Author: Megha Pillai, Student at Jindal Global Law School
INTRODUCTION
India has always expressed an affinity for upholding its social ethics and values. It comes as no surprise now that India holds one of the “lowest divorce rate ranks in the world. Statistics shows that only 1 out of 100 Indian marriages end up to a divorce which is quite low in comparison to America’s 50% of marriages turning into breakups”[1]. The reason for this actually stems from the Hindu traditions and marriage customs where marriage is treated as a ‘religious sacrament’. In such a social scenario, a divorce would not be considered as an option even, in a bid to maintain the sanctity that a marriage is construed to be. In fact, because of the religious connotations of marriages, divorce was not even codified and demarcated in legal terms until the 1955 Hindu Marriage Act (the Hindu Marriage Act governs Hindus, Sikhs, Buddhists and Jains, whereas Christians are governed by the 1869 Indian Divorce Act and Muslims, under the 1939 Dissolution of Muslim Marriages Act)[2].
This myriad of divorce laws, as rightly stated by Athulya, in the article ‘Know your Legal Rights: Divorce Laws in India’, “works with some conditions and not in all situations”. And couples who do split are constantly under public scrutiny because of the immense social stigma that is attached to divorces. And the gender gap that is visible in the graph of people divorced- showing more people to be divorced or separated, is indicative of India’s gender-based bigotry, and inherent patriarchal oppression. A divorce is always construed to be a woman’s failure.
Divorce isn’t an easy option to avail of, especially for the women in India. The law has set down some ways of support to come of aid for divorced women such alimony and maintenance, property rights etc. Unfortunately, even though divorce in India still continues to be harsher on women than on men.
WHAT DOES A DIVORCE IMPLY?
Before we go any further with the essay, it is important for us to understand what does a divorce mean in legal terms and what does it imply.
A divorce in simple words is a decree that ends the marital union in the eyes of law. It basically eliminates all the legal duties between a married couple, thus terminating all marital bonds in between them. In India, the process of divorce does involve the intervention of the court and it pertains to matters of child custody, spousal aid/alimony, debt division, property distribution etc.
WHAT IS THE PROCESS OF A DIVORCE AND HOW DOES IT LOOK FOR THE PARTIES INVOLVED?
Now it is important for us to comprehend the process of a divorce. Below stated is a brief explanation of this procedure-
At first, the petition to divorce would have to be filed.
Next comes the service of summons step wherein the other party to divorce is given a notice so as to inform them that divorce proceedings are in order at the behest of the spouse.
The third step is the ‘response’. The party against whom the divorce is initiated has to show up at the court as mandated.
The fourth step is to commence the trials. The court conducts a hearing of both involved parties, inclusive of their petitions, witness and proof.
What follows is the Interim Order stage. Either of the involved parties here can avail of a temporary order with reference to child custody and maintenance.
Leading up to the last step is the ‘Argument’ stage of the proceedings. At this point, the advocates of the parties present the conditions of their clients and this becomes very vital to the procedure.
The final step is the final order. The final order translates to the pronouncement or the affirmation that the marriage has been “dissolved”. [3]
This is just a brief insight into the long, tiring process that a divorce is. The process of a divorce is tough enough already, and more so for a woman because women often take a step back in their professional lives in order to cater for their family and children; thus, keeping them on a lesser advantaged position than men. And it’s not a new fact that women have long been struggling to get an equal pay at the workplace. So, for a woman to step up and have a career after having taken a backseat due to the marriage is a difficult task.
WHAT MAKES THE DIVORCE HARSHER ON WOMEN?
Divorces usually seem even-handed from the surface but in the long term, societal conjectures and pressures can pose to be more of a disadvantage for women than for men.
There are multiple factors which makes the divorce harder on a woman. Law attempts to ease this process for women by taking into account aspects such as child-rearing responsibilities, the unequal earning potential etc. but fail to implement it correctly in my opinion. After all, in a society which considers marriage to be the threshold of religious obedience and sanctity, a divorce does not look good, especially on a woman whose life is socially construed to be dedicated to her family and children. And while the law mandates for the husband to continue to financially support the wife and their children in order to provide a fair arrangement to both parties to continue their lives after marriage, the Court cannot ease the social pressures that influences a woman’s career choices after a divorce settlement.
Legal researchers and scholars have to come up with ways to evaluate and restore the lost earning capacity of the wife in order to guarantee her a better life path ahead. [4] Divorce laws have thus always been influenced by the then social scenario and rights of women, and their evolution stands to be a true reflection of the changing role of women in society. [5]
CONCLUSION
Unfortunately, today the view that women do bear the brunt of divorce much more than their once husbands do is our reality. And hence they require more of the public and private support and aid than their ex-spouses. A counter claim however propounds that the evidence regarding these concepts collected in such researches and essays do not display a consistency with regard to all these effects, it instead makes a suggestion that an evaluation of gender discrimination in the consequences of divorce must view all the multiple outcomes. The answer to negate this came in form of a research taken up in 2007 by Andress and Bröckel which found that women’s household incomes 1 year after divorce amounted to only two-thirds of those of their former husbands[6]. The very fact that these truths are slowly coming out in the open bodes well for the society and law will definitely have to evolve and accommodate provisions to help women cope up with such issues.
REFERENCES
- Ambransh Bhandari, ‘Women’s Rights Before and After Divorce in India’, B&B Associates LLP, 8th November 2019.
https://bnblegal.com/article/womens-rights-during-and-after-divorce-in-india/
- Athulya, ‘Know your Legal Rights: Divorce Laws in India’, Vakil Search, 4th December 2019.
https://vakilsearch.com/advice/divorce-in-india/
- Corie Lynn Rosen, “Men v. Women: who does better in a divorce?”, Legal Zoom, 16th September 2020.
https://www.legalzoom.com/articles/men-v-women-who-does-better-in-a-divorce
- ‘Divorce Fact Sheet- Where India stands in the World’, Latest News. Com, 24th June 2015.
https://www.latestlaws.com/did-you-know/divorce-fact-sheet-india-stands-world/
- John Oxley, ‘Divorce and Women’s rights: a history’, Vardags, 13th December 2017.
https://vardags.com/family-law/divorce-and-womens-rights-a-history
- Shephali Bhatt, ‘Happily divorced: Indian women are breaking the stigma around separation like never before’, The Economic Times, 27th January 2019.
- Thomas Leopold, ‘Gender Differences in the Consequences of Divorce: A Study of Multiple Outcomes’, NCBI, 13th April 2018.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5992251/
- Vidhikarya, ‘How to get Divorce in India’, Legal Service India.
http://www.legalserviceindia.com/legal/article-711-how-to-get-divorce-in-india.html
FOOTNOTES
[1] Divorce Fact Sheet, Latest Laws.Com, 2015.
[2] Athulya, Know your Legal Rights: Divorce Law in India, Vakil Search, 2019.
[3] Vidhikarya, “How to get divorce in India”, Legal Service India.
[4] Rosen Lynn Corie, ‘Men v. Women: Who does better in a divorce?’ , Legal Zoom, 2020.
[5] John Oxley, ‘Divorce and women’s rights: a history’, Vardags, 13th December 2017.
[6] Thomas Leopold, ‘Gender Differences in the Consequences of Divorce: A Study of Multiple Outcomes’, NCBI, 13th April 2018.
