Both parties engaged in the relationship must have a profound understanding of the value of marriage in order for it to flourish and be happy.
--BY RAJENDRA PD KOIRALA
Divorce rates are on the rise worldwide. Sociologists have identified significant differences in the causes of divorce across different countries and regions. Adultery is a leading cause of divorce worldwide, with estimates suggesting that it contributes to a significant portion of divorces in many countries. Fraud is also a factor in roughly a quarter of divorces in the United States.
It is a common misconception that divorce is not something that can happen to anyone. In reality, divorce rates are alarmingly high. Data shows the Kathmandu District Court handled 200 divorce cases between 2018 and 2020. Parting couples cited boredom, a lack of commitment, a lack of intimacy, too many disagreements and arguments, infidelity, early marriage, financial considerations, unrealistic expectations, use of abusive language, fashionism, disregarding each other's needs, unfamiliar customs, and following other people's desires as the reasons behind divorce. These findings were based on interviews with individuals involved in divorce cases that were handled by the Kathmandu District Court.
Legal System for Divorce
In Hindu society, marriage was considered a sacred institution throughout the Vedic period (between 1400-1000 BC), inseparable by human action. However, the Smriti scribes Narada and Parasara stipulated that a marriage could be terminated if the husband was impotent, and a woman was permitted to remarry under certain circumstances, such as if her spouse disappeared, died, became ascetic, lost the ability to have children, or was deemed too lenient. (Altekar 1980:134) According to the ancient philosopher and economist Kautilya, a divorce could be granted on the grounds of mutual hostility if the husband and wife strongly disliked each other. According to Buddhist literature, divorce was uncommon among the elite. One woman reportedly chose not to remarry, even though she did not love her husband, because it was against family tradition for a newlywed to accept a new spouse. (Altekar 1980:134) During the mediaeval period (879-1768), women in higher castes were prohibited from divorcing or remarrying.
Marriage is highly revered in Christian societies, both Catholic and Protestant, and is considered a central social institution. According to the Holy Bible, God ordained the first marriage in human society. (Pothan 1986:41). In the United Kingdom, divorce was permitted on the sole grounds of adultery after 1857 in the London High Court and after 1912 in many provincial courts.(Pothan 1986:41) Similarly, the Muslim Marital Dissolution Act VIII of 1939 allows for divorce on certain grounds. However, there are still some countries, such as Argentina, Brazil, Chile, Colombia, Eire, Paraguay, the Philippines, and Republican Spain, where divorce is illegal by law. (Rheintein 1972)
The new legal code, passed in 2020 BS, explicitly states that divorce is legal for both husband and wife in Nepal. The first written legal code of Nepal, the Muluki Ain, 1910 BS, allows a man to divorce his wife by breaking a short, thin stick of bamboo, known as sinko-kati chhuttninu. The code includes a number of provisions established under two different headings - Parpachuke Garneko (On Divorce) and Logne Swasni Ko Mahal (on the Section of Husband and Wife). The rights to divorce and separation have undergone a notable alteration as a result of this legal rule. The Naya Muluki Ain, Nepal's new legal code that went into force in 2020 BS - 110 years after the first legal code came into being - also has similar provisions.
The law in Nepal supports divorce in cases of anomalous conduct, lack of support, and age barriers during the course of a marriage. It provides justice and a legal means for ending marital connections. According to studies, 7.5% of male divorces result from their wives' infertility, which is acceptable under the law. In Hindu tradition, a woman is denied sacramental rights in social life if she does not become a mother during her marriage. However, in Nepal, dissatisfaction, infidelity, contradictions, discrepancies, and non-support across all castes and ethnic groups can also lead to divorce. The legal framework currently supports the husband's right to remarry.
The current generation understands and practices marriage as a state based on the post-modern idea that marriage is a ritual of passage from one stage of life to another, that cannot be broken once it is entered into. However, marriage is actually a legally binding, peaceful union between two consenting individuals (opposite or same-sex) for the purpose of sexual fulfilment. The support and cooperation of family, friends, and relatives is also important for the sustainability and healthy practice of marriage.
No matter how you feel about marriage, it seems like more and more people are filing for divorce and giving various justifications. This rising state of separation is not pleasant for parents who desire family harmony and it is not beneficial for the cultural and healthy growth of society.
What is causing divorce?
The divorce rate has been rising recently for several reasons. Younger people are more likely to approach the idea of divorce, and their decision-making skills may be impacted by the accessibility and utilisation of technology and studies. Being economically active can demonstrate independence and self-respect, leading to a greater tendency to take others' intrusion into private affairs less kindly. Additionally, traditional views on marriage, family structure, and responsibility can create a complex psyche when it comes to independent living. This can be further complicated by post-marriage relationships, developing goals, dealing with shortages, and shared mistrust, leading to instances of domestic violence and family issues that ultimately result in divorce proceedings.
In industrialised nations, there are expert consultation services available to help normalise and simplify small family conflicts and misunderstandings. However, in many countries, these services are not widely available or accessible, and people turn to legal action without seeking other alternatives. This can lead to the escalation of small domestic problems and the breakdown of relationships.
It is normal to live apart if you are unable to live together. With this objective and purpose in mind, the law contains provisions for divorce. However, it is a hasty decision to call it quits without considering the potential of cohabitating. If the issue is left unattended for too long, it may grow and result in violence and other major crimes.
Marriage not only affects the interactions, actions, and decisions of the couple but also has consequences for the present and future of their dependent offspring. The impact of divorce and subsequent remarriage can be significant on the couple's children, as the love, affection, and guardianship for their prior children may dwindle, leading to neglect. This can result in children becoming homeless, suffering from addictions, and being used illegally due to unfavourable associations. A responsible divorcing spouse should exercise caution and consider the potential impact on their children before making a decision that could imperil an innocent child with a promising future.
The legal requirement of alimony following divorce has also contributed to the trend towards divorce. In most cases, both the husband and wife make contributions to the property accumulated during the marriage. It is fair for the legal system to award a portion of that property to the wife in the event of a separation. Under the existing laws, inheriting ancestral property is based on being born into a connected family, regardless of the person's contribution to the acquisition of the property. This has led to divorce being seen as a simple option for the next generation, as neither spouse contributed to the family's wealth accumulation and are entitled to an equal share of it. The court has determined that the property of the husband should be given to the wife, considering the fact that, if there is no possibility of remarriage, if the relationship with the woman is not smooth, if she has no income, profession and business, the rest of the woman's life becomes difficult.
Although the legal system is required to provide fair compensation to the woman, for the next capable generation, the system of taking a share from the divorced man is necessary in the uncomfortable situation of having to make the unpleasant decision of divorce when the marriage relationship is difficult. There is a concern that this system might be sending the message to women that they lack the strength and independence to succeed in life and are destined to be reliant and weak. Therefore, it would appear important for lawmakers to change such laws as soon as possible.
The breakdown of a marriage is not always solely the fault of the married couple. The psychology of separation can also be influenced by the way of thinking, acting, working, and adhering to traditional family values of the couple's family and relatives. When one of the couple has independent future prospects, they may find the situation uncomfortable and feel like a burden on the marriage relationship. This can happen when the older generation doesn't understand the mindset of the younger generation, tries to maintain family ties in the name of tradition, tries to make the couple adapt without considering the family, culture, and environment they grew up in, and tries to make them dependent on themselves. This can lead to separation becoming more likely as a result of these circumstances.
The younger generation is becoming increasingly open-minded about sexual issues. This is largely due to the influence of Western culture, which is more accessible through technology. Sexual conflicts and issues with money management among couples who spend a lot of time apart can heighten family disputes and even lead to the point of family breakdown, particularly when one of the partners is employed overseas. It is important to understand and evaluate this phenomenon from the perspective of social psychology, as it can have a significant impact on family dynamics and relationships.
In recent years, there has been an increasing tendency to view marriage as a relatively temporary commitment, due to the ease with which people can get married and divorce. When an individual makes the difficult decision to divorce in order to avoid family disintegration, the legal requirement to wait for one year after filing the case before a decision can be made may not be effective in achieving the desired outcome. The court also recognizes the risk of mental anguish and further violence during that time, and taking into account all the circumstances, the results, and effects of spending a year in court for counselling and reminding the couple who came to the court only for a judicial declaration of divorce after all efforts made at home were unsuccessful. It seems prudent to proceed with caution in this matter.
Whether we view marriage as a ritual or a legal agreement, both parties engaged in the relationship must have a profound understanding of the value of marriage in order for it to flourish and be happy. The unique art of married life is living together with equal dignity while giving up, submitting, and realising one's belonging. Disputes can be resolved on their own if the couple can follow this principle. The role of the court and judge in family affairs should be limited. There are other issues besides the rise in divorce cases in court.
The problem cannot be solely solved by the court's decision in such instances. It is important to change the way people think and feel about marriage in our society. Changes in behaviour and education are needed. People should take more responsibility for building trust and family harmony. The issue is still present, so if it does arise, it should be dealt with right away.
(Koirala is a PhD scholar He can be reached at [email protected] for comments.)