The fact remains that the Hindu
Marriage Act has been in force since 1955, but the high divorce rates
are a recent phenomenon.
There seems to be a concern, perhaps reflected in recent comments from
courts about the Hindu Marriage Act,1955 and the impact it has had on
breaking up homes. The spiralling divorce rate, a reality today, has
been blamed on the Act. The fact remains that the Act has been in force
since 1955, but the high divorce rates are a recent phenomenon.
'Divorce' is seen as a Western notion. Marriage in the Hindu tradition
has been portrayed as a samskara and a permanent state. In fact
however, Hindu communities did have approved forms of withdrawing from
a spouse's company and dissolving marriages, including supersession of
the wife and divorce of either the husband or wife. The concept of
divorce, including extrajudicial divorce or divorce without going to
court was recognised by the custom and practised, though mostly among
the so-called lower castes or classes. This continues to be recognised
by the Act.
The Hindu Marriage Act, 1955 has no doubt liberalised divorce for
Hindus in general. However, the criticism that the Act makes
divorce all too easy needs to be taken with a pinch of salt. In 1955,
the major grounds for divorce available were "fault grounds" meaning
that one of the spouses had a fault or infirmity which made it
difficult for the other to live with him or her. The 'innocent' party
could claim a divorce against the 'wrongdoer'. This was a positive step
and essential as many of the grounds such as adultery hit at the very
basis of marriage.
In 1964, "limited breakdown" grounds were introduced for the first time
which allowed either party to file for divorce if there was no
resumption of cohabitation after a decree for restitution of conjugal
rights or judicial separation. For the first time, the legislature
allowed a marriage tie to be terminated either by the 'innocent' party
or by the 'wrongdoer.'
In 1976, "mutual consent" grounds were brought in which meant that
Hindu couples could seek a divorce even if neither of them was at
fault. This has been criticised by traditionalists for being
detrimental to the survival of the family unit. In the same year,
'cruelty' was upgraded from being a ground for judicial separation to a
ground for divorce.
A lack of guiding principles to say what degree of cruelty is required
for a divorce and convenient judicial liberalism has led to divorces
being granted (or denied) on trivial claims, stereotyped values and
gender biases. In hindsight, newer legislations like the amended
Christian law, have given a much narrower meaning to 'cruelty'
restricting it to such cruelty as to cause a reasonable apprehension of
harm of injury if the person had to live with his/her spouse.
Such criticism has led to the abortion of attempts in 1981 to bring in
the concept of "irretrievable breakdown" in its true form where either
party could unilaterally seek a divorce on the ground that the marriage
had irretrievably broken down. This was regarded with deep suspicion by
feminists who felt that it would be misused by men.
The freedom of two individuals to separate if they mutually agree must
continue to be recognised. Children must be adequately protected
through child support and the custody orders must take into account the
material as well as emotional needs of the child. The remedy lies in
strengthening counselling and other ADR (alternative dispute
resolution) mechanisms within and outside the family court structure
and not doing away with divorce.
http://www.deccanherald.com/Content/Jun292008/panorama2008062875921.asp
