Divorce and Related Provision’s in the Hindu law 

Divorce & Related Provision’s in the Hindu law 

Introduction

India is a country which has a diverse society which consists of different religions such as the Hindu, Muslim, Buddhist, Parsi, and Jews. Every religion has its own culture and the rituals which govern by their own personal laws. Hindu religion has its own laws such as Hindu Marriage Act, 1955, Hindu Succession Act, 1956, Hindu adoption and maintenance act, 1956.

Muslim Religion has its own laws such as Shariat Act, Protection of Muslim women against the divorce, 1989. Christians have their own and the same goes to the Parsi and Jews. These laws govern the personal matters of their own religion which includes the marriage gift maintenance, adoption guardianship. Divorce is one of them. Divorce in the Hindu religion is governed by the Hindu Marriage act, 1955.

Before starting with the Divorce first we have to understand the origin of the Hindu marriage act and the history of this act.

The traces of this act can be seen back in the ancient time although there was no codified law which governed all these personal matters, still they have the “Shastra” and the “Smirites” to govern these things. Examples of these are “Yajnavalkya smriti” and “Manusmriti”. These were famous which gave the rules related to the Hindu laws at that time.

Now Let’s understand, Who is a Hindu?

The Hindu Marriage Act  under clause of (c ) of the section 2, defines the definition of the Hindu which talks about the applicability of the act.

The word Hindu includes to any person who is a Buddhist, Jaina or Sikh by religion further it also give the negative definition as “to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Hindu Marriage act, 1955, section 2(c) had not been passed.”

Additionally, Hindu marriage act, 1955, explains what type of persons come under this definition-

“The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.”

What are the essential conditions for marriage in Hindu?

The conditions of a valid Hindu marriage under the Hindu Marriage Act, 1955 are

Nobody should be married at the time of marriage (monogamy), both parties must have a sound mind and not suffering or declared to be insane, the bridegroom must be of above 21 years and the bride must be of above 18 years, the parties must not fall within the prohibited degrees of relationship or sapinda relationship unless permitted through custom and both shall give free consent without any coercion, fraud or undue influence. In addition, it should also be solemnised based on some prescribed customary rites and ceremonies, as in Saptapadi as also defined under the  Hindu marriage act, 1955, Section 5 & 6.

Registration of the marriage

The registration of marriages under the Hindu Marriage Act, 1955, is governed by Section 8, which allows state governments to make rules for the registration of marriages. While registration is not mandatory for the validity of a Hindu marriage, it serves as legal proof of the union and helps avoid disputes related to legitimacy, inheritance, and marital rights. In Seema v. Ashwani Kumar(2006) 2 SCC 578, the Supreme Court directed that registration of marriages should be made mandatory across India to protect women’s rights and reduce disputes. Similarly, in Shiv Kumar v. Prem Kumar AIR 2021 Raj 1, the Rajasthan High Court held that non-registration does not invalidate a marriage if the essential conditions are fulfilled. However, registration provides a formal record that facilitates legal benefits and ensures recognition of the marital status in disputes.

To consider the two person as a wife and husband in the term of Divorce and the Annulment what are essential condition should be there?

Under Hindu law, consummation of marriage refers to the act of completing the marriage through sexual relations between the spouses, but it is not a mandatory requirement for the validity of a marriage. A marriage is considered legally valid if it fulfils the essential conditions under Section 5 of the Hindu Marriage Act, 1955, regardless of consummation. However, non-consummation of marriage can serve as grounds for annulment under Section 12(1)(a) if it is due to impotency, as seen in Smt. X v. Mr. Z (AIR 2008 All 86), where the court annulled the marriage on such grounds. Additionally, persistent refusal to consummate the marriage can amount to mental cruelty or desertion, justifying divorce under Section 13, as held in Suresh Kumar v. UrmilaAIR 1977 Raj 82. While not essential for legal validity, consummation is culturally significant and may influence cases related to annulment or divorce.

Divorce under Hindu Marriage Act, 1955

Under the Hindu Marriage Act, 1955, divorce refers to the legal dissolution of a marriage, allowing both parties to remarry or live independently. Section 13 of the Act specifies the grounds on which a divorce can be sought by either spouse. These include adultery, cruelty, desertion for two years, conversion to another religion, unsoundness of mind, incurable leprosy, venereal disease, renunciation of the world, and presumption of death after seven years of being unheard of. Additionally, special grounds are provided for women, such as the husband marrying another woman, rape, sodomy, or bestiality, or refusal to comply with a decree for maintenance.

The important case law, Naveen Kohli v. Neelu Kohli(2006) 4 SCC 558, where the Supreme Court emphasized granting divorce when the marriage has irretrievably broken down, and Samar Ghosh v. Jaya Ghosh(2007) 4 SCC 511, which laid down the standards for determining mental cruelty as a ground for divorce. Divorce can also be sought through mutual consent under Section 13B, provided the couple has been living separately for one year and agrees that the marriage has irretrievably broken down. While divorce ends legal obligations, it ensures that parties can rebuild their lives with legal protection and dignity.

Three Theories for Divorce

There are commonly three theories for the divorce in Hindu law-

       

Guilt Theory

In the guilt theory, it implies that there is a party who is at guilt which commonly refers to the matrimonial offence by the respondents which can include adultery, cruelty, desertion etc.

For instance if the one spouse is guilty of the adultery and the other one claim for the divorce then the court allowed the divorce , on the other hand if both the spouses are involved in the adultery then the divorce can be claim by anyone of the parties this doctrine is called the Doctrine of recrimination. On this Doctrine as stated in a commentary of Paras Diwan, Modern Hindu Law (23rd ed., Allahabad Law Agency 2016) that one of the Chief Justice of England well said that, 

“Perhaps it is not vouchsafed to everyone, whether in Holy Orders or out to them, to appreciate the full beauty of the doctrine that if one of the two married person is guilty of the misconduct, there may be a divorce, while if both are guilty, they must continue to abide in the holy state of matrimony”. Later this theory abandoned this position”.

In the Hindu Marriage act, 1955 these are also the ground for the claim of Divorce.

What is adultery?

Adultery means a married person having a voluntary sexual relationship with someone who is not their spouse.

The Hindu Marriage Act, 1955, grants adultery as an absolute ground for divorce. It is defined in section 13 (1) (i) of the Act as voluntary sexual intercourse by either party with someone other than their spouse during the subsistence of marriage. Adultery was also a criminal offence under Section 497 of the Indian Penal Code and had remained so till Joseph Shine v. Union of India (2019) 3 SCC 39 for which the Supreme Court decriminalised adultery by declaring it unconstitutional. The Court held that it treats women as property and violates their fundamental rights to equality and personal autonomy. Thus, adultery remains an accepted ground for divorce under personal laws but no longer attracts criminal punishment.

What is cruelty?

In a marriage, cruelty is defined as any action by one partner that makes it difficult for the other to live with them by causing them physical or psychological suffering. It can involve acts that have a significant negative impact on the other person’s mental and emotional health, physical abuse, cruel remarks, ongoing humiliation, or neglect.

As per the case of Russel v. Russel AIR 1995 Del 315,“Cruelty which is a ground of the dissolution of the marriage can be as wilful and unjustifiable conduct of such as character, as to cause danger of life, limb or health, bodily and mental as a give rise to a reasonable apprehension of such a danger”

Cruelty, according to the Hindu Marriage Act, 1955, is one of the grounds for divorce under Section 13(1)(ia). It involves such conduct by either party to marriage that grossly and repeatedly injures the mental feeling of the other spouse such that it becomes impossible to live with each other. Cruelty can be expressed as violence, verbal abuse, humiliation, neglect, false accusations, or any behavior which seriously affects the mental or emotional soundness of the spouse. It is not restricted to corporal but includes psychological and emotional torture also.

The Supreme Court in V. Bhagat v. D. Bhagat(1994) 1 SCC 337, elaborated that cruelty should be of such a nature that there may well be formed a reasonable apprehension in the minds of the victims that it is not possible for them to live together. Whether an act falls under cruelty depends on the circumstances and the after-effect on the injured spouse.

In India to deter this problem and give the protection of the women against the violence the DV Act came into force in 2005. Domestic violence is a recognized ground for divorce under the Hindu Marriage Act, 1955, specifically under Section 13(1) (ia), which allows a spouse to seek divorce if the other party has treated them with cruelty. Domestic violence, which includes physical, emotional, sexual, or economic abuse, is considered a form of cruelty that can make cohabitation unbearable and is a valid reason for seeking divorce. The Protection of Women from Domestic Violence Act, 2005 (PWDVA) further strengthens this by providing a legal framework for women to seek protection from various forms of abuse within a marriage. In Samar Ghosh v. Jaya Ghosh(2007) 4 SCC 511, the Supreme Court recognized that domestic violence, including mental and physical cruelty, could be a legitimate ground for divorce, considering it a violation of basic human dignity and marital harmony. Courts assess the severity of the abuse and its impact on the victim’s well-being before granting divorce, ensuring that the victim is protected from further harm. Domestic violence as a ground for divorce highlights the legal protection available to individuals in abusive marriages, allowing them to escape unsafe and unhealthy relationships.

Domestic Violence

Under section 3 of the act it clearly defines the violence not only the physical or verbal but also the financial and economical abuse.

“Definition of domestic violence.—For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it— 

1. a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or 
2. b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
3. c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
4. d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”

In terms of economic abuse, it refers to control or harm of another person by either restraining them in their access to financial resources, keeping someone from being financially independent, or using finances as a means of control. The Indian law pronounces economic abuse as cruelty u/s 13(1)(ia) of Hindu Marriage Act, 1955 and also takes into account under Section 3 of the Protection of Women from Domestic Violence Act, 2005 (PWDVA) who squarely includes economic abuse in the purview of domestic violence.

Supreme Court In the case called Ajay Kumar v. Lata alias Sharuti(2019) 15 SCC 352, held economic abuse is also domestic violence and that depriving a woman of her financial resources and her means to sustain herself is cruelty as well as domestic violence.

When we talk about the limitation period of filling the case on this ground even for the divorce or the compensation it is different in the both acts. Under the Hindu Marriage Act, there is no specific time frame for filing a divorce petition on grounds of cruelty, which includes economic abuse, but the petition has to show that there have been recent or continuing acts of cruelty.

Under the Protection Of Women Against The Domestic Violence Act,2005, a complaint can be filed during the subsistence of the abusive relationship or after separation if the abuse has occurred within the preceding year, according to procedural norms. However, courts may consider delays in filing based on the circumstances of the case.

What is desertion?

Desertion, as defined by Section 13(1)(ib) of the Hindu Marriage Act, 1955, is considered a valid reason for divorce. Desertion is an act of deliberate and permanent abandonment of one spouse by the other without a reasonable ground, consent, or any intention to return (Smt. Savithri v. S. Ravindra Reddy AIR 2017 NOC 995 Karnataka). Desertion is proven if it continues for at least two years immediately prior to the divorce petition. Desertion includes both physical separation and animus deserendi (intention to desert) Laksham v. Meena AIR 1964 SC 30.

 In Bipinchandra Jaisinghbhai Shah v. Prabhavati AIR 1957 SC 176, the Apex Court has explained that desertion involves not only physical separation but also the intention to bring the marital relationship to an end. The Court has emphasized that the deserted spouse must prove both the fact of separation and the intent to desert.

Desertion is not applicable where one spouse leaves because of cruelty, ill-treatment, or for any other legitimate reason because such acts give just cause for separation.

Restitution of Conjugal Rights 

When we are talking about the desertion, it is also important to consider the restitution of conjugal rights therefore what is the restitution of conjugal rights?

Restitution of Conjugal Rights is a judicial relief under Section 9 of the Hindu Marriage Act, 1955 whereby one spouse can file a petition for restoration of conjugal rights before the court requesting it to direct the other spouse to resume his or her marital obligations and to live together after they have separated without any justified cause. This provision seeks to revive the marital relationship where one spouse has ceased to live with the other without any just cause. It may pass an order for restitution if the court feels that the separation is without reasonable cause. However, if the wife refuses to abide by such an order, then later on, the husband can seek a divorce on the ground of cruelty, as specified in Section 13(1)(ia) of the Act. Although restitution of conjugal rights has been a long-standing provision, it has also been criticized. Critics have mainly targeted provisions in conjugal rights through the prism of women’s rights. This is well illustrated in the case T. Sareetha v. T. Venkata Subbaiah (1983)4 SCC 339.

Here, the Andhra Pradesh High Court declared that if misused, such a provision may offend fundamental rights.

Consent Theory

In the Consent theory, the idea behind this theory is that individuals are free to take the decision to get married similarly if they want to take divorce and do not want to continue their marriage they can decide the same by the free consent or mutually.

Mutual divorce under the Hindu Marriage Act, 1955 allows for the dissolution of a marriage by mutual consent, as provided in Section 13B. To file for mutual divorce, both spouses must have been living separately for at least one year, agree that the marriage has irretrievably broken down, and jointly file a petition before the family court. Both parties must consent voluntarily, without coercion or undue influence, and must settle issues such as alimony, property division, and child custody. The process involves a cooling-off period of 6 months, during which the couple may reconsider their decision. After this period, if both parties reaffirm their consent, the court grants the divorce. The Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511  case highlighted that mutual consent is a peaceful way to end a marriage when both parties agree. The advantages of mutual divorce include a quicker, less stressful, and more cooperative process, making it a preferred option for couples who want to end their marriage amicably.

Recently in the case, Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746., it was held by the Supreme Court that in a mutual consent divorce, if the couple had been separated for more than a year and had no chances of reconciliation, even a mutual consent divorce could be granted before the statutory waiting period of six months. Therefore, this case paved the way for more lenient interpretations regarding the cooling-off period in mutual divorce proceedings.

Irretrievable Breakdown theory

In the Irretrievable Breakdown theory, If a marriage has broken down to such an extent that it is beyond repair, and no reconciliation is possible, then the court apply this theory as in the case the Supreme Court acknowledged the concept of irretrievable breakdown of marriage, suggesting that a marriage where the relationship has permanently and completely broken down can be dissolved by divorce, even if no fault or grounds for divorce (like cruelty or desertion) are proven. However, the Court stressed that this principle should only be applied in rare cases, where all efforts of reconciliation have failed, Samir Kumar v. Union of India, (2017) 9 SCC 1.

Although this principle is not the ground explicitly defined under the Hindu Marriage act, 1955 but it is the discretion of the court that in some cases, the Court can invoke it to grant divorce if the circumstances of the case demand. In 2019, the Law Commission of India also recommended introducing irretrievable breakdown of marriage as a statutory ground for divorce, but it has not yet been incorporated into the law.

Other grounds of Divorce

Mental insanity as the ground of Divorce

Under the Hindu Marriage Act, 1955, mental insanity is a recognized ground for divorce under Section 13(1)(iii). A spouse can seek divorce if the other party is suffering from a mental disorder to such an extent that they are unfit for marriage or procreation, or if the person experiences recurrent attacks of insanity. The mental illness must be severe and persistent, making cohabitation unreasonable, and the burden of proof lies on the petitioner to establish the nature and impact of the disorder. In Ram Narain Gupta v. Rameshwari Gupta AIR 1988 SC 2260, the Supreme Court held that the disorder must be of such a nature that it makes normal marital obligations impossible. In Alka Sharma v. Abhinesh Chandra Sharma AIR 1991 MP 205, divorce was granted based on chronic schizophrenia, proving the disorder affected marital life. Courts require substantial medical evidence to prove the severity and impact of the mental illness, ensuring this ground is not misused.

Conversion of Religion as the ground of divorce

In India, conversion of religion is a valid ground for divorce under personal laws, such as the Hindu Marriage Act, 1955, Section.13(1)(ii). This is because conversion can lead to fundamental changes in beliefs, values, and lifestyles, potentially disrupting marital harmony. However, courts must prove the conversion was genuine and not motivated by ulterior purposes. In the case Sarla Mudgal v. Union of India (1995)AIR 1995 SC 1531, the Supreme Court observed that fraudulent conversion to Islam, solely to marry another woman, does not protect the husband from legal consequences under the original religion’s laws. This ground protects individuals’ autonomy in matters of faith while balancing personal freedom and marital rights.

Renunciation of the world

Under the Hindu Marriage Act, 1955, renunciation of the world by one spouse might not be explicitly stated as a ground for divorce, but it can lead to a breakdown in marital relations, which can be considered grounds for divorce under certain provisions of the Act. If one spouse gives up worldly life, this can cause emotional abandonment, mental cruelty, or abandonment, which could be considered forms of cruelty under Section 13(1)(ia) or desertion under Section 13(1)(b). Even if the renouncing spouse’s decision causes a divorce towards complete emotional or physical separation, it can be argued that the marriage has irrevocably broken down, an eventuality courts sometimes permit within broader legal provisions. Additionally, if renunciation involves a vow of celibacy, the affected spouse could potentially seek divorce on grounds of impotence (Section 13(1)(v)). Thus, even though renunciation itself may not be listed as a ground for divorce, its consequences would result in divorce under the provisions for cruelty, desertion, or other applicable grounds under the Hindu Marriage Act.

In the case Govind v. Kuldeep AIR 1971 Del. 157, the court said that if the person renounces from the world and become the sanyasi it is important to follow all the necessary ceremonies for the same. If he does not enter in any religion then on the ground of desertion the decree of separation can be passed by the judiciary. No one can claim to be the sanyasi merely to become the disciple of the Sanyasi.

The Supreme Court further in case of Shitaldas v. Sita Ram, AIR 1954 S.C. 606 said, that the renunciation from the world affairs followed by entrance into a religious order generally operates as civil death.

Presumption of death

Under the Hindu Marriage Act, 1955, presumption of death can act as a reason for divorce on the grounds of Section 13(1)(v). In case a spouse is absent for seven years or more and there is no sign of the person still being alive, the other spouse can apply for divorce. In such cases, the law presumes that the missing spouse is dead, and this presumption enables the surviving spouse to seek a divorce and remarry legally. This provision helps solve cases where the remaining spouse does not know their whereabouts and the marriage is thus assumed to have ended. Now, presumption of death stipulates that the surviving spouse prove the absence of the other spouse for the specified period; after such time, the court can grant a decree of divorce. So, in any case where there is prolonged absence of one spouse, presumption of death offers legal resolution for the living spouse to move on in life.

Difference between the Divorce and the judicial Separation

Aspect	Divorce	Judicial Separation
Definition	A legal dissolution of marriage, ending the marital relationship.	A legal process where the court separates the spouses, but the marriage remains intact.
Impact on Marriage	Ends the marriage completely, and both parties are free to remarry.	Does not end the marriage, and both spouses are still legally married.
Grounds for Filing	Based on grounds like cruelty, adultery, desertion, etc.	Based on similar grounds, but often used when reconciliation is still a possibility.
Right to Remarry	Both spouses can remarry after the divorce is granted.	Spouses cannot remarry, as the marriage is not legally dissolved.
Time Duration	Generally takes longer, as it involves finalizing the divorce and any settlements.	Can be quicker, as it’s a temporary separation that does not end the marriage.
Legal Effect	Final and permanent, terminating all marital obligations.	Temporary, allowing spouses to live apart without legally ending the marriage.
Remedies Available	Spouses can seek alimony or maintenance post-divorce.	Spouses may seek maintenance or other relief during separation.
Reconciliation	After divorce, reconciliation is no longer possible.	Aims at providing a period of separation to see if reconciliation is possible.
Example of Grounds	Adultery, cruelty, desertion, irretrievable breakdown of marriage.	Cruelty, desertion, mutual consent, etc.
Effect on Children	Children’s custody, support, and maintenance will be decided as part of the divorce process.	Custody and maintenance of children can be decided during judicial separation, but the marriage remains intact.

The decree of the judicial separation puts the end of the cohabitation between the husband and wife and if they start living again it automatically restores the marital status between the two as per the Hindu Marriage Act, 1955, s,10. The real purpose of this decree is “to non-relieved of their matrimonial duties toward each other, to reconsider their position, taste single living again and attempt in a less economical and urgent atmosphere to place their lives and their future together once again” as mentioned in Derret, A critique of Modern Hindu Law (1970) page number 427.

We can also say that a decree of Judicial Separation may be said to be a stepping stone to divorce.

Recent Judicial trends on the divorce 

Recent judicial trend on divorce in India reflects changing thoughts and legal changes. The Supreme Court has increasingly accepted irreconcilable differences as an acceptable divorce ground, distancing itself from the conventional fault-based grounds such as cruelty or adultery. Recently, in the case of, Shilpa Sailesh v Varun Sreenivasan case on May, 2023, the Court recognized that long periods of separation, such as even 22 years, could be an indicator of an irretrievable breakdown of marriage and allow dissolution of the marital bond​.

More emphasis has been laid on irretrievable breakdown as the fundamental legal principle for dissolving a marriage, and the courts in India have not hesitated to invoke extraordinary powers under Article 142 of the Constitution to grant divorce where reconciliation appears impossible. The Supreme Court, for instance, recently granted a divorce to a couple who had been separated for 22 years, holding that continued judicial litigation and emotional separation between the spouses had, in fact and in law, put paid to their marriage​.

In terms of procedure, there have been alterations to make divorce procedures less convoluted. Mutual consent divorces require a two-year period between separation, and courts will encourage mediation and counselling before granting finalizing divorce petitions. It feels that the courts are child-centric and fair in judgments about maintenance and alimony.

Although it is not the strict application as seen in the case in the Supreme court held that in a mutual consent divorce, if the couple had been separated for more than a year and had no chances of reconciliation, even a mutual consent divorce could be granted before the statutory waiting period of six months. Therefore, the case ofAmardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 paved the way for more lenient interpretations regarding the cooling-off period in mutual divorce proceedings. This decision was made by invoking the court’s powers under Article 142 of the Constitution, allowing for the dissolution of marriages more expeditiously​

Such trends point to a more liberal and progressive framework for divorce law in India-an emphasis on individual dignity, along with the pragmatic realities of dissolution of marriages.

Challenges face by the husband in the case of Divorce

There are many challenges that can be faced by the husband such as related to the alimony and the maintenance, custody of the children, social stigmas etc., the biggest challenge is the false allegations. It is commonly seen that if the women file the divorce case the women also file the case of Domestic violence and the dowry as well. Although these cases were false in nature. The data related to this is shown below-

“National Crime Records Bureau (NCRB) Crime report of 2021 shows that under the Protection of Women from Domestic Violence Act, seven cases ended as false out of 855 cases. Under Dowry Prohibition Act, 418 cases were false out of 21287 cases in the final report. According to NCRB 2020, from 56731 cases reported under Dowry Prohibition Act, 22 cases proved to be false. From 2330 cases reported under Protection of Women from Domestic violence, 3 cases are proved to be false”.

What is the reason behind these false cases? Why do women file these cases?

In many divorce cases in India, women sometimes make false allegations of domestic violence and dowry harassment along with a divorce petition. This practice is mainly followed for various reasons; it’s mainly done with the motive to gain an upper edge in the case of divorce. Alleging abuse or harassment can ensure alimony, child custody, or a more favourable settlement. These claims can even be a kind of leverage in negotiations because courts are even more considerate of women who claim to have suffered domestic abuse. 

Pressure from society is also responsible; divorce, even in the present day can be quite shameful, especially in conservative societies; accusations of violence or abuse can serve the purpose to spare a woman blushes by letting the faults of the marriage on the husband. These allegations may be prompted too by the family members who think it helps them salvage the interests of the woman. 

However it is important to be noted here that all cases are not false allegation, most women genuinely suffered from these problems and legal systems must ensure that false claims do not overshadow legitimate cases of domestic violence. The challenge remains in distinguishing between the two while ensuring protection for victims of real harm.

But it is not only the women who misuses the law which are enforceable during the period of time. Men are also put the false allegation to prevent themselves from providing the maintenance and the alimony and getting the custody of the children. As they can counter claim the compensation on the basis of the false allegation under the Section 156(3) Cr.P.C, under s/125of Cr.P.C. and under s/340 of Cr.P.C. and can also file the civil suit for the defamation.

Another important challenge in the cause of divorces and matrimonial cases is when litigants suffer owing to the negligence or incompetence of their legal practitioners. The consequence may well be delayed justice, denial of relief, or other undesirable results. In the case N.G. Dastane v. Shrikant S. ShindAIR 2001 SUPREME COURT 2028, the Supreme Court highlighted professional misconduct when advocates sought repeated adjournments, thereby causing delay and hindering the court’s efficiency. Similarly, In Surendramohan Ray v. Mahendranath Banerji 1978 AIR 537, the court observed that, litigants who were aggrieved by the professional negligence on the part of legal advisers could lodge complaints against such advocates for professional misconduct by way of clause 35 of the Advocates Act, 1961. But proving gross negligence is not easy, as courts take great pains to differentiate between genuine mistakes and acts of deliberate misconduct.

In real life, there are numerous instances of delayed filings or improper legal advice that result in the dismissal of cases. Even when advocates file petitions in the wrong forum or provide incorrect legal advice, courts have sometimes refused to condone delays caused by such errors, thereby leaving litigants without recourse​

Such cases throw light on the necessity of careful selection of competent legal representation for litigants and regulatory bodies like the Bar Council to regulate the professional behaviour of lawyers. It saves the very process of delivering justice from failure owing to professional misconduct. Due to the conduct of the lawyers it not only affects that particular case but also put the question on the efficiency of the court on providing the justice. Therefore it is very important to look out into this matter and take the necessary steps to prevent the same.

Measures can be taken to prevent these challenges.

In relations to the false allegation, there are many laws which provide the remedy of the person who suffer the false allegations such as in the cases against the domestic violence they can directly go under section 156(3) of Cr.P.C (Section 175 (3) of the Bharatiya Nagrik Suraksha Sanhita) to file the complaint and also file the defamation case.

If the maintenance is claim under Section 125 Cr.P.C. (Bharatiya Nagarik Suraksha Sanhita, 2023, s.144) and it is based on the false allegation then this section itself gives the remedy for the same.

Section 125- “(4) No wife shall be entitled to receive an 3 [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. 

(5) On proof that any wife in whose favour an order has been made under this section in living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent.”  

The person can also take the remedy under section 340 of Cr.P.C. (Bharatiya Nagarik Suraksha Sanhita, 2023, Section 195)this section gives the remedy to both the spouses.

Section 340- “Section 340 of the Code of Criminal Procedure (CrPC), 1973 ( BNSS Section 231), provides the framework for dealing with offenses related to false evidence and perjury committed during judicial proceedings. It empowers a court to take action against an individual who appears to have committed an offense such as giving false evidence (under Sections 191–200 of the Indian Penal Code). Before initiating any criminal proceedings, the court conducts a preliminary inquiry to ascertain whether there is sufficient ground for prosecution. If satisfied, the court may file a complaint in writing to a Magistrate of competent jurisdiction to take further action. This provision safeguards the sanctity of judicial processes by penalizing individuals who intentionally provide false statements, thereby ensuring justice is not compromised.”

Way forward

The legal framework for an evidence-based proceeding, accountability at the lawyer level, and judicial efficiency strengthen a fair justice system, especially on sensitive matters such as domestic violence and dowry harassment. The courts need to ensure that for allegations of this nature, concrete evidence must be provided so that the process will not be misused. This entails analysis and incorporating newly instituted tools such as digital evidence and expert testimonies into the claims. Introducing penalties for filing false cases can deter individuals from exploiting the legal system, ensuring genuine victims receive timely justice.

Accountability of lawyers is equally important. Conduct audits of legal practitioners by Bar Councils on a regular basis and quick resolutions of complaints against negligence or misconduct. Public information programs are a good way to make litigants aware of their rights and importance of professional legal services, which will only reduce their vulnerability to being exploited by less experienced or unscrupulous advocates.

Legal reforms aimed at penalizing professional negligence and deliberate delays in case handling would streamline judicial efficiency. The courts can implement time-bound case management systems to avoid the delaying tactics of both parties during proceedings. This oversight would help improve the judicial process and uphold the interests of the litigants as well as the broader justice system.

All such measures, therefore, collectively ensure fairness, protect the credibility of judicial institutions, and safeguard the rights of all parties concerned.