The concept of dissolution of marriage evolved to avoid the process of accusations and counter accusations in a divorce proceeding and to avoid unnecessary expenses involved in the process. In a divorce proceeding one party to the marriage must accuse the other of being at fault under one of the statutory grounds. Divorces based on no fault grounds are referred to as dissolution of marriage.
Dissolution of marriage by mutual consent
The only type of no fault divorce explicitly recognized under Indian Laws is the divorce by mutual consent. Here the spouses petition that they have not been able to live together for a period of one year or more and were living separately immediately preceding the presentation of the petition; consequently they have mutually agreed to dissolve the marriage. Before filing the petition, spouses agree on various important issues such as custody of child, alimony to wife, return of dowry items or “Streedhan”, litigation expenses etc. Further, the terms of agreement are to be mentioned in the petition for divorce by mutual consent.
Spouses can file for dissolution of marriage by mutual consent under any of the following provisions: Section 13-B of The Hindu Marriage Act, 1955, Section 28 of the Special Marriage Act, 1954, Section 10-A of The Indian Divorce Act1869.
Grounds for dissolution of marriage by mutual consent
In the case of Sureshta Devi, the Supreme Court explains the grounds for the dissolution of marriage as follows:
“`living separately’ for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression `living separately’, connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition.
The second requirement that they `have not been able to live together’ seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves.
The third requirement is that they have mutually agreed that the marriage should be dissolved.”
Procedure for dissolution of marriage by mutual consent
The process of dissolution is started by filling a petition for divorce by mutual consent. The petition is supported by affidavits from both parties which signify their consent. This is the first motion petition which is presented in the court of Civil Judge senior Division. The petition contains a joint statement by both the parties that they have not been able to live together thus should be granted divorce by the court. The parties are supposed to file a second motion petition after 6 months of filing the first petition where the presence of both parties is must. This is followed by the hearing of both the parties by the judge and on the satisfaction of the court the marriage is dissolved. The parties are supposed to present the 2nd motion petition after 6 months and before 18 months of filing the 1st motion petition giving them sufficient time to reconcile their differences. If the parties do not present the 2nd motion petition within 18 months then the marriage cannot be dissolved by the court.
Further if at the time of inquiry by the court one of the parties withdraws its consent to the divorce petition then the court has no jurisdiction to dissolve the marriage; as it is only in the case of continued mutual consent of the parties that a decree dissolving the marriage can be passed by the court.
Irretrievable breakdown of Marriage as ground for dissolution of marriage
Apart from dissolution of marriage by mutual consent the other way to dissolve the marriage on “no-fault” ground is the concept of irretrievable breakdown of marriage.New Zealand was the first country to accept the concept of “irretrievable breakdown of marriage” in The Divorce and Matrimonial Causes Amendment Act,1920. Since then several countries have accepted it as a ground to seek divorce. In fact, in the United Kingdom, it is the only ground on which one can seek divorce.
Irretrievable breakdown of marriage is the situation where either or both the parties to the marriage are unwilling to live with each other such that they are unable to perform their spousal duties and their differences are beyond reconciliation.
The Supreme Court has flip-flopped on setting irretrievable breakdown of marriage as a ground of divorce. In a recent case of Vishnu Dutt Sharma v. Manju Sharma the Supreme Court dismissed this concept saying that in a situation where a party files a petition for divorce on grounds of irretrievable breakdown and the other party who has suffered from the faults of the petitioner is opposing the same, in that case such a concept would not do justice. But the Marriage Laws Amendment Bill (2013) as passed by Rajya Sabha seeks to add section 13C to the Hindu Marriage Act which will dissolve marriage on the ground of irretrievable breakdown. It requires that the parties must have lived separately atleast for 3 years immediately preceding the presentation of the petition. Here living separately means not living in the same house.
In this case as opposed to the divorce by mutual consent the petition for dissolution of the marriage may be presented by either party to the marriage and the court may dissolve the marriage even if the other party objects it. However, the wife may object to the petition on the grounds of financial hardship.
How is dissolution of marriage different from a divorce?
Divorce and Dissolution of marriage are used to refer to two nearly identical concepts. These are the processes by which a husband and wife end their marriage. Procedures to end a marriage differ from state to state though most states do not differentiate between the two concepts. Divorce could be granted only on the accusation of faults by one spouse on the other. Thus dissolution of marriage came to be used to refer to “no fault” divorces. But the end result of the two processes remains the same i.e. the end of marriage.
Grounds for seeking Divorce
Indian laws in general and The Hindu Marriage Act, 1955 in particular under Section 13 of the Act recognizes the following fault grounds for divorce: Adultery, Cruelty, Desertion, Conversion, Unsoundness of mind, Schizophrenia, Virulent and incurable leprosy, Venereal disease in communicable form, entering new religious order, presumption of death on not being heard of as alive for a period of seven years or more, non-compliance with a decree of judicial separation, non-compliance with a decree of restitution of conjugal rights(fulfillment of one’s obligations as a husband or a wife). The aggrieved party has to take one of the above fault grounds and prove it in the court of appropriate jurisdiction against the other spouse, the divorce is granted on successfully proving the allegation.
Dissolution of marriage
On the other hand, the basis of the claim of dissolution of marriage on “no fault” ground is that at least one of the two parties claims that the marriage is no more viable and the differences are irreconcilable. Here the parties decide to dissolve their marriage by mutual consent rather than choosing the path of accusing each other of various faults. In case a party bases its petition on any fault ground then the dissolution of marriage cannot be claimed but only divorce by prolonged litigation.
For claiming dissolution of marriage the parties to the marriage have to agree on various issues such as custody of child, alimony to wife, property issues etc. whereas in case of divorce such issues are settled by the court itself.
The end result of the two processes (divorce and dissolution of marriage) being the same, the concept of dissolution of marriage evolved with time to save time and expense of the parties if both of them want the marriage to be dissolved or if the marriage has broken down beyond reconciliation.
Family court, special court designed to deal with legal problems arising out of family relations. The family court is usually a consolidation of several types of courts dealing with narrower family problems, such as children’s courts and orphans’ courts. The family court operates according to looser procedures than do ordinary civil or criminal courts. Special intake procedures also distinguish the family court, which screens potential cases to eliminate those not really requiring judicial attention. Family courts were first established in the United States in 1910, when they were called domestic relations courts. The idea itself is much older. In the 19th century, the Court for Divorce and Matrimonial Causes was established in England to relieve the ecclesiastical courts of the burden of such cases. Family courts are created by special statutes defining the types of cases that they are to handle, such as cases involving guardianship, child neglect, juvenile delinquency, paternity, support, or family offenses (i.e., disorderly conduct or minor assaults between spouses). Most family courts do not handle divorce, separation, or annulment cases, although the civil courts occasionally refer such cases to the family court to determine child custody or modification of alimony payments.
pertinent to note here is that Marriage as an institution has become the subject of great judicial scrutiny. There are a number of judicial provisions dealing with marriage and its various aspects. The result is that, in addition to the various advantages that these legal provisions may provide; the privacy of this institution has been threatened. As per studies conducted in Mumbai and Delhi, 40 % of marriages are heading towards divorce. There are also cases of misuse of provisions like Section 498A of the Indian Penal Code, Protection of Women from Domestic Violence Act, Section 125 Criminal Procedure Code, Child Custody laws to name a few.
There are issues like alimony which become the topic of great controversy and cause harassment to families. What further becomes a problem is that personal issues get intertwined with the legal issues and lead to the unnecessary prolonging of the disposal of these cases. The younger generation, being made a scapegoat in the changing times due to the ensuing cultural war between Conservatives and Liberals, wastes its useful youth in the precincts of the litigating corridors of the family courts, criminal courts and magistrate courts waiting in long queues being expectant of receiving justice.
The Family Courts Act, 1984 was part of the trends of legal reforms concerning women. Because of the building pressure from various institutions lobbying for the welfare of women all over the country, the Act was expected to facilitate satisfactory resolution of disputes concerning the family through a forum expected to work expeditiously in a just manner and with an approach ensuring maximum welfare of society and dignity of women. Prevalence of gender biased laws and oppressive social practices over centuries have denied justice and basic human rights to Indian women. The need to establish the Family Courts was first emphasized by the late Smt. DurgabaiDeshmukh. After a tour of China in 1953, where she had occasion to study the working of family courts, Smt. Deshmukh discussed the subject with certain Judges and legal experts and then made a proposal to set up Family Courts in India to Prime Minister Pt. Jawaharlal Nehru.
To this background, a significant development has been the recent setting up of the Family Court in Delhi.
Though such courts have been set up and are functioning in other states, the setting up of a family court in the Capital is a significant development and a step which was necessary to be taken. The main purpose behind setting up these Courts was to take the cases dealing with family matters away from the intimidating atmosphere of regular courts and ensure that a congenial environment is set up to deal with matters such as marriage, divorce, alimony, child custody etc. As mentioned earlier, an effective way of tackling the problem of pendency is to improve the efficiency of the system rather than changing the system altogether. A significant step is to make use of the available human resource. These family courts at Delhi are equipped with counsellors and psychologists who ensure that the disputes are handled by experts who do not forget that while there may be core legal issues to be dealt with; there is also a human and psychological dimension to be dealt with in these matters. The role of the counsellors is not limited to counselling but extends to reconciliation and mutual settlement wherever deemed feasible.
Procedure followed by the family courts- advantages of a conciliatory approach
The Family Courts are free to evolve their own rules of procedure, and once a Family Court does so, the rules so framed over ride the rules of procedure contemplated under the Code of Civil Procedure. In fact, the Code of Civil Procedure was amended in order to fulfil the purpose behind setting up of the Family Courts.
Special emphasis is put on settling the disputes by mediation and conciliation. This ensures that the matter is solved by an agreement between both the parties and reduces the chances of any further conflict. The aim is to give priority to mutual agreement over the usual process of adjudication. In short, the aim of these courts is to form a congenial atmosphere where family disputes are resolved amicably. The cases are kept away from the trappings of a formal legal system.
The shackles of a formal legal system and the regular process of adjudication causes unnecessary prolonging of the matter and the dispute can worsen over time. This can be a very traumatic experience for the families and lead to personal and financial losses that can have a devastating effect on human relations as well. This again points to the importance of having guidance counsellors and psychological experts to deal with such matters.
The Act stipulates that a party is not entitled to be represented by a lawyer without the express permission of the Court. However, invariably the court grants this permission and usually it is a lawyer which represents the parties. The most unique aspect regarding the proceedings before the Family Court are that they are first referred to conciliation and only when the conciliation proceedings fail to resolve the issue successfully, the matter taken up for trial by the Court. The Conciliators are professionals who are appointed by the Court. Once a final order is passed, the aggrieved party has an option of filing an appeal before the High Court. Such appeal is to be heard by a bench consisting of two judges.
Issues of concern- are the Family Courts functioning towards fulfilling their purpose?
The Family Courts’ main purpose is to assist the smooth and effective disposal of cases relating to family matters. However, like any other system there are certain issues which become a matter of concern when it comes to the working of these courts. One such issue is that of continuity. For example, in the family courts at Tamil Nadu, the counsellors are changed every three months. Thus, when cases stretch for a period of time which is longer than this, the woman or the aggrieved person has to adjust with new counsellors and their story has to be retold several times.
A major drawback of the Family Courts Act happens to be that it doesn’t explicitly empower Courts to grant injunctions to prevent domestic violence. While there has been progress, viz the enactment of the Protection of Women from Domestic Violence Act, 2005 which now extends to punishing women for acts of violence as well; there are still issues of jurisdiction to be tackled. It must be understood that the Family Courts Act has to be read in totality i.e. in accordance with the provisions in other laws, for example, the Civil Procedure Code on matters of jurisdiction.
Since the Family Court has restrictive jurisdiction and does not have the power to decide issues of contempt, people do not seem to take the court as seriously as they would a magistrate or a city civil court. Further, it was laid down in the Family Courts Act that the majority of judges should be women. However, this provision has not been complied with. In the course of the workshop organised in March 2002 by the National Commission for Women, it was noted that there were only 18 women judges till then in the Family Courts in India out of 84 judges in all the 84 courts that existed at that time.
Government is empowered to make rules prescribing some more qualifications. Apart from prescribing the qualification of the Judges of Family Courts, the Central Government has no role to play in the administration of this Act. Different High Courts have laid down different rules of the procedure. However, this lack of uniformity could also be one of the reasons behind the fact that family disputes are still being heard by civil courts. Family courts also need to align themselves with women’s organizations and NGOs dealing with the welfare of families, women and children.
Another matter of confusion is that the Act, by virtue of Section 13 provides that the party before a Family Court shall not be entitled as of right to be represented by a legal practitioner. However, the court may, in the interest of justice, provide assistance of a legal expert as amicus curiae. This is an example of which the objective behind the family court is defeated due to the procedural lapses. The fact that the proceedings are conciliatory does not relieve them of the complicated legal issues which may be involved in the family dispute.
The question is whether a lawyer’s participation will be useful or detrimental to the performance of a family court. That is the crucial issue. It was suggested at the workshop that the Women’s Commission should consider whether an amendment could be proposed to allow participation of lawyers subject to a proviso giving power to the court to terminate his vakalatnama if he uses delaying tactics by unnecessary adjournments. If such control is given to the court the lawyers will not be able to get adjournments. Further, a lay person may be totally unaware of the legal jargon that invariably comes into play during the proceedings.
Further, the substantive aspect of the law cannot be ignored because it is what cases are made of. A practical example of a problem with the substantive law is that many times, the husband in a divorce cases resorts to reconciliation mainly because he wants to escape the responsibility of giving maintenance to his wife.
It is evident that the setting up of these family courts was a dynamic step so far as reducing the backlog and disposing off cases while ensuring that there is an effective delivery of justice goes. However, as aforementioned, there are still matters of concern which plague these courts. The issues relating to the functioning of these courts is to be seen in total, as quoted in the examples relating to the procedural as well as substantive aspects of the problems. There are many controversial and debatable issues such as engaging a lawyer due to the specific provisions of the Family Courts Act.
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