Divorce is the legal cessation of a matrimonial bond. It is the separation of man and wife, effected by the judgment or decree of a court, and either totally dissolving the marriage relation, or suspending its effects so far as concerns the cohabitation of the parties.
In the general sense, divorce means the end of a marital relationship or the separation of the marital relationship existing between the husband and wife. To describe it in a wider sense the process leading to the end of the relationship between the husband and wife in a legal and social way can be called divorce. We cannot think of the wife without marriage and divorce without marriage. In other words, divorce is also called the deeds of abandonment, relief, separation, and talk.
According to the Supreme Court Annual Report, 2077/78 the details of the divorce cases in the court are as follows:
| Supreme Court
|| High Court
|| District court
As per this report, divorce cases are increasing in Nepal. The main reasons for the increase in divorce cases are as follows:
Legal Grounds for divorce
- Absence of direct identification between men and women before marriage,
- Lack of transparent communication and consultation with each other,
- No free consent
- Young age marriage without any maturity,
- Interference of the third party between the couple,
- Physical and mental disability,
- Lack of sexual satisfaction,
- Inter-caste marriage (it may create discord in the family)
- Maltreats by each party,
- Lack of understanding of reproduction and child,
- Lack of employment,
- Advancement of foreign employment,
- Desire to live a life without any oppression and pressure etc.
Previously there were no laws relating to divorce in the ancient Hindu period because the relationship between man and wife is considered a relation of bone and flesh. However, there are some changes in the theological concept according to the changing thoughts, time, and society. UDHR, 1948 provides freedom and dignity to all humans by birth. It declares “All human beings are born free and equal in dignity and rights”also it ensures that “They are entitled to equal rights as to marriage, during marriage and its dissolution looking towards international provisions, each state has its own criteria for divorce. As per The Hindu Marriage Act, of 1955 the grounds for divorce are:
- Unsound mind
- Venereal disease
- Renounced the word
- Judicial separation
- Bestiality etc.
As per the civil code of the people’s republic of China, 2020, the grounds for divorce are:
- Bigamy or Cohabitates
- Domestic violence or Maltreats or Deserts a family member
- Gambling, Drug abuse
- Mutual discord
- Absence of mutual affection
As per the civil code, 1896 of Japan the grounds for divorce are:
- Bad faith
- Mental illness
As per the UK, the grounds for divorce are:
- Unreasonable behavior
- Living apart
As per the USA, the grounds for divorce are:
- Mental illness
- Criminal conviction
- Drug abuse
- Religious reasons
As per Nepal, the grounds for divorce are:
- Divorce can be acquired by mutual consent;
- The husband can get a divorce;
- The wife can get a divorce; and
- The conditions for an automatic divorce between the husband and the wife.
a. Divorce by Mutual Consent:
The husband and the wife can get divorced at any time if both of them wish so.
b. The Conditions in which the Husband can get a Divorce:
- With the exception of the wife living separately or getting the property in partition, if the wife stays continuously for 3 years or more separate from the husband;
- If the wife does not provide food and boarding or expels the husband from the house;
- If the wife does some work or scheming for the breakdown of any organ in the body of the husband or any work which causes great physical or mental pain and
- If it is proved that the wife has had sexual relations with another person.
c. The Conditions under which the Wife can get a Divorce:
The wife can get a divorce even without the consent of the husband in the following conditions:
- With the exception of the wife living separately or getting the property in partition, if the husband stays separately for a period of 3 years or more without the permission of the wife;
- If the husband does not provide food and boarding to the wife and expels her from the house;
- If the husband does some work or does scheming for the breakdown of any organ in the body of the wife or any work which causes great physical or mental pain;
- If the husband marries another wife;
- If it is proved that the husband has had sexual relations with another woman and
- If it is proved that the husband has committed marital rape with the wife.
d. The Conditions for Automatic Divorce:
Application and procedure for divorce:
- If the marriage was performed without the full consent of the husband and the wife, the marital relations between them shall automatically ends up in divorce;
- If any individual has performed incestuous marriage subject to punishment, the marital relations between the husband and the wife automatically ends up in divorce and
- If the wife marriages another person before the divorce.
As performer Muluki Ain, Logne Swasni
ko mahal, if the wife wants to get a divorce from her husband, she can directly file an application in district court and if the husband wants to get a divorce from his wife or both want a divorce in mutual consent they had to file an application in a municipality or the Village Development Committee, which is quite discriminatory. Later supreme court of Nepal quashed this provision in one case relating discard on this saying, “this provision is discriminatory in nature so amend this provision within the one year without making discrimination between husband and wife.”
The Process of the Application for Divorce: On the basis of the legal arrangement made by sec 93, 94, and 95 of the Country Civil Code 2074, the husband or the wife in the district of their residence or in the district of the residence of the defendant can file their application in the concerned District Court and the husband and wife can file the application for divorce in the Judicial Committee according to the Local Government Act 2074.
The Court can Reconcile both Parties: After the registration for the divorce of the husband and the wife in the District Court, the Court shall try to make them understand the consequences and plead for a reunion between the husband and the wife. But if the Court cannot do so and finds it appropriate for divorce, it should provide divorce to them. But according to the provisions, the Court is allowed to grant the divorce only one year after the registration of the application for divorce by the husband and wife.
Partition before Divorce: The legal provision has been made for the Court to provide property in a partition to the wife before granting divorce if it is demanded in conditions where divorce is possible by the reason of the husband. If the joint property is in the name of the husband and wife or in the name of either the husband or wife, such property should be partitioned between them according to the law before granting a divorce. If the property is yet to be acquired in the partition by the husband from his father or other coparceners, the court shall ask for the details of the property in the partition and provide property to both husband and wife in the partition.
Thus, Divorce (or the dissolution of marriage) is the final termination of a marital union canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties. In most countries, divorce requires the section of a Court or other authority in a legal process. The legal process for divorce may also involve issues of spousal support, child custody, child support, distribution of property, and division of debt.
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