Divorce Rate in India is increasing day-by-day. Among several reasons behind this,
empowerment of women is one of them. This research paper analyses the intricate relationship
between women empowerment and its consequential shift in divorce rates and traditional
societal norms in India. The paper analyses whether this shift is positive or negative impact of
women empowerment. We will discuss the sec 9 of Hindu Marriage Act, restitution of Conjugal
Rights. Whether this right is positive or negative impact on the person upon which it Is being
imposed.
Further, it delves into the implications of a shift from the historical norms in the society of
India, due to change in the concept of family and responsibilities which were earlier defined to
each member today become generalize creating problem or having a development. What are
the societal changes emerging due to this diversion how this is impacting the concept of family
in India.
KEYWORDS:
Women empowerment, Societal Norms, Divorce Rate, Restitution of Conjugal Rights,
consequential Shift.
INTRODUCTION:
Divorce rate in India is increasing day-by-day with a high pace. Till now India is famous for
its Strong Societal values which is based on family and cultural norms. There are other reasons
too for raising divorce trend in India along with that directly or indirectly women empowerment
is one of those potential reasons for such separations. In this paper we are going to focus on
how a positive thought of women empowerment affecting negatively in the Indian society by
shifting its traditional societal norms. Today, even though the Indian society is still patriarchy,
women are not behind men in any field either it be education or other fields where earlier
women were not entered. Women are capable of doing almost everything for which they were
depended on men before this. Educated women are aware of their rights, responsibility,
strength. Due to which now they seek for moral and emotional support which is compatible to
her in a marriage. As earlier the responsibilities were decided between husband and wife i.e.,
husband will do all the external and financial decisions and other decisions like household,
family, children, parents, etc. will be wife’s responsibility. Today this is not the same. Women
are also helping in the financial decision and go to office for work. Here comes the complexity
in a family, which is now who will do the other cores of the family. Now women get two options
either leave her external responsibility and hold on her family or leave her family to hold her
independence. Even if an educated women use her wit in any important family decisions which
conflicts with the decision of other, she will be treated neglected. There are even more different
aspects of this which ultimately cause the breakdown of a family. An empowered women who
is comparatively almost equal and capable as much as men are, seek for same equal treatment,
respect, and value whether it whether it be her workplace or home. Women are expected to
compromise as she faces a generational gap with her in-laws neither they nor she is ready to
understand and come to one point for the family. The law enforced through the restitution of
conjugal rights impose cohabiting rights on the party who withdrawn from the society of other
party without any reason.
RESEARCH METHODOLOGY:
In order to analyze impact of women Empowerment on the divorce rate and shift in traditional
societal norms in India for this paper descriptive purpose, secondary sources like journals,
newspaper, other research papers and websites were used.
REVIEW OF LITERATURE
Hindu marriage is considered as a sacrament tie up not only between two people but also two
families. It was believed that once the knot tied up it will last long to seven births it cannot be
severed. However, after the death on any one of spouse the concept of widow remarriage is
there in Kautilya’s Arthashastra. Wife was considered as Ardhangini i.e, half-part of her
husband without which he was incomplete and for the survival they cannot be separated.1
Moreover, Under Hindu marriage act, 1955 marriage has been further recognized as a
sacramental nature but there a provision for divorce added which state the procedure to open
the knot and set two parties in the marriage and their family free from such marriage.
1 NyayDristi, Hindu Personal Law and Its Constitutional Validity, BLOG, (last visit Jan 14,2024),
https://nyaydristi.in/hindu-personal-law-and-their-constitutional-validity/.
As per the Hindu marriage act 1955, under section 13 there are several grounds on which a
person can seek for divorce viz., under section 13(1) some general grounds have been provided
to file a divorce petition. Also, under section 13(2), A wife has been provided further more
grounds to seek for divorce. Moreover, there is provisions of restitution of conjugal rights under
section 9, which is a step to give one chance to save the marriage from breaking down by
bringing them together. Apart from this there is provision of judicial separation under section
10 is also there. 2
Apart from The Hindu Marriage Act, 1955 there are other laws which govern divorce in India;
The Special Marriage Act, 1954
The Divorce Act, 1869
The Muslim Personal Laws.
The Special Marriage Act deals with divorce cases other than which fall under Hindu Marriage,
Muslim Laws. The Divorce Act, deals with Cristian Marriage and Parsi divorce. Muslim
Personal laws provide divorce procedure of Muslim spouse in it. There is provision of mutual
Divorce in the statute, so that a couple can mutually decide whether they wanted to live together
or not.
Although, divorce was not in practice in India before the colonial era. Neither it was common
even after introduction of divorce under Hindu Marriage act,1955 as it is not easy to root out
the tradition and sever societal norms but nowadays it is raising at high fashion which tends to
cause a drastically shift in society.
RESITUTION OF CONJUGAL RIGHTS
Restitution of conjugal rights under sec 9 of Hindu Marriage Act, 1955 is given to the person
whose spouse withdrawn from his society without any reason. This allows to resume cohabiting
with his/her partner whom he/she left without any reason. Court does this with the intention of
restart the relationship which is at the edge of breakdown by giving them chance to live
together. It is considered one of marital duty imposed on each of the spouse. Also, traditionally
it was the basic foundation of a marriage. The constitutional validity of restitution of conjugal
rights are always put into question that whether it infringes personal right under article 21 of
the constitution vested in individual or not.
2 Hindu Marriage Act, 1955, No. 25, Act of Parliament,1955 (India).
It was not always in the Indian Society, it come into force only after the framing of Hindu
Marriage Act, 1955. With the objective to preserve the matrimonial relation between husband
and wife. There are several cases decided by the court regarding infringement of personal rights
by imposing restitution of conjugal rights specially women . the question of Marital Rape is
also in question before the apex court to decide.
The court held the right of restitution of conjugal right unconstitutional in case of T. Sareetha
v. T Venkatasubbaiah,3 which was further overruled by the Honourable Supreme Court in Saroj
Rani v. Sudarshan Kumar Chada4
, stating restitution of Conjugal rights serves for social
purpose and aid to breakdown of a marriage. Also, abolition of any statue or law is on
legislature and not the court. Not only in Hindus but Restitution of Conjugal rights are also
there in Christian Laws and Muslim personal laws. On fulfilling the prerequisites, the court can
grant the spouse the restitution of conjugal rights whose partner withdrawn from his/her
society without any reason.
CHANGES IN THE SOCIETY
The structure of society is continuously changing due to several reasons mainly because of
diversion in the concept of family which is the foundation pillar of a society. And this starts
with forming a family by marrying someone, marriage is not only a union of two person but
two family, culture, ideology. The commencement of marriage has changed its pattern from
arrange marriage agreed by the parents to love marriage by the couple itself. Moreover,
technology emerged a new way to choose spouse online which broaden the scope and option
to choose spouse even in remote areas. This way the society has adopted a new pattern to form
a new modern society apart from the traditional processes.
Marriage initiates a new pattern of living day to day life for the spouse and this needs a lot of
understandings and efforts to collaborate with each other. And here the problems arise with
miscommunication and misunderstandings which led the spouse to divorce. Here is how
education of women catalyse divorce, men file divorce due to ego issue when her wife is more
successful than him and women file divorce case when she found her partner is not par with
3 T. Sareetha vs T. Venkata Subbaiah, AIR 1983 AP 356, https://indiankanoon.org/doc/1987982/
4
Smt. Saroj Rani v. Sudarshan Kumar Chadha, 1984 AIR 1562, 1985 SCR (1) 303,
https://indiankanoon.org/doc/1382895/
hers. Working women come into contact of several males which increase the chances of
cheating of her husband.
Many youngsters are not in favour of marriage at all due to these complexities which occur
after marriage. This hampersthe very formation Family and building a formless society. Family
is basic building block of the society; divorce affect this foundation of society badly. Divorce
affects the children of the divorced parents more than other family members , they face
childhood trauma, anxiety and other insecurities which hamper their future. This is promoting
individualism; this also hampers the efficiency of young population which is no days dealing
with the relationalship and family problems rather than society and development. 5
POSITIVE ASPECT OF DIVORCE ON SOCIETY
Lower divorce rate in the society is not always a sign of a happy marriages in the society.
Divorce not always arise problems sometimes it is the solution of already broken marriage.
Even today many couples in India not opt for the divorce due to the repercussions which arises
after divorce and choose to life their life with the same mental agony, stress relationship tension
by retain in a bad marriage. They do so for the sake of society sometimes for her children. The
Supreme Court of India also made clear that can act under article 142(1) in case of divorce by
mutual divorce for “complete Justice”. 6
It is better to live peacefully alone than in a quarrel marriage together. This improves the extra
baggage of a person making them more confident and improving their work efficiency. This
impact the society positively. Many women face domestic violence after marriage and still she
tries to hold her marriage. There are a lot of cases of dowry death in the court, an empowered
women not let herself exploit in domestic violence. She knows her rights and command her
life. So, it is for the welfare of the women and society to get out of the bad marriages even if
the divorce is not very appreciable step to take.
Increasing divorce rate in India are Indicator of raising social awareness among women about
their rights and remedies available. Further this shows the easy access to divorce legally and
5 Pinto Vincent, & D’ Mello, Laveena. Changing Trends of Divorce in India: Issues& Concerns., vol.no. 3, IJMTS,
152, 153, 2018,
https://www.researchgate.net/deref/https%3A%2F%2Fdoi.org%2F10.5281%2Fzenodo.2203824?_tp=eyJjb250Z
Xh0Ijp7ImZpcnN0UGFnZSI6InB1YmxpY2F0aW9uIiwicGFnZSI6InB1YmxpY2F0aW9uIn19
6 The Hindu app, https://www.thehindu.com/opinion/editorial/a-good-divorce-the-hindu-editorial-on-the-
supreme-court-of-indias-ruling/article66803976.ece (last visit 14 jan 2024)
women independency to take this step even without any strong support. In a Patriarchal society
like India, the burden to save the marriage by sacrificing herself for the family and children is
on the women, no matter how educated, empowered, and more capable than men she is. 7
NEGATIVE IMPACT OF DIVORCE ON SOCIETY
In India marriage is not only a collaboration of two persons but two family and its breakdown
impact all of them as well as to their children if they have any. Even after a lot of development
society do not look good for a divorcee woman. Which take a lot of courage to tackle all the
opposite bad situation for women. Divorce arises financial burden on the men to provide
alimony and maintenance to his wife and children which cause him mental stress and
unhappiness.
Children are the most affected in a broken marriage. They face psychological problems which
arises other behavioural issues in future. After divorce they lack presence of any one of the
parents. Even after second marriage they somehow face distant from a new parent. Children
seek for a strong support system which they lack after divorce of their parents. Any one of the
parents who did not get the custody they are not allowed to be connected with his/her children
this emerge a lot of mental and emotional stress, which affect the efficiency of the person’s
work also.
Women often face social acceptance problems; they are question on their character, they lack
support to revive herself from the agony of a broken relationship and prove herself at every
step in her life. A women face difficulty to remarriage as society look upon them as a bad
women who can not take the responsibility of a family.
CASE LAWS RELEVENT TO DIVORCE
Sureshta Devi v. Om Prakash [1992 AIR 1904, 1991 SCR (1) 274] 8
in this case , the honourable Supreme Court observed that, if a couple files a divorce petition
by mutual consent, they do not need to prove why they are not able to live together in a
marriage. That they have already completed the period of judicial separation of one year and
7 Akshita Prasad, Divorce Rates are Increasing: Here’s why that’s a good thing, Livewire, (date of access 15 jan
2024), https://livewire.thewire.in/livewire/divorce-rates-are-increasing-heres-why-thats-a-good-thing/
8
Sureshta Devi v. Om Prakash [1992 AIR 1904, 1991 SCR (1) 274] , https://indiankanoon.org/doc/965482/
mutually decided they will not be able to live together and agreed for the dissolution of
marriage. Living separately has nothing to do with the place, couple can live under two
different roofs but fulfilling all the obligations of a marriage on the other hand a couple who
live under the same roof is not fulfilling such obligations are separated even though they live
together. The expression “not able to live together” indicates the broken marriage, and there is
no chance of reconciliation. However, the concern is the consent of the party whether the
consent of any of the party is not taken under any kind of force, coercion, undue influence etc.
if any of the party refuse to divorce at any stage of the proceeding, the court will not grant such
decree for the divorce on mutual consent.
Abdurahman v. Khairunnessa [Appeal No. 82 of 2004-E] 9
Facts of the case
In this case, the wife filed for divorce on the ground of cruelty because the husband did not
treat her equitably in accordance with the injunctions of the Quran without any substantial
evidence for the same. The question before the court was, how is the expression “does not treat
her equitably in accordance with injunctions of the Quran” in Sec. 2(viii)(f) of the Dissolution
of Muslim Marriages Act, 1939 to be understood in law?
It was contented that when Jameela request Prophet Mohammed to divorce her husband just
because she does not like his appearance, Prophet grants the permission to her to divorce her
husband and then this rule established under Mohammedan law.
Judgment
The court decided the case in favour of the wife by citing Ayat 28 of Sura XXXIII. This can be
concluded by saying that Islamic law does not force a spouse to live with someone without
their full consent. And “It is for her to decide whether she is satisfied that her husband is treating
her equitably following the injunctions of the Quran’.
Molly Joseph v. George Sebastian [AIR 1997 SC 109, 1996 (6) SCC 337] 10
Facts of the case
9 Abdurahman v. Khairunnessa [Appeal No. 82 of 2004-E], https://indiankanoon.org/doc/402156/
10 Molly Joseph v. George Sebastian [AIR 1997 SC 109, 1996 (6) SCC 337] ,
https://indiankanoon.org/doc/402156/
In this case, the petition was filed by Molly seeking her rights which she should has after getting
married with her second husband George Sebastian. She took divorce from his first husband in
church in accordance with cannon law(personal Christian law). She later married the
respondent, George Sebastian. when problems arose in her marriage with the respondent and
she was denied her rights. The respondent claimed as she has not divorced her husband in
accordance with the divorce act, 1869 her second marriage was invalid and she cannot claim
any rights from the respondent.
Judgment
The court upheld respondents’ plea citing that canon law is not maintainable after the
commencement of Divorce Act,1869 also, ecclesiastical tribunals (church courts) is not
authority to grant the divorce Unless and until it is recognised by the divorce act, 1869. Nullity
of marriage shall be jurisdiction of district court which is subject to confirmation of High Court
under section 20 of the Divorce Act,1869.
CONCLUSION AND SUGGESTIONS
Men are thought to be dominating in Indian patriarchy system in every religion. But this view
is also changing with the improvement of women life style by empowering them through
education and their other involvement in framing society not just by their personal household
works but the official too. This create a society where women can be dominating rather than a
man in Indian family and they are not so dependent on men now. Although, the concept of
divorce is introduced in the statues for the evolution of the society but it also come as source
of tension and its acceptance and understanding in society is not a one-day process. Parties are
suggested to go for mediation either official or unofficial before they knock the court’s door.
This saves a lot of mental stress which arises with the commencement of court proceedings. It
is challenging to address the upcoming rise in divorce rate in India and adopt the best which
can come out of it. Legally court can approach a fair and just proceeding taking the children’s
concern in consideration. Promoting a culture of open communication and marriage
counselling if needed easy and normal the breakdown of marriage can be dealt more efficiently.
A balance between the rise of women with cultural and ethical norms in the society is the need
of the hour.
SHIVANI
JYOTIRMOY SCHOOL OF LAW, CALCUTTA UNIVERSITY BATCH 2021-2026