DIVORCE

संवन्ध विच्छेद

Introduction

• Divorce means the permanent termination of the marital life of the husband and wife.
• Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage between the parties.
• Though divorce laws vary among jurisdictions, there are two basic approaches to divorce: fault based and no-fault based.
• Under a no-fault divorce system, divorce requires no allegation or proof of fault of either party; spouses can divorce simply because they no longer wish to remain married.
• Fault-based divorce systems require proof by one party that the other party has committed an act incompatible to the marriage.
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• Divorce is the dissolution of marital relations; in this process marriage is completely broken down either in social or legal context.
• The Black Dictionary of law has defined divorce as "the legal separation of husband and wife affected by the judgment of decree of a court and either totally dissolving the married relations or suspending its effect so far as concern the combination of the practices (1994).
• In Hindu society marriage is taken as a holy union between a man and a woman for the performance of religious duties.
• According to religious philosophy therefore, it is indissoluble and it is for all the birth to come.

• There are four procedures of customary divorces, which are as follows:
• a) Divorce obtained by some formal action:
• Married couples that are going to be divorced, have to go through some formal actions of divorce by custom in front of their community's assembly or kinsmen assembly, for example –tearing of a 'pan' leaf by both the parities indicates the end of a marriage.
• b) Divorce obtained by writing:
• Divorce which is obtained by writing on the 'Divorce Form' is called 'Dohoro Likhat Gari Chhornu' or' Chhuttanama' or 'Ichhapatra' in local language; all meaning divorce.
• c) Divorce obtained by oral pronouncement:
• This kind of divorce is prevalent among Musalman communities, which are called (i)Talaque-I-Rajai (ii)Talaque-I-bine (ii) Taakaque-I-Mugallja

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• d) Divorce obtained by "poila" or "Jari" or "Chuman" or "Sagai" form:
• When a married woman elopes with someone other than her husband, her first marriage automatically breaks down (Thaplia 1995:29-30).Different customary divorce practices and patterns among different caste and ethnic groups in Nepal, which are legally not seen in the public ground can be another crucial research area for sociologists
• Divorce, also known as dissolution of marriage, is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state

Legal System for Divorce

• In the Hindu Society, marriage in the Vedic period (1400-1000 BC) was regarded as a religious sacrament and was indissoluble by human action but Narada and Parasara, the two Smirti writers, had laid down that marriage code be dissolved if the husband was impotent.
• "The Buddhist literature indicates that divorce was rather unusual in the cultured section of the society, women points out her husband that thought she did not love him, she refrained from marring again because it was not the custom in the family for a wedding wife to take new husband"(Altakar 1980: 134).
• During the medieval period (879-1768) remarriage and divorce for women was not allowed in the higher caste.
• Beside Hindus, marriage is the sacred social institution among the Christians, whether Catholic or Protestant.
• According to the Holy Bible the first marriage of human society was performed at the initiative by himself (Pothan 1986:41). However, divorce has been permitted under the special legal provision for Christian.

• In the first written legal code of Nepal (Muliki Ain 1910 B.S.) has permitted a man to leave his wife by the method of sinko-kati chhuttninu(to break a small thin stick of bamboo by husband ), it indicates legal recognition of divorce. Several provisions are made under two separate headings;
• 1) Parpachuke Garnyako(on Divorce) and 2) Lognya Swasniko Mahal (on the Section of Husband and Wife), This legal code has introduced a remarkable change on the women and by the right of divorce and separation.
• Similarly the section on Husband and Wife in the Naya Muluki Ain( New Legal Code, 2020 B.S.) which became effective after one hundred and ten years of first legal code of Nepal.
• The New Legal Code has provide different provisions for divorce on following circumstances:
• 1. The wife or husband must have resided at separate location for a period of at least three years.

• 2. Either the wife or husband must have engaged in a conspiracy against the life of the other or have committed a crime of serious physical assault against them, causing grave injuries.
• 3. The wife is found to have engaged in extra-marital sexual affairs or to have eloped
• 4 The wife has made a confession in a competent court that she has had sexual relations with somebody besides her husband (Muluki Ain, 10th amendment 2055:135).

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• The new Civil Code was introduced in Nepal in August 2018 repelling earlier Country Code that was introduced in 1963/64.��The provision related to getting divorce provided under Chapter 3 of "Provisions related to Divorce". There are specific provisions which has allowed both wife as well as husband initiate to divorce (Sec 93).

Nepalese legal provisions relating to divorce �sec 93 to 104

• Sec 93. Divorce may be effected by consent of both: दुवैको मन्जुरीले सम्बन्ध विच्छेद गर्न सक्ने
• If both the husband and wife so desire, they may divorce the relationship of husband and wife at any time.

Sec 94. Husband may effect divorce: पतिले सम्बन्ध विच्छेद गर्न सक्ने

• The husband may effect divorce in any of the following circumstances even without consent of the wife:
• (a) Except where the husband and wife are living separately after obtaining their partition share or separating bread and board in accordance with law, if the wife has been living separately for three or more consecutive years, without consent of the husband,
• (b) If the wife deprives the husband of maintenance costs or expels him from the house,
• (c) If the wife commits an act or conspiracy likely to cause the grievous hurt or other severe physical or mental pain to the husband,
• (d) If the wife is proved to have made sexual relation with another person.

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Sec 95. Wife may effect divorce: पत्नीले सम्बन्ध विच्छेद गर्न सक्ने

• The wife may effect divorce in any of the following circumstances, even without consent of the husband:
• (a) Except where the husband and wife are living separately after obtaining their partition share or separating bread and board in accordance with law, if the husband has been living separately for three years or more consecutively, without consent of the wife,
• (b) If the husband deprives the wife of maintenance costs or expels her from home,
• (c) If the husband commits an act or conspiracy likely to cause grievous hurt or other severe physical or mental pain to the wife,
• (d) If the husband concludes another marriage,
• (e) If the husband is proved to have made sexual intercourse with another woman,
• (f) If the husband is proved to have raped the wife.

• Sec 96. Petition to be filed for divorce: सम्बन्ध विच्छेदको लागि निवेदन दिनुपर्ने
• The husband or wife, as the case may be, desiring to get the relationship divorced shall file a petition in the court.
• Sec 97. Mediation to be made between husband and wife: पति पत्नीको मेलमिलाप गराउनुपर्ने
• If a petition is filed for divorce pursuant to Section 96, the court shall, to the extent possible, remind and convince both the parties and conciliate them.
• Sec 98. Divorce to be effected: सम्बन्ध विच्छेद गरिदिनु पर्ने
• If the court fails to make conciliation between the husband and wife even after reminding and convincing them pursuant to Section 97 and deems appropriate to get the relationship divorced rather than to continue it any longer, the court shall effect divorce between them. Provided that if the husband and wife do not agree to conciliate between them despite being reminded and convinced by the court to that effect, the court shall effect divorce after one year of the filing of the petition.

• Sec 99. Partition of property to be effected before divorce: सम्बन्ध विच्छेद गर्नु अघि अंशबण्डा गर्नुपर्ने
• (1) If divorce is to be effected because of the husband, the concerned court shall, if the wife so demands, cause partition to be effected between the husband and wife before effecting divorce.
• (2) If a petition is filed by the wife for divorce on the ground referred to in clause (b), (c), (d), (e) or (f) of Section 95, divorce is deemed to be effected because of the husband, for the purposes of sub-section (1).
• (3) If a property in common is registered in the name of both husband and wife or either of them, then such property shall be partitioned between them according to law, prior to effecting divorce.
• (4) If the husband himself has not obtained partition from his father or other coparceners, the court shall, by causing both the parties to disclose the coparceners, and if there are other coparceners who are entitled to partition, by inquiring such coparceners as well, cause partition to be apportioned between the husband and wife.

• (5) If it appears that it may take a long time to effect partition pursuant to sub-section (1), (3) or (4), the court may effect divorce between the husband and wife and order the husband to provide the wife with monthly expenses as alimony according to the property and income of the husband until the partition is effected.
• Provided that if such a woman concludes another marriage before effecting partition, she shall not be entitled to a partition share. (6) Notwithstanding anything contained elsewhere in this Section, if a petition is filed for divorce on the ground referred to in clause (b), (c) or (d) of Section 94, the husband shall not be compelled to provide partition share or alimony to the wife pursuant to this Chapter.

• Sec 100. Order to pay lump sum amount or alimony: एकमुष्ठ रकम वा खर्च भराई दिन सक्ने
• Notwithstanding anything contained in Section 99, if the wife who effects divorce desires to obtain from the husband a lump sum amount or annual or monthly alimony or expense, instead of the partition share, the court may order the husband to provide such a wife with a lump sum amount or annual or monthly alimony or expense on the basis of his property or income. Provided that if such a wife concludes another marriage, it is not required to provide such amount or alimony.

• Sec 101. Order to provide maintenance costs: खान लगाउने खर्च भराई दिन सक्ने
• If the wife, who has not obtained partition from the husband for there being no property for partition under Section 99, desires to receive maintenance costs from the husband and the husband has income, the Court may order the husband to provide maintenance costs to the wife according to the income of the divorced husband. Provided that:
• (1) If such a wife concludes another marriage, it is not required to provide such costs,
• (2) If the income of the wife is higher than that of the husband, it is not required to provide such costs.

• Sec 102. To be according to agreement: सहमति बमोजिम हुने
• Notwithstanding anything contained elsewhere in this Chapter, if there exists a written agreement between the husband and wife on the partition share or alimony to which the wife is entitled upon divorce, it shall be according to such agreement. Provided that no agreement which is against the interest of a minor may be made.
• Sec 103. Previous child or husband to obtain property: अघिल्लो सन्तान वा पतिले सम्पत्ति पाउने
• On the death of a divorcee woman, her son, daughter, if any, shall be entitled to her property, and if not, the previous husband shall obtain the property received by her from such a husband, and the successor on her mother's side shall obtain the other property.

• Sec 104. Statute of limitation: हदम्याद
• A person aggrieved from any act done or action taken under this Chapter may make a lawsuit within three months after the date of accrual of the cause of action or knowledge of such an act or action.

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