Divorce As A Socio-Legal Process

51The family is a complex and dynamic institution in India. Families in India are undergoing vast changes like increasing divorce and separation rates, domestic violence, inter-generational conflicts, and social problems of the aged parents.

In contemporary research, divorce and re-marriage are viewed not as single, static events, but as part of a series of transitions, modifying the lives of children. In addition to the trauma of divorce itself, the transition related to divorce often involves geographic moves, the addition of step-siblings and a new set of extended family members.

Definition of divorce:

Divorce -partial or total – is the dissolution of a marriage by the judgment of a court. Partial dissolution is a divorce “from bed and board,” a decree of judicial separation, leaving the parties officially married while forbidding cohabitation. Total dissolution of the bonds of a valid marriage is what is now generally meant by divorce. It is to be distinguished from a decree of nullity of marriage, or annulment, which is a judicial finding that there never was a valid marriage.

According to the Hindu Marriage Act, 1955, ‘any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce’1 on the grounds mentioned therein.

Among the Hindus, who form a major religious group in India, marriage is considered as a permanent, life-long and sacred union. For a Hindu in general, a Hindu woman in particular, marriage is a sacrament and hence unbreakable. Divorce was fairly an unknown phenomenon among the Hindus before the passing of the Hindu Marriage Act, 1955 and the Special Marriage Act 1954. The amendment to the Hindu Marriage Act in 1976 is an improvement on the previous legislation relating to marriage and makes divorce easier. There are certain matrimonial offences, which entitle the aggrieved spouse to file for a divorce, available under the matrimonial laws. These are cruelty, adultery, and bigamy. Divorce by mutual consent is available under the Hindu Marriage Act, 1955.

The Hindu Marriage Act, 1955 differentiates the concept of ‘divorce’ from such other concepts as separation2, desertion3 and annulment4. A divorce is that process by which a marriage, recognized as valid, can be revoked in the lifetime of the partners who then revert to single and is free to remarry.

But in reality, divorce is a major life transition that has far-reaching social, psychological, legal, personal, economic, and parental consequences. The nature of divorce as a socio-legal phenomenon is very interesting and enigmatic. The present study is an attempt to learn the persuasive power of the social factors in determining the status of a divorcee.

Literature Survey:

Numerous studies in the sociological literature in the west have examined and analyzed the phenomenon of divorce and its implications. In India, considerable research on divorce has been documented, albeit on lesser scale compared to the west. The main reasons for the limited number of empirical studies on divorce in India, are the lower divorce rates, and lack of adequate data [Amato, 1994]. It has been found that various studies related to marriage, family and divorce have been conducted at various periods of time. These studies, despite offering vital insights into the subject, circumscribed their scope to the demographic and causative factors of divorce; the “pre-divorce” stage, which a crucial determinant is of “divorce process”, has not received adequate attention.

Demographic data on divorce

As per Census 2001, eight per cent of the total married population [Two per cent of the total population] in Andhra Pradesh is divorced. Four per cent of female population in Hyderabad city is divorced. Besides, there is an increase in the number of divorced also. Total number of divorced population in the city of Hyderabad increased to 7433 in 2001 from 2850 in 1991. Nearly half of the total divorced population in the city of Hyderabad and also Andhra Pradesh belong to the age group of 25-39 years.

Research Questions:

The present study is an attempt to scrutinize the influence of social factors on the process of divorce. The present study proposes to consider the following research question:

It is generally assumed that there will be adverse and far reaching social and legal consequences of divorce, especially among the Hindu women, because the Hindus have been traditional in their outlook and marriage is considered as a sacred union among the Hindus. Is this statement relevant for the contemporary, urban, modern and westernized outlook about the status of women?

The Location Of The Study- Twin Cities Of Hyderabad And Secunderabad:

Greater Hyderabad Urban Agglomeration, including the twin cities of Hyderabad and Secunderabad alone accounts for 24 per cent of urban population in the state of Andhra Pradesh. The population of Hyderabad district has gone up from 3145939 in 1991 to 3829753 in 2001. Hyderabad, now nicknamed as “Cyberabad”, the capital city of the state of Andhra Pradesh is moving at a fast pace in the development of information technology and infrastructure.

Information technologies are drastically changing the way one conducts one’s activities. Yet, the social atmosphere in the state appears to be still feudal in outlook and practice. The median age at marriage at Hyderabad District, however, for female population is 15.3 years which is the fifth lowest in India and about 69% of females are married below 18 years.

Universe and Sampling:

The present study focused on divorce cases under the Hindu Marriage Act, 1955 decided and disposed of by the Legal Services Authority [Lok Adalats], and Family Court of Hyderabad as its universe.

A multi-stage sampling method is followed to select the sample. To begin with, the cases referred for divorce to the Family Court of Hyderabad by the City Civil Court Legal Services Authority are selected where the decree of divorce is granted by the Family Court of Hyderabad. A sample of 57 cases was selected by following the purposive sampling method. Once the cases are selected, the residence of the women-divorcees is taken into consideration to select the sample at the second stage. Data is collected from the women- divorcees residing at twin cities of Hyderabad and Secunderabad and the peri-urban zone surrounding the twin cities. A pre-tested interview schedule is used to elicit information from the respondents. Data on age, education, occupation, caste status, monthly income, details of marriage, details of marital disharmony, introduction of legal aspects of divorce and the personal experiences in this regard, post-divorce consequences as decided by the courts, life of the divorcee after divorce, and remarriage are collected by using the schedule. In-depth interviews also were made with selected respondents, family counselors, lawyers and the members of Judiciary dealing with divorce cases.

Socio-Economic Profile Of The Divorcee-Respondents:

The data is collected from 57 women respondents. Information pertaining to the socio-economic and cultural background of the spouses is important in as much as it could be related to their behavior pertaining to marital dissolution. In the analysis of data some of the socio-economic characteristics were taken as important variables in the process of divorce.

Age of the respondents is an important variable in the analysis of divorce. The largest group of the respondents (52.3%) belongs to the 26-35 years age group, followed by 42.3 per cent of the respondents falling in the 16-25 years age group. The data suggest that a majority of the marriages ends at young age.

Education is another important variable associated with divorce. In tune with the general perception that more number of divorces accompanies higher level of education of women, it is reported that women with higher education took recourse to divorce to end marital incompatibility. In Becker’s theory of the union formation process it is argued that highly educated men tend to marry highly educated women and less educated men tend to marry less educated women [Becker 1977]. Though a number of studies link high rates of divorce to higher level of education, the proposition in the-Indian context, is not irrefutable. Pothen [1986] was not certain whether education hinders or promotes the incidence of divorce among Hindus. She agreed that it is hard to predict the restraining or corrective influence of education on divorce. The present study shows that, even though the percentage of those with college education is sizeable [55.8%] the analysis of data implies that higher level of education is not always accompanied by divorce.

There is much relationship between occupation and marital and familial life. Burgess and Locke [1950; 634] observed that ‘various studies seem to show that divorce is relatively high among persons engaged in occupations necessitating frequent absence from home, involving intimate contacts with the opposite se, and controlled relatively little by the community’. The percentage of women respondents working at the time of marriage and after is very low. The most important factors hindering women to seek employment are community customs and traditions. In spite of giving importance to education of the girls, many parents, husbands and other male relatives will not permit their women to work.

Most of the respondents are housewives. Their sources of income include rents accrued from their landed property or interest on the fixed deposits deposited by them at Banks or Chit Funds and Private financial institutions. The number of respondents having monthly income more than Rs. 20,000 is negligible [8 per cent].

The present study is concerning divorce among the Hindus. Among the Hindus, there are innumerable castes and sub-castes with marital restrictions and varied cultural traditions. It is seen that the highest number [42.3%] of divorces is from Brahmin caste. The Brahmin respondents are from the sub-castes of Niyogi Brahmins [23], Vaidiki Brahmins [9], Kannada-Madhwa Brahmin [2], and Srivaishnava Brahmin [4]. Urban residences, higher educational qualifications, detachment from their ethnic groups are some of the facilitating factors of social mobility among them. Nearly sixty per cent of the divorces among them took place for incompatibility, inability to adjust and lack of understanding on the part of the other spouse. Naidu, Kamma, Viswa Brahmin, Mera, Kapu castes, which are described as middle level castes, come next [36.9%]. The lowest per cent [4.5%] of the divorcees are Kshatriyas.

Each caste follows different traditions and values in the Indian cultural milieu. Some castes permit divorce while others do not, irrespective of the fact that it is legally sanctioned under the marriage laws. Hence, in view of the cultural heterogeneity, the rate of divorce is likely to differ from one caste to the other. Sample of the present study shows that divorce is now permitted by all castes and the highest rate is found among Brahmins. But, in many cases couples might have separated from each other and might not have approached the courts for legal divorce. In this context, it cannot be hypothesized that divorce is resorted to more by higher caste members than by lower caste members.

PRE -DIVORCE SITUATION:

How Marriage Alliance Took Place?

In most of the families in India matrimonial alliances are formalized by the parents and their criteria in weighing the advantages and disadvantages of the proposed marriages are drastically different from that of the marriage partners themselves. Presently, ‘arranged by the parents- marriages’ can be considered as arranged-cum-love marriages. Matrimonial classifieds in newspapers or help of matrimonial associations are sought in arranged marriage when the family fails to find “suitable” spouses for their children.

Seventy three per cent of the marriage alliances in the present study were arranged. In majority of the cases, relatives are used as intermediaries. This shows the prevalence of arranged marriages. Taking help form the matrimonial associations seemed to be another popular method for the arrangement of marriage. Parents of the respondents approached matrimonial associations in 18.9 per cent cases in order to search for a good match. The role of matrimonial advertisements in bringing marriage alliance is very nominal [6.3 %].

The legal validity of marriage among the Hindus is determined by the performance of marriage rituals. The Hindu Marriage Act, 1955 has secularized the Hindu law of marriage in all respects except in one aspect. However, there need not be any doubt about one ceremony, viz., the saptapadi which is absolutely indispensable for the performance of a Hindu marriage by the shastric rites.

Under Section 8 of the Hindu Marriage Act 1955, there exists a provision for registration of marriages. The state of Andhra Pradesh passed the Compulsory Registration of Marriage Act, 2002. The Supreme Court of India on February 15, 2006 ordered compulsory registration of marriages irrespective of religion. Despite the Compulsory Registration of Marriage Act, 2002, most of the marriages are not registered. Only 12 per cent of the marriages are registered. The registration of marriage was done in most of the cases when there emerged a need to have a proper certificate of marriage, particularly to apply for Visa.

Duration of marriage:

The first one or two years of marriage are extremely important in the life of any couple. Some marriages survive for a longer life but some are dissolved in the early years of marital life. The data clearly shows that mostly the happily-married time has been too short and those who had some years of happily-married life are very small in number.

Age At Marriage:

Researchers consistently find age at marriage to be one of the strongest predictors of marital disruption and divorce. The present study reveals that young age at marriage in conjunction with lack of the capacity to avoid bickering in the marital life resulted in divorce.

Causes Of Divorce:

As legal dissolution of marriage, divorce is primarily a legal phenomenon. Family laws of any country formulate law for divorce in which grounds are stipulated under which divorce may be availed of. These legal grounds are not just isolated legal causes, but they do signify the socio-cultural view point also. Therefore, when we deal with the causes of divorce, we have to keep in mind the legal and sociological viewpoints.

A major factor likely to affect the level of divorce in a society is the commitment that others outside the marriage have to its continuation. If marriage is defined as private, of concern principally to the married couple and having little external impact, divorce is likely to be more readily available.

The present study analyses the causes of divorce at the individual level. Hence data on how disharmony in the marital life of the respondents began is collected. The data reveals that majority of the respondents consider marriage as an intense, personal and private relationship. In a sense marital life of the respondents’ caught in something of a pincer movement. On the one side, the more that is expected of marriage and the heavier the burden of hopes and emotions it has to carry, the less likely it is to be found satisfactory. On the other side, again because marriage is essentially concerned with personal happiness and fulfillment, the ‘support’ it receives from outside diminishes. There is less pressure for a couple, largely in urban society, to stay together because their break-up has little impact outside the domestic sphere and causes fewer ripples than it would in a traditional Hindu society.

Further important ‘structural’ factor related to the increasing divorce rate is the changed social position of married women in our society. Though men’s and women’s lives continue to be structured unequally, the social and economic opportunities now open to women are certainly greater than they were five decades ago. To this extent marriage ‘traps’ women rather less than it once did. In particular, the opportunities there are for employment or, failing this, the availability of supplementary benefit makes separation and divorce a more realistic option than previously.

One further factor affecting the level of divorce is the legitimacy accorded it in a society. As more and more people have some experience of divorce, either at first hand or through someone close to them being divorced, the less opprobrium it carries. In this way, divorce has become a more normal and less remarkable life event-one to regret rather than condemn. As a result, there is now less pressure put on couples who are having marital problems to stay together. They are likely to see divorce as a reasonable solution if the marriage is in sufficient trouble rather than something to be resisted at any cost. The point here, of course, is that what is defined as ‘sufficient trouble’ to warrant divorce itself changes as divorce becomes more common. Though divorce is still traumatic and not entered into lightly, what was once held to be tolerable within a marriage may now be seen as sufficient reason for divorce.

The way in which divorce is thought to affect children provides an interesting indication of our social imagery of divorce. Presently divorce is still seen as harmful to children; however popular wisdom accepts that living with parents who are in continual conflict with each other can be even more damaging. Far better, it is now believed, for the parents to separate so that the child can be provided with a less tempestuous and more emotionally stable home life.

Basing on the complaints of divorced women, Goode [1956] formulated twelve themes that include non-support, drinking, incongruent values, and disagreement over authority, extra marital sex and neglect of home. The most frequently mentioned marital problems are communication difficulties, general incompatibility, not spending enough time at home, infidelity and disagreement over money matters [Cleek & Pearson, 1985; Kitson, 1992]. Attribution theory [Fiske and Taylor, 1992] suggests that people because of self-serving biases attribute problems to external rather than internal causes. Going by this theory the spouse is less likely to report marital problems caused by herself or himself. Amato and Rogers [1997] categorized the causes of marital dissolution as distal and proximal. Distal causes include age at marriage, education, race, wife’s employment, income etc. whereas proximal causes are anger, jealousy, dominance, infidelity, extravagance, substance use etc.

The present study collected data on factors which lead to marital disharmony. These factors are grouped into:
o Lack of understanding between the spouses
o Demand for dowry from the husband, and his parents
o Incompatibility
o Overwork [where both the spouses are involved, consequently not finding time to spend together]
o Involvement of parents of the spouses in all and sundry matters of the marital life of the spouses.
o Domestic violence.

The cause ‘lack of understanding’ describes the marital bickering resulted due to many factors. One such factor is change in the wife’s income and her educational attainment after marriage. Further education may be a stressor in marital life itself, but the relationship might also be due to reverse causation: Anticipating divorce in a low quality marriage may provide an incentive to obtain further education as a preparation for single life. Three of the wife-respondents felt that their insistence on continuing education even after marriage created friction in their marital life.

Gender role Attitudes and Division of Household work:

The women’s movement and increased numbers of dual-career couples have led to shifts in gender role attitudes–in other words, what a husband and wife expect from themselves and each other in their marital relationship roles. Traditional notions that a wife is expected to remain at home and take care of the house, children, and family, while the husband is expected to be the breadwinner and “head of the household,” have begun to decrease and more egalitarian notions (men and women are equal in all domains) have increased among both men and women Not only have gender role attitudes changed, but, concurrently, division of household work has also shifted. Although marital behaviors today are more egalitarian, wives are not satisfied. Why are women less happy in their marriages? One explanation may stem from the fact that an ideology of marital equality does not necessarily translate into an outcome of marital equality.

Sex-Role Perceptions of the Spouses:

Sex-role perceptions and attitudes towards working women are influenced by the cultural norms of gender equality which determine the position of women in society and their educational and economic status. In India, cultural norms favor women mainly in their domestic and marital roles [Rao and Rao, 1988]. If they work, they are regarded merely as secondary or supportive earners. Women’s employment does not alter sex – role perceptions mainly because of the prevailing culturally defined gender based norms. The present study reveals that sex-role perceptions of the respondents mostly dependent on cultural norms.

Husband -Wife Interactions:

There is variation in cultural ideas about proper husband-wife relations among the respondents. Moving from village to city is an important experience that allows people to assess cultural beliefs. The migration of the respondents after their marriage has created some confusion regarding husband-wife interactions.

Incompatibility:

One of the more puzzling aspects of marital crisis involves the issues of compatibility. At individual level, marriage is the bonding of man and woman on the deepest levels of life; and compatibility is vital for the union to succeed. One fourth of the respondents took incompatibility as a cause for their divorce.

Demands For Dowry:

Although dowry demands have been outlawed by the Indian government, these laws are seldom enforced and the practice of dowry is still widespread [VazL, Kanekar S., 1990]. Despite their condemnation of dowry, most women respondents seemed resigned to it, as they believed it affords young women an important degree of social legitimacy and security. For most respondents, managing a daughter’s marriage negotiations was an agonizing process fraught with tension and fear.13 per cent of the respondents said that the reason for the marital disharmony is demand for more dowries.

Overwork:

Five per cent of the respondents felt that there was hardly any time available for them to spend together with their spouse prior to their divorce. Where both spouses are working in BPO sector, because of the timings of their work they find that they overworked and do not have any strength to share communication regarding their marital life.

Involvement Of The Parents Of The Spouses:

Educated couples insist that they would like to have their privacy particularly in their marital life. They feel that intervention of even their parents is not acceptable. When parents or parents-in-law try to convince them in marital matters they decide to break the relationship rather than coping with it. 11 per cent of the respondents said that they could not solve their marital discord due to the involvement of their parents.

Domestic Violence:

Traditional rigid gender roles are one such cultural norm within various areas of India that may increase the likelihood of violence against women. These roles are defined in such a manner that sons are more likely than daughters to be of benefit to their parents, both financially and in other ways. Most of the respondents suffered domestic violence during their married life and expressed that domestic violence determined their decision to go for a divorce.

Causes of divorce can be quite complex and complicated. There is usually not one simple factor that causes the dissolution of a marriage. Family legal experts cite the following factors as major causes of divorce: poor communication, financial problems, lack of commitment, dramatic changes in priorities, and infidelity. Causes of divorce may also include physical, mental or emotional abuse, substance abuse, and lack of conflict resolution skills, unmet needs, failed expectations, and significant discrepancies in parenting.

Divorce As Legal Process:

The present study found that, divorce by mutual consent is mostly used ground for seeking divorce.

Sometimes a trivial cause may lead to divorce. One of the respondents filed a case for divorce when her mother-in-law stated her wish to stay along with the couple. Another respondent refused to meet her husband as her consent for the marriage was not obtained by the elders before fixing the marriage. Since such trivial causes may not stand legal scrutiny, lawyers advise their client to file a case on mutual consent.

Considering Divorce As A Possibility:

Once it is decided by the respondent that he/she can no longer continue their marital life, they usually take the final decision. The process of divorce moves at a pace commensurate to each person’s ability to adapt to the physical, financial and emotional changes that divorce demands. Some people move quickly through these stages, others need more time to accomplish the tasks involved in a stage and to assimilate the information and the emotional experiences the stage encompasses.

Making the decision to divorce is the first step in the divorce process, and it is a complicated step. Once a person has made the decision to end their relationship, their next task is to tell their spouse they want to end the marriage. Most of the respondents took help from either their parents or friends to tell their spouse that they want to end the marriage. These discussions were not limited to the disclosure of their decision to end their marriage but also include a collaborative effort to redistribute the property, custody of children, prospects of remarriage and other related matters. All the respondents took an advice before seeking legal advice from the lawyers and filing a petition for divorce. More than half of the respondents took advice from their family members before filing a petition for divorce. Nearly twenty two per cent of the respondents shared their marital life-experiences with their friends and followed their counsel. 20.7 per cent of the respondents approached the caste elders seeking advice. Caste elders are still playing an important role in resolving matters related to family. The present study observed that some of the middle level castes are giving importance to the caste elders. Caste elders usually act as a quasi- judicial body in deciding domestic matters. Sometimes, they take the initiative to approach the court of record on behalf of a person.

Nonetheless, the present study found that empowered women are initiating the new wave of divorce petitions. They are not keen to fight the battle as victims of marriage under statutes; rather they prefer to settle things mutually on the basis of equality. The reasons are temperamental differences, financial issues and family interferences.

The present study indicates that in vast majority of the cases, it took up to two years to get the case finally decided. The prolongation of the case of some respondents was mainly due to the fact the spouses concerned were indifferent. The period of trial of divorce case was difficult for most of the respondents, especially women. Some of the typical situations experienced by the respondents include: anxiety about the future, disturbance in the home set-up, training, education and discipline of children, social stigma, non-satisfaction of sexual needs, economic non-support. The incidence of cohabitation during the pendency of the case was inquired into. It was found that majority of the respondents were already separated then the trial started. In few cases respondents had already got remarried and started cohabiting with the new spouse though it was illegal.

Custody Of Children:

One of the most pressing concerns in regard to divorce is the custody of children. The question of custody of children has been dealt with in Section 26 of the Hindu Marriage Act. In making an order in respect of the custody of child, the welfare of the children is the paramount consideration, not the rights of the parents. The respondents having children are not many. 28 percent of the respondents are having children. Of these most of the respondents are having only one child. Majority of the children are living with either with their mothers or parents of mother. It is found that not having children makes divorce easier.

POST-DIVORCE EXPERIENCES:

The present analysis observed that majority of the respondents went to their parents and trying to fill the gap in their lives by taking work more seriously or going in for higher studies. It is found that presently divorce is viewed by the divorcees as a mechanism which provides freedom from tensions and opportunities for career development.

Remarriage:

Conceptually it is useful to think of marital dissolution and remarriage as the component parts of a process that takes people back and forth between being married and not being married. There are two states [married and unmarried], and dissolution is the process or event that transfers people from being married to being unmarried while remarriage takes people in the opposite direction. Marriages end at the time of divorce.

Conclusion:

‘Divorce’, according to Lipman-Blumen [1977] is a life crisis which society does not promote, as a result of which social rituals marking divorce are largely absent. Blumen [1977] attributed the painful experience of divorcing to lack of institutionalized support for divorce, in the form of social rituals. Therefore it is recommended that some kind of mechanism in the form of social ritual to mark the transition from married to divorced status has to be evolved, in order to make the experience of divorce bearable for both the spouses, especially wife.

It is also recommended to start divorce counseling on a large scale to help the divorcing and the divorced overcome the stress and cope with the future situation.

Since the study is specific to the population, the findings cannot be generalized. The small size of the sample may not succeed in relating the study to the larger context. In view of globalization process of which disinvestment and privatization are corollaries, large scale retrenchments, cuts in subsidies, and shrinking social security are foreseen. In this backdrop the alienation process will gain momentum which will result in family life disruption. Therefore, it is suggested that further studies on divorce should take cognizance of the changed situation.