In the recent times, our society has opened itself to several issues that were taboos until recent times. One such issue that comes to mind is that of divorce between married couples. Although the term has achieved a household status in Indian society, its innate technicalities are still far from the comprehension of the masses.
To resolve confusion, let us review what we broadly mean by a case of divorce. Divorce refers to a rift between any married couple that can no longer bear the weight of the relationship. In our society, we often come across cases of divorce. A case of divorce is a legal procedure where the law dissolves a marriage and certifies the two individuals as divorced/unmarried. There are three types of decrees that a court may pass in a case of divorce by mutual consent:
- Restitution of Conjugal rights
- Judicial Separation
- Decree of divorceÂ
In a restitution of conjugal rights decree, the court analyzes the present situation of the couple and orders them to stay together for a certain period (period decided by the court).
This works the following way: "If either the husband or the wife, without reasonable excuses, withdraws from the society of the other, the aggrieved party may approach the Court for restitution of conjugal rights"Â
If the decree of restitution of conjugal right is not honored for a period of more than one year, subsequent to the date of the decree, it becomes a ground for divorce.
This is done to give the marriage a 'second chance' lawfully so that matters may improve with time. In cases where the court senses some ray of hope, it provides the couple with the benefit of time so that they can work out their own problems and do not end up with severe consequences to a rash thought.
Judicial separation refers to an order from the court that demands both parties to stay aloof for a stipulated period of time, during which they must not see one another whatsoever. In case the couple fails to maintain distance, the case is terminated and the divorce does not stand a chance. This acts as a psychological constraint for both parties, where distance could rekindle the fire in a relationship and save the marriage.Â
In certain cases, when the court is convinced about the hapless situation of a marriage, it grants the couple a decree of divorce without any significant trial. Such cases indicate the necessity of a divorce for couples that have no hopes for any amnesty. This is applied to cases involving infidelity, domestic violence, etc. After this, the court may or may not probe alimony, depending on the status of the respective case.
However, sometimes the decision given to a case by the court of law may not satisfy the petitioners or respondents. The petitioners/respondents then have the option of filing a case of divorce further at a higher court in the hierarchy. For example, if a couple is not granted a divorce after a trial at the District Court, they could apply for a case at the High Court and then at the Supreme Court.Â
Once the Supreme Court makes a decision about the couple, it is final and cannot be further challenged. This makes sense as the three different levels of the court act as three screening processes for a case to finally derive an ultimate decision. Normally, in a case of divorce by mutual consent involving children, it is the mother that gets the rightful custody of children with visitation allowances for the father.
Irretrievable breakdown of marriage
Due to certain technical loopholes in the system, a provision for irretrievable breakdown of marriage has been introduced in the constitution for cases where both or either parties expect nothing but a divorce. This aids cases wherein both or either part is inevitably unhappy or dissatisfied with the relationship. As per the 71st report of the Law Commission of India (Chapter 6, Restitution of Conjugal Right, 13-C), there are undertakings being made to incorporate a special section under the Indian Penal Code, 1860 that provides quick and less complicated relief to couples that are facing the dilemma of a definite divorce.
Under section 13-B of the Hindu Marriage Act of 1995, a married couple can file a case of divorce in a court of law, upon deciding in sound mind about the end of their relationship. After this, the court is accountable for resolving the matters for the couple such as: Â the segregation of property, children, or any other relevant factors that need consideration.
This, however, does not apply to couples that fall outside the Hindu religion as per law. Just how there is a legal binding to attain marital status, the constitution also provides for a solution to dissolve the marriage. However, due to religious blockage, some religions find it difficulty in availing legal retreat in case of a failing marriage.
Although divorce may never build a home for a family, it often provides for the development of two separate homes that would flourish more peacefully as two individual entities, with due respect for one another.
