By Monika Banode, Gujarat National Law University, Gandhinagar.
The Marriage Laws (Amendment) Bill, 2010 was introduced in the Rajya Sabha on August 4, 2010 to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. The Standing Parliamentary Committee has submitted its report on the Bill on March 1, 2011. During the Monsoon Session of 2013, the government circulated amendments to the 2010 Amendment Bill. That new Bill was passed in the Rajya Sabha by the UPA government but could not be passed in the Lok Sabha since before the Bill could be introduced there, the Lok Sabha was dissolved.
Hon’ble Supreme Court, in the case of Ms. Jordan Diengdeh vs. S.S. Chopra (AIR 1985 SC 935) and Naveen Kohli vs. Neelu Kohli (AIR 2006 SC 1675) has observed and recommended that irretrievable breakdown of marriage should be incorporated as another ground for grant of divorce. And as a result, The Marriage Laws (Amendment) Bill, 1981 to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, was introduced in Lok Sabha on the 27th February, 1981. However, before the Bill could be considered and passed by Lok Sabha, the Seventh Lok Sabha was dissolved on 31st December, 1984, and hence the Bill lapsed. A survey on the rights and entitlements of separated women in India shows that while separation/divorce clearly spells financial disaster for women and children, it leaves the separated male with almost all the assets and with more income to spend on himself.
After recommendations of the 71st Report of the Law Commission of India, the Supreme Court’s directions and demand from various sections of society, bill for amendment of the marriage laws was drafted. The Bill proposes change in the Hindu Marriage Act, 1955 and Special Marriage Act, 1954. Both Acts i.e. the Hindu Marriage Act, 1955 and Special Marriage Act, 1954 have provision for divorce by mutual consensus of both the parties. The Amendment proposed irretrievable breakdown as an additional ground for seeking divorce. Under this provision any party to the marriage can file a petition for divorce. The Bill provides safeguards to parties to marriage who file petition for grant of divorce by consent from harassment in court if any of the party does not come to the court or willfully avoids the court to keep the divorce proceedings inclusive. The Marriage Laws (Amendment) Bill, 2010 seeks to empower the courts to decide the compensation amount from the husband’s inherited and inheritable property for the wife and children once the marriage legally ends.
UPA government in 2013 has initiated a move to bring a bill in Parliament and allow both parties to file for divorce on the ground of “irretrievable breakdown” of marriage. The irretrievable breakdown of marriage is not a ground of divorce either under the Hindu Marriage Act, 1955 or the Special Marriage Act, 1954. The proposed amendment to the marriage laws aims at accelerating the process of divorce. When there is an irretrievable breakdown of marriage, the parties who are going through a broken marriage and cannot live together have to undergo a lot of mental agony. To save parties of irretrievable broken marriage from mental agony, it has further been proposed to waive off the cooling period of six months granted to parties after the presentation of the bill. The cooling off period will be decided by the Courts on case to case basis. The proposed changes in the bill expressly laid emphasis on the welfare of the children while granting divorce to the parties.
In order to put an end to prolonged legal battles in divorce cases, the then Law Ministry has proposed that courts to be free to exercise discretion in granting divorce after three years if one of the partners does not move a second ‘joint application’ for divorce with mutual consent. There is a provision in the draft for ensuring compensation for wife and children from the husband’s immovable property in case of a divorce and the amount will be decided by the court. It has also been proposed to empower courts to decide the compensation amount for a wife and children from the husband’s inherited and inheritable property once a marriage legally ends and thus a new section 13 (f) has been added to this effect.
A six to eighteen months waiting period or cooling off period already exists in the present law when the two parties move joint application for divorce with mutual consent. The previous UPA government had struggled for a consensus on the bill after it was first introduced in Rajya Sabha in 2010. It had gone back to the then Cabinet on four occasions for changes. It was finally passed in August, 2013 in the upper house but could not be cleared by the lower house. The legislation lapsed following dissolution of 15th Lok Sabha. The Marriage Laws (Amendment) Bill, 2013 that was passed by the Rajya Sabha lapsed before it could be considered by the Lok Sabha, as the lower house was dissolved upon completion of its term and general elections were held.
Appreciation of the Bill:
- The provisions of making irretrievable breakdown of marriage as a ground of divorce introduced by the Amendment Bill have been appreciated by the people specially the couples whose marriage has broken down beyond repair.
- To mitigate the hardship that could have been caused to women the bill also proposed women a right in the property of the husband acquired by him during the marriage, though the quantum of the share would be decided upon the case to case basis.
- The Marriage Laws Amendment Bill, 2010 provides safeguards to the parties who file petition for grant of divorce keeping in view the interests of the children and also providing financial support to the women by giving her right in the property of the husband.
- The Hindu Marriage Act, 1955 provides various grounds for dissolution of marriage by decree of Court. Cruelty, desertion, adultery, unsoundness of mind, conversion to other religion, renunciation of world, virulent and incurable form of leprosy, venereal disease in a communicable form and not heard of being alive for a period of seven years or more are the grounds for divorce provided under Section 13 of the Act. Similar grounds for divorce have been provided under Section 27 of the Special Marriage Act, 1954. The irretrievable breakdown of marriage is not a ground for divorce under both the Acts.
Under the 2010 bill either a husband or a wife could file for divorce after “they had lived apart for a continuous period of not less than three years”. The court would then pass a decree unless the opposing party could prove to the court’s satisfaction that the marriage had not broken down irretrievably. This amendment bill was presumably moved because of a “demand from various quarters”
Women’s organizations and groups have suggested that the amendment to the Marriage Law Amendment Bill should be redrafted to make it mandatory for the court to order that both immovable and movable property acquired during the subsistence of marriage be divided equally between the wife and husband. It has also been suggested that the court should take into account any disadvantage suffered by the woman or the children with her and give her a further share of the property. The Hon’ble Supreme Court has held that only the fact which has to be considered while dealing with the application under this code is whether the filing of a false criminal complaint sufficiently proves matrimonial cruelty as would entitle the injured party to claim dissolution of marriage.
When it has been recommended by the Law commission Reports in 1978 and 2009 that irretrievable breakdown of marriages be made a ground for dissolution of marriage and the Amendment Bill had been passed by the Rajya Sabha, the Bill has to be seriously taken into consideration in the Lok Sabha and has to be passed.
BJP leaders at the time of passing of the Hindu Marriage Act have called “irretrievable breakdown” as the conventional jurisprudence of divorce since the person who causes it her/himself was entitled to ask for the divorce. According to them, irretrievable breakdown in marriage should be “codified” and should not become “a tool in the hand of the husband”. Since political views of NDA were not favoring the Bill in its original form, they may not be inclined towards passing of the Bill in the present form. After the Parliamentary election of 2014, BJP is in full majority at the centre, they cannot pass the Bill in the Lok Sabha as the Bill is based on UPA ideology. Changes in the Bill are bound to take place.
All India Democratic Women’s Association, All India Women’s Conference, Centre for Women’s Development Studies, All India Dalit Mahila Adhikar Manch, National Federation of Indian Women, Guild of Service, Young Women’s Christian Association, Joint Women’s Programme and Muslim Women’s Forum mentioned in a letter dated 21May 2012 to Salman Khurshid