as they may vary from each other, wherever the little possibility of reconciliation is seen.

In the Avneesh Sood vs. Tithi Sood case and in the Shikha Bhatia case vs Gaurav Bhatia & Ors case, the courts held that a spouse who undertakes to comply with the consent given in the first motion for the dissolution of marriage under Section 13B (1) of the Hindu Marriage Act and for filing a second motion he/she would not be allowed to withdraw such an undertaking subject to an agreement reached between both the spouses.

Rajiv Chhikara vs. Sandhya Mathu, the Delhi High Court held that retracting from mediation would be considered as mental cruelty. The Court also noted in the case that the partner had lived apart since 2009 and that their relationship was now beyond repair. Therefore, under these circumstances, one partner demands that the marital bond be maintained and the same would be as putting the partner in extreme mental cruelty.

In Suman v. Surendra Kumar, the High Court of Rajasthan addressed this question for the purpose of the cooling period whose purpose is to give both the partner time and opportunity to reflect on their decision. The partners or one of them may have second thoughts in this cooling period and may change their minds about the dissolution of marriage.

However, the court always takes into consideration the following aspect before waving off the cooling period:

1. The statutory cooling period of 6 months as given under Section 13B (2) and the period of one year as specified under Section 13B (1) is already over before the commencement of the first movement of the divorce case.
2. If the parties have already dealt with their differences and have come to terms in matters such as alimony, custody of their child, and all other disputes between them then the waiting period only increases their agony and there is no point of it.
3. That all means of conciliation/mediation and efforts made in terms of Section 23(2) of the Hindu Marriage Act,1955 and Order XXXII A Rule of Code of Civil Procedure have failed to reunite and save the marriage, and no hope is left for saving the marriage.

Thus, the Supreme Court has given family courts the discretion to determine whether to waive the six-month cooling-off period or not. The Court also held that the application for a waiver of the cooling period can be made as early as one week after the divorce petition had been filed in the court.

SOME OTHER IMPORTANT CASES UNDER SECTION 13 (B)

In the Sureshta Devi v. Om Prakash case, the Hon’ble Supreme Court held that the phrase ‘living separately’ refers to not living as husband and wife. It has no reference to where the spouses live. It is possible that the partners may are living under the same roof and still may not live as husbands and wives. The partners don’t wish to fulfill marital obligations. The Supreme Court of India had ruled that mutual consent is a sine qua non I.e an essential condition for passing a decree of divorce and the said agreement must be binding and subsist until a final decree of divorce has been issued.

In Hirabai Bharucha vs. Pirojshah Bharucha, the High Court held that the courts are obliged to make every effort to maintain the institution of marriage. That is an arrangement between the partners specifying the terms of settlement runs counter to public policy, they should be regarded as void ab initio and it is unenforceable and, in such cases, it cannot be recourse to contempt proceedings.

The court ruled that where a solicitation is submitted for divorce through common concurrence under Section 13B of the Act, the Court will move that the concurrence granted by the mates persists until the date of the allocation of the divorce decree. And if one mate freely withdraws its support, in view of the provision of Section 13B of the Act, the Court doesn’t have the power to grant a divorce decree by collective concurrence.

CONCLUSION

Consensual divorce refers to that stage where both the partners dissolve their marriage by mutual consent. Divorce is an equally important part of society as marriage. As we all know that all marriages are not perfect and cannot be sustained or continued, ending such marriage is the best possible damage control that can be done for both spouses. Divorce by Mutual-consent is one of the recent addition to the Indian jurisprudence of divorce and is fairly integral. Earlier, Indian couples resorted to the very time-consuming and expensive method of ground-based litigation, which did no good to the parties but rather induced animosity between them and involved many maligning.

Reference: 

1. https://nrilegalconsultants.in/waiving-off-period-of-6-months-cooling-off-period in-case-of-a-mutual-divorce/ 
2. https://www.latestlaws.com/latest-news/couple-gets-divorce-without-6-month cooling-off-period/ 
3. https://www.thehindu.com/news/national/sc-sanctions-divorce-to-couple-without six-months-cooling-off-period/article25237873.ece 
4. https://health.economictimes.indiatimes.com/news/industry/future-of-artificial intelligence-in-healthcare-in-india/56174804

This article is written by Tanya Arya, a second-year law student at Vivekananda Institute of Professional Studies.

–Report by Muskan Chanda

Facts

• An application was filed by the Respondent under Section 12 of the Protection of Women against Domestic Violence Act, 2005 ( DV Act) before the Chief Magistrate, Tis Hazari Court, stating that she was already married when she met the petitioner in the year 2009.
• In 2014 respondent got married to the petitioner after obtaining a divorce from her husband. The respondent had a son, named Master Jatin, aged thirteen years, from her previous wedding. The petitioner had not disclosed his marital status to the respondent at the time they each met thus inducing the respondent to marry him. The petitioner executed a wedding Agreement to indicate his genuineness and responsibility towards the respondent and her kid.
• Within the agreement it had been mentioned that the respondent was married and incorporates a son from her previous wedding. Later the petitioner herein told the respondent that his spouse is on dialysis and wouldn’t survive long and so he’s trying to find a life partner.
• Further, the respondent took a divorce from her husband and got married to the petitioner in 2014. Another Agreement-cum-Marriage Deed was entered into between the petitioner and also the respondent on 22 November 2014.
• The petitioner herein had organized a rental accommodation and both of them were living as husband and wife. The name of the petitioner is mentioned as the father of the kid of the respondent in the school records. In the bank accounts of the respondent, the petitioner is shown as a nominee.
• Differences arose between the parties and also the respondent was subjected to physical and mental abuse by the petitioner. The respondent filed an FIR against the petitioner. The respondent prayed for an order restraining the petitioner from evicting the respondent from the rented accommodation. An application for a grant of interim maintenance has conjointly been filed by the respondent.

Petitioner’s Submission

The learned counsel for the petitioner contends that an application under Section 12 of the DV Act could be filed solely by an aggrieved person. According to the definition of “aggrieved person” under Section 2(a) of the DV Act. An aggrieved person has been defined as any woman who is or has been, in a domestic relationship with an individual and who alleges to have been subjected to any act of domestic violence by that person. He states that the respondent in her application has admitted that both the parties were married when they met. When the respondent knew that the petitioner was married to somebody else the respondent cannot claim any relief under the DV Act. Till the issue of maintainability is not decided, the decision to pay ad-interim maintenance to the respondent is unreasonable.

Respondent’s Submission

The learned counsel for the respondent contended that the respondent and petition got along in the year 2009 and got married in the year 2014 and they resided together for 6 years before the difference arose between them in the year 2020. He contends that it was not as if the petitioner was a casual visitor to the house. The learned counsel for the respondent states that the petitioner has filed an affidavit and entered into a contract with the respondent stating that he has married the respondent and that he would take care of the respondent and the child. He further stated that in school records the petitioner is shown as the father of the child and in the bank accounts of the respondent, the petitioner is shown as the nominee. Hence, the application filed by the respondent was maintainable and the orders of the learned Metropolitan Magistrate and the Additional Sessions Judge rejecting that directed the petitioner to pay ad-interim maintenance of Rs. ten thousand per month to the respondent does not warrant any interference.

Judgment

The learned Metropolitan Magistrate passed an order on 26 October 2020, had directed the petitioner to pay a sum of Rs ten thousand per month to the respondent herein as an interim arrangement. The principal challenge is that the order could not be passed since the application under the DV Act was not maintainable as the respondent is not an aggrieved person.
In case the Metropolitan Magistrate, after evidence is led, concludes that the respondent herein was not entitled to the protection of the DV Act then adequate safeguards must be made to ensure that the respondent returns the amount received by her as interim maintenance in terms of the order dated 26 October 2020, passed by the learned Metropolitan Magistrate back to the petitioner with interest.

Kerala High court on 3rd June 2021, held that false allegation of impotency or erectile dysfunction against a spouse is considered to be “mental cruelty”. This judgment was made in the divorce case of a doctor- couple.
As per the Hindu marriage act, cruelty means that the other party has, after the solemnization of the marriage, treated the petitioner with cruelty. It may be physical or mental. It may be words or gestures or even by mere silence. That’s the reason here false allegation is considered as “mental cruelty”. Whereas cruelty is also a ground for divorce.

The appeal has filed by the husband against the order of the family court. The respondent accused that her husband was impotent and is not able to perform sexually, which was contradicted by her statements and lack of evidence. Despite it, the husband was willing to undergo a medical test.
The advocate for the applicant relied on K.Srinivas Rao v. D.A. Deepa in which it was held that defamatory allegation against the spouse or his or her relatives in the pleadings amounts to causing mental cruelty to the other spouse. And in Gangadharanv, T.K. Thankam, the court held that false, scandalous, malicious, baseless, and unproved allegation made by one spouse, whether by letter or written statement or by any other mode, amounts to cruelty.

Therefore, the Kerala high court bench of justice Muhamed Mustaque and Kauser Edappagath has held that a false allegation of impotency or erectile dysfunction amounts to mental cruelty.

–Report by Riddhi Dubey