A SOCIO LEGAL STUDY OF DIVORCE CASES RELATED TO DOMESTIC VIOLENCE WITH SPECIAL REFERENCE TO KAMRUP METRO AND HOJAI DISTRICT

Janefer Zaved, Assistant Professor, Ajmal Law College, Hojai

ABSTRACT

  Nowadays it has been seen that the Indian society has witnessed an upsurge   in divorce. One of the driving reason behind these divorces are found to be domestic violence by the husband or the in laws of the wife. Reports say that India traditionally has one of the lowest divorce rates globally at approximately 1% of marriages but this figure is steadily increasing.  Domestic violence has emerged as one of the leading causes of divorce in India. According to the national family health survey-5 Approximately 29.3% of married women aged between 18-49 years. Domestic violence serves as a valid legal ground for divorce under various Indian marriage laws such as The Protection Of Women From Domestic Violence Act 2005.  As per  reports the prevalence of domestic violence varies significantly across states in India.  Karnataka reports the highest physical violence rates at 43% followed by Tamil Nadu and puducherry at 41% and Bihar at 39%.  Rural areas show higher violence rates of around 31% compared to urban areas which is 24%.  The leading reason behind the Commission of domestic violence is found to be the demand for dowry or extramarital affair and the urge to remarry.  This paper seeks to explore how in today's world domestic violence have become a driving force behind most of the divorce cases in India.

Key words: Domestic Violence, Divorce, Dowry, Extramarital affair.

Introduction

Marriage, once esteemed as a vital social institution, has undergone considerable changes in the modern era. The increasing divorce rate signifies evolving societal dynamics and shifting perceptions of personal freedoms and rights, contrasting with the conventional perspective of marriage as a lifelong commitment. Domestic violence, a pervasive issue that jeopardises the physical and emotional well-being of victims and undermines the sanctity of marriage, significantly contributes to the increasing incidence of divorces. The institution of marriage, essential to several cultures and nations, is experiencing a redefinition as traditional values, legal interpretations, and individual freedoms evolve. Social priorities have shifted, prioritising individual wellbeing above traditional notions of family dignity, as seen by the rising divorce rates globally, particularly in India. Domestic violence is a primary factor driving this trend, compelling individuals to find means of escaping abusive circumstances.

Divirce? Divortium

A divorce occurs when a marriage is dissolved. The Latin term “divortium,” signifying “the definitive termination of a marital union” or “annulment of legal relations,” has its etymological roots. Divorce legislation differs across nations, though in numerous jurisdictions, an official pronouncement from a judge or authorised entity is necessary. “Martimoniadebentesse libera” is a legal maxim from ancient Rome and Greece asserting that “marriages ought to be free,” pertaining to the issue of whether a spouse can voluntarily terminate a marriage. The Christian church perceives marriage as a sacrament established by God and Christ, rendering it indissoluble by human actions; thus, the autonomy of Western nations to divorce continued until the tenth century, when it was suddenly curtailed. Two renowned ancient jurists, Narada and Parasara, identified five circumstances in which a woman may lawfully divorce her husband and remarry: when he is missing, deceased, renounced the world, declared impotent, or ostracised from society.

When individuals within a family experience physical, emotional, psychological, or financial abuse, it may create an environment of fear and oppression. The manifestations of this issue vary among cultures, regions, and socioeconomic classes, yet its universal character. In India, several victims have been muted and compelled to endure abuse for generations because to the intricate interplay of patriarchal norms, ignorance of the court system, and societal stigma. Divorce rates have increased in recent decades owing to cultural transformations driven by enhanced information, education, and legislative reforms that have empowered individuals, particularly women, to challenge established norms and seek legal recourse.

The institution of marriage and the process of divorce have evolved in society due to the growing recognition of individual rights. Individuals are progressively prioritising personal satisfaction above societal approval, leading to a diminishing stigma around divorce. Assistance for victims of domestic abuse has been facilitated by legislative initiatives such as the PVDA, 2005 (Protection of Women from Domestic Violence Act, 2005), with evolving judicial interpretations of these statutes.

The causes for divorce in India are diverse, reflecting the nation’s religious and secular traditions. “The Hindu Marriage Act of 1955” encompasses Hindus, Buddhists, Jains, and Sikhs, permitting divorce on grounds such as adultery, desertion, and cruelty, the last sometimes including domestic violence. Additionally, for secular and community-specific marital conflict resolution, including the settlement of violent disputes, there are the “Parsi Marriage and Divorce Act of 1936” and the “Special Marriage Act of 1954”. “The Muslim Women (Protection of Rights on Marriage) Act, 2019”, exemplifies a progressive strategy for safeguarding women’s rights in marriage by abolishing Triple Talaq and establishing divorce regulations based on personal law for Muslims.

The “Family Courts Act of 1984” aimed to enable the efficient, swift, and amicable resolution of marital disputes. Systemic barriers, including social stigma and procedural delays, are often revealed in domestic violence cases. Numerous victims have successfully extricated themselves from abusive relationships due to legislative safeguards, including the PVDA, 2005, which empowers survivors to pursue protection, maintenance, and custody.

In human-animal partnerships, progeny need reciprocal understanding and cooperation. Generally speaking, when two people enter into a legally recognised and socially accepted union, the state recognises them as husband and wife and recognises their children as legitimate members of society. Each spouse has legal rights and duties to the other when they tie the knot. Marriage was not a legal institution in prehistoric times. The first humans exhibited sexual freedom and had a lifestyle akin to that of animals. In the past, ascertaining a mother’s status necessitated the exhibition of sexually suggestive conduct. Divorce rates are increasing, and this study examines the intricate relationship between the two. Emphasising the need for additional reforms and support systems to ensure justice and rehabilitation for survivors of domestic violence, it tries to study how societal attitudes, legal frameworks, and economic independence contribute to this trend.

Domestic violence as a key factor in divorce decisions:

Domestic abuse substantially compels people, especially women, to choose divorce as a method of evading violent relationships. The cultural stigma associated with domestic abuse is progressively being confronted, as victims choose their own well-being over community norms. Data from increasing divorce cases associated with claims of cruelty under the Hindu Marriage Act and other statutes in other legal systems indicates that domestic violence continues to be a primary contributor to marital dissolution

Impact of family and societal pressure on domestic violence:

The familial and societal pressures often sustain domestic abuse by dissuading victims from voicing their experiences or pursuing legal recourse. Conventional notions on the preservation of family honour, together with gender-specific expectations of resilience, foster an atmosphere in which abuse is either normalised or overlooked. Nonetheless, when families and communities assist victims, they assume a transforming role in enabling people to face abuse, underscoring the dual nature of social impact.

Effectiveness of legal frameworks in addressing domestic violence-related divorces:

It is posited that while legal frameworks such as the Hindu Marriage Act, Muslim Marriage Act, and Special Marriage Act provide mechanisms for resolving domestic abuse and obtaining divorce, procedural delays and insufficient legal understanding among victims hinder their efficacy. The Family Courts Act seeks to streamline conflict settlement; yet, it often fails owing to structural inefficiencies. The repeal of Triple Talaq exemplifies progressive reform; yet, its effects differ according on enforcement and popular acceptability.

Influence of societal attitudes on access to legal remedies:

The society perceptions about divorce and domestic abuse profoundly influence the accessibility and efficacy of legal remedies for victims. In societies where divorce is stigmatised, victims may encounter other obstacles, such as ostracism or financial dependence, discouraging them from seeking legal recourse. In contrast, evolving perspectives in urban and educated environments reflect an increasing acceptance of divorce as a valid reaction to spousal abuse, thereby motivating victims to pursue justice.

Conclusion

The increasing incidence of divorces, especially those stemming from domestic violence, underscores the changing dynamics of marriage and personal rights in India. This research has explored the complex nature of this topic, analysing cultural, social, and legal aspects. It emphasises that domestic abuse is not only a private issue but a social concern need community intervention. Legal frameworks with progressive changes such as the removal of Triple Talaq, have created pathways for victims to pursue justice. Nonetheless, institutional inefficiencies, cultural shame, and insufficient knowledge often obstruct access to these solutions. The research underscores the essential influence of familial and social perspectives in either sustaining or contesting domestic abuse. Historically, conventional standards have suppressed victims, but evolving cultural attitudes are enabling people to choose personal well-being above community obligations. The interaction of these elements underscores the intricacy of tackling domestic violence in the context of marriage.

To address this problem successfully, it is essential to augment legislative frameworks, fortify support systems, and elevate awareness. By cultivating a culture that emphasises justice and equality, we may establish a framework whereby marriage is founded on mutual respect, devoid of violence and force.

References

Legislations

• Protection of Women from Domestic Violence Act, 2005

• Hindu Succession Act, 1956

• The Bharatiya Nyaya Sanhita, 2023

• The Bharatiya Nagarik Suraksha Sanhita, 2023

• The Bharatiya Sakshya Adhiniyam, 2023

• Hindu Marriage Act, 1955

• Dissolution of Muslim Marriages Act, 1939

• Indian Divorce Act, 1869

• Parsi Marriage and Divorce Act, 1936

• Special Marriage Act, 1954

• Family Courts Act, 1984

Books

• Aqil Ahmad, Mohammedan Law (Central Law Agency, Allahabad 2023).

• Tahir Mahmood, Muslim Law in India and Abroad (Lexis Nexis, New Delhi, 2nd edn. 2016).

• Livia Holden, Hindu Divorce: A Legal Anthropology Hindu Divorce: A Legal Anthropology (Taylor and Francis, 2016).

• Inge Sebyan Black, “Domestic violence, take a stand against violence” Handbook of Loss Prevention and Crime Prevention 405–11 (Butterworth-Heinemann, 2020).

• Desmond Ellis, Noreen Stuckless and Carrie Smith, “Lethal Domestic Violence: Definitions and Motives,” in D. E. S. Smith (ed.), Marital Separation and Lethal Domestic Violence 13–27 (2015).

Journals

• Anukriti Rastogi and Diya Shekhawat, “A Critical Study on Uniform Civil Code: To Unify the Marriage and Divorce Laws in India,” 4 Issue 2 Indian Journal of Law and Legal Research (2022).

• Sanskriti Sanghi, “Divorce and Democracy: A History of Personal Law in Post-Independence India, S. Saxena,” 37 International Journal of Law, Policy and the Family (2023).

• Shukla Dutta and Supriyo Kundu, “The Recent and Changing Trends of Divorce Post Covid-19 Lockdown in India concerning the Hindu Law,” 3 Jus Corpus Law Journal (2022).

• Sagnik Dutta, “Divorce, kinship, and errant wives: Islamic feminism in India, and the everyday life of divorce and maintenance,” 21 https://doi.org/10.1177/1468796821999904 454–76 (2021).

• Ravleen Anand and Vandana Aggarwal, “Marriage system and divorce: Changing pattern in India,” 8 International Journal of Research in Social Sciences 914–26 (2018).