Marriage and Family law in india

Concept of Marriage 

Marriage is one of the universal social institutions. It is intimately connected with the organization of family. In fact, family and marriage are complementary to each other. Webster defines marriage as “the institution whereby a man and a woman are joined in a special social and legal relationship to make a home and raising a family.”

 

Marital Problems  

Conflict in marriage is inevitable, whenever two people get together eventually some of the belief systems and personal habits of one will annoy the other, regardless of the degree of love. In healthy relationships, couples learn to accept and resolve a conflict. But in case of unhealthy relationship marital conflicts arise due to several reasons. When there is a conflict between role performance and role expectation of the spouses it leads to maladjustment of husband-wife relationships and marital disruptions, as a consequence.

 

Stages of marital discord

Ignorance: Couples avoid confrontation by ignoring discussion of their problems.

An assertion of Demands: When the problem becomes a misery and looms large they start voicing their thoughts and opinions at every opportunity which doesn’t work and creates strife.

Compromising and Negotiating: They begin to question their compatibility as pressure mounts due to demands of time management, hectic schedules, stress from their parenting responsibilities, financial burdens, etc.

Resignation: Due to hopeless unending conflicts the couples feel the need to go for expert marriage guidance.

 

Changing profile of marital discord

A Hindu marriage was considered to be an indissoluble tie between the husband and the wife. With the emerging strains and challenges, we see a transformation in this view. This change is due to growing discontent among the younger generations, communication-gap, changing roles of husband and wife, and tensions of fast life. This has an adverse impact on the relationship of married couples which leads them to seek legal help in solving their marriage problems. By the time people get to the lawyer’s office, they have usually made up their minds to get a divorce, but few people do change their minds and want to give their marriage one last chance. In that case, what is essential is that both parties should listen and acknowledge what the other person has to say.

 

Reasons for matrimonial disputes – The most prevalent reasons for Divorce in India are –

 

Infidelity: If there is another man or woman in a partner’s life, then he/she is not in a committed relationship.

Domestic Violence: is a pattern of violent physical and mental behavior of one member of the family towards another.

Control: Exerting unnecessary Control and wanting to “get things done your way”.

Finances: If one spouse is a spendthrift and another is a saver, conflicts are bound to arise.

Lack of Commitment: failure to develop commitment and sincerity towards their marriage and spouse.

Lack of Communication: spouses rarely spend quality time communicating with each other  and disillusionment creeps into their marriage.

 

Matrimonial reliefs

Divorce 

Dictionary defines divorce as “the legal separation of man and wife.” The legal system can deal with the legal issues but is not equipped to deal with the social and emotional issues of the couple. Once each of the participants is helped and supported to resolve the emotional and social issues, they are in a much better position to efficiently deal with the legal and financial matters.

 

Divorce in India  Divorced people are no longer looked down and judged by the society.

 

Judicial separation merely implies legal separation without a divorce. The aggrieved spouse may present a petition under section 13 of the Hindu Marriage Act 1955, praying for a decree of judicial separation. If there is no resumption of cohabitation between the parties to the marriage for one year or upwards after the passing of the order for judicial separation, the couple may apply for divorce

 

Restitution of conjugal rights

When one spouse leaves the other without any reasonable cause, the aggrieved spouse may seek court intervention to restore a relationship. This remedy has been statutorily provided under all personal laws, Section 9 of Hindu Marriage Act, Section 32-33 Divorce Act, Section 36 Parsi Marriage, And Divorce Act and Section 22 of the Special Marriage Act. While the Muslim law has no statutory provision but, from texts and principles of Mullah, it means right to stay together. The following will have to be proved:-

 

The withdrawal by the respondent from the society of the petitioner (aggrieved party).

The withdrawal is without any reasonable cause or exclusive or lawful ground.

There should be no other legal ground for refusal of the relief.

The court should be satisfied with the truth of the statement made in the petition.

 

Matrimonial dispute resolution – Family courts

The need of family courts was made by the late Smt. Durgabai Deshmukh. Any dispute that arises in a marriage between the parties irrespective of their caste or creed and validity of marriage, falls under the jurisdiction of the family courts. The family courts entertains petitions on property disputes between spouses and  partition of the property. A suit filed by wife for return of gold ornaments, cash etc., given at the time of marriage even after death of husband being one arising out of marital relationship though not between parties to marriage[7]. The family court can also pass orders or injunctions in the circumstances arising out of a marital relationship.[8]

 

The Act was expected to facilitate satisfactory resolution of disputes about the family through a forum supposed to work expeditiously in a just manner and with an approach ensuring the maximum welfare of society and dignity of women.

 

Hindu Marriage Act

Keeping in view the high rate of marital discord, several matrimonial reliefs have been provided in the Hindu Marriage Act, 1955. Some of them are the restitution of conjugal rights under Section 9; Judicial separation to help cool down tempers under Section 10; classification of marriages into void under Section 11 and voidable under Section 12 for nullity of legally irregular marriages, and finally, divorce under Section 13 of the Act. Provision has also been made to help the victim spouse for maintenance pendente lite and expenses of proceedings under Section 24, permanent alimony and maintenance under Section 25.

 

Grounds for divorce in India mentioned under section 13 of the Hindu Marriage Act, 1955.

 

Adultery- indulging in any sexual relationship including intercourse outside marriage

Cruelty- Mental and physical injury eg denying food, dowry-related abuses, perverse sexual act.

Desertion – If a spouse voluntarily abandons his/her partner for at least two years, the abandoned spouse can file a divorce.

Conversion – the spouse converts into another religion, other spouse may file a divorce case.

Mental Disorder –if the spouse of the petitioner suffers from incurable mental disorder.

Leprosy –virulent and incurable form of leprosy, the other spouse can file a divorce

Venereal Disease- spouse suffering communicable veneral diseaseeg- AIDS, Syphilis and Gonorrhea;

Renunciation- spouse renounces all worldly affairs by embracing a religious order.

Not Heard Alive- spouse not seen or heard alive for a continuous period of seven years, the other spouse should need to file a divorce if he/she wants to remarry.

No Resumption of Cohabitation – if the couple fails to resume their cohabitation after the court has passed a decree of separation.

 

Grounds for divorce for wife Under section 13(2) –

 

If the husband has indulged in rape, bestiality, and sodomy.

Under Hindu Marriage Act the husband has again married another woman inspite of the first wife being alive, the first wife can seek for a divorce(Bigamy)

A girl was married before the age of fifteen and renounces the marriage before she attains eighteen years of age.

If there is no cohabitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest a divorce.

Divorce by Mutual is when husband and wife come to a mutual understanding that the marriage is dissolved amicably,under section 13B of Hindu marriage act 1955 the Marriage Laws (Amendment) Act 1976

 

Muslim Marriage Act

When the marital dispute worsens, Islam states certain remedies which are not legal remedies. Firstly, advise, forsake them in bed and lastly strike them. Muslim law also provides for the remedy of Divorce. The divorce under Muslim law is of two types:-

 

Extra judicial divorce

Judicial divorce

The extra judicial divorce consists of following divisions:

 

By husband: Talaq, Ila, Zihar

By wife: Talaq-i-tafweez, By mutual consent-Khula, Mubarat

 

Talaq

Talaq -e-Ahsan: It consists of a single pronouncement of divorce. It is irrevocable even after expiration of period of iddat.

 

Talaq-e-Hasan: It is affected when the husband repudiates his wife during a Tuhr (period of purity) in which he has not had carnal connection with her and he repeats the repudiation during the next two tuhrs which makes the divorce final and irrevocable.

 

Talaq-ul-Biddat: Three pronouncements are made in a single breadth. It becomes irrevocable as soon as it is pronounced. It is considered to be the worst form of divorce.

 

Ila: If a husband after having attained puberty, swears by god not to have sexual intercourse with his wife for a period of four months or for any unspecified period, he is said to make Ila.

 

Zihar: If husband compares his wife to his mother or to a female within prohibited degrees of relationship, the wife has right to avoid him until he has performed penance for his sin.

 

Khula: Khula is separation by putting an end to the matrimonial bonds and rights. It is that right in which the wife agrees to give a certain amount of consideration to the husband for her release from the marriage ties.

 

Mubarat: Mubarat is the dissolution of marriage by mutual agreement. There is mutual desire for the separation of spouses in this kind of divorce. The offer may be made by any party either husband or wife.

 

Talaq –e-Tafweez: A husband may delegate his power of talaq to his wife. An agreement is made before or after marriage providing that the wife is at liberty to divorce herself from her husband under certain specified conditions. It is valid, provided that such power is not absolute and unconditional and that the conditions are reasonable and not opposed to law.

 

The judicial divorce consists of:-

 

Dissolution of Muslim Marriage act, 1939.

Lian

Fask

Dissolution of Muslim Marriage Act

An Act to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie. Whereas it is expedient to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by a woman married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie.

 

Lian: When the husband charges the wife with charges of adultery, and later the charges are proved false, the wife is entitled to sue and ask for a divorce. The mere charge won’t dissolve the marriage automatically; it is only after the decree that the marriage is dissolved.

 

Fask: Muslim law allows a lady to approach a qazi for dissolving a marriage under following conditions:

 

If the marriage is irregular.

If the marriage was within prohibited degrees etc

Under section 2 of this Act, a Muslim woman can seek divorce on the following grounds for divorce in India:-

 

The husband’s whereabouts are unknown for a period of four years.

The husband has failed to provide maintenance to the wife for at least two years.

The husband has been under imprisonment for seven or more years.

The husband is unable to meet the marital obligations.

If the girl is married before fifteen and decides to end the relationship before she turns eighteen.

Alternative methods of conflict resolution

A few alternatives to legal remedies could be:-

 

1) Mediation is a form of Alternative Dispute Resolution (ADR) which aims to assist two or more disputants in reaching an agreement. The content of that agreement is determined by the parties themselves rather than accepting something imposed by a third party. Mediators are those impartial professionals who use appropriate techniques and skills to open or improve dialogue between disputants, aiming to help the parties reach an agreement on the disputed matter.

 

2) Marriage Counseling helps one think more clearly about what is going on and what he/she wants. Counseling helps better communication and provides innovative ways to resolve conflicts. Divorce counseling is often a useful means of ending the marriage peacefully, and is usually encourage when one of the parties, typically the non-initiator of the divorce, requests marriage counseling. In divorce counseling, the initiator is provided with a safe setting to tell the other spouse why her decision is irrevocable. And the spouse gets a safe place to tell the initiator his feelings about the divorce and the relationship.

 

The goal of premarital counseling is to identify and address any potential areas of conflict in a relationship early on, before those issues become serious concerns, and teach partners effective strategies for discussing and resolving a conflict.

 

Impact on children

Divorce is a very painful arena for someone’s life as it disturbs the whole life of two partners, and is even more painful if they have children.. Some things which affect children during marital conditions are:

 

When there is conflict in the family, a large number of parents/guardians spend little time discussing academic issues with their pupils.

Most pupils do not confide to their peers when their parents are fighting.

More female pupils have average or poor academic performances.

School attendance is weak, affects the teacher-pupil relationship,

 

How to deal with children after a divorce

After divorce, many experts recommend following while handling small kids

 

Be Honest: Child should know what is happening, makes the child less stressful.

Assure them it will be fine: It is your duty to assure the child that it will be fine.

Let them know it is not their fault: tell them that in no way this is their fault and you both still love them very much.

Come to Agreements with your ex-partner: Talk to your ex-partner about your children and come to agreements together even when you are not together, you must show a united front.

 

Welfare of children 

The welfare of the child is to be measured by money or by physical comfort only. The moral and religious welfare must be considered as well as physical well being.

 

Suggestions for marital issues

Following are the suggestions specified in the light of findings of the study:

The marital problems occur due to unfulfilled basic needs, misunderstandings, alcohol addiction, dowry demand, ego problems, and difference of opinion. Thus all the above complaints disturb the entire family. To avoid the above circumstances it is necessary to develop understanding, sympathy, like a sense of humor and attitude of ‘give and take.’

Counselling plays an important role to improve mutual understanding and healthy relationship.

Family issues should not be discussed in front of neighbors, friends or any.

Awareness of roles and responsibilities -Avoid role conflict to prevent marital strife.

NGOs intervention must be involved in this process.

Family organization programs should be conducted to prevent family disorganization.

Counseling centres should concentrate on premarital counseling awareness & adjustment pattern

A social worker can help these families or couples by playing the role of facilitator, and a guide.

 

Conclusion

Marital conflict happens when the need, desires, wants of the couples remains unfulfilled, when one of the peoples’ self-interests becomes his or her only consideration. It is through adjustment and willingness to sacrifice for each other that will lead to the re-establishment of friendly relationship. Thus, preservation of marriage should be considered a priority for it is the basic and one of the essential institutions of the society.

 

FAMILY LAW FIRM, OFFICE Address- Proprietor- Rakesh Lodhi Advocate, shop no.117, krishna complex, kuchahry chowk, opposite district court raipur, near coffee house, near chawala petrol pump, side by daga college, jail road raipur chhattisgarh, pin-492001, my contact no.-

092 29 977000 , 093 29 837709, Email – rakeshlodhiadvocate@gmail.com