This article analyses whether the Bill is able to strike a judicious balance between a liberal approach to divorce and protecting women’s rights…
The Marriage Laws (Amendment) Bill, 2013, as passed by the Rajya Sabha on August 26 seeks to amend the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954. The main objective behind introduction of the Bill is to provide for “irretrievable breakdown of marriage” as a new ground for divorce since the existing grounds, under Section 13 of the Hindu Marriage Act, 1955, proved to be inadequate to deal with a situation where either or both the spouses no longer are able to or willing to live with each other and the martial relationship is destroyed to an extent that there is no hope of resumption of spousal duties. The addition of this new ground for divorce is, however, subject to certain safeguards to the wife and the affected children. The provisions in the Bill, which lay down such safeguards, have provoked debates as to whether the amendments have liberalized divorce provisions way too much in favour of women making it oppressive and harsh for men.
By inserting Section 13C, the Bill has provided “irretrievable breakdown of marriage” as a new ground for divorce. The court shall not hold a marriage to have broken down irretrievably unless the parties have lived apart for a continuous period of not less than three years immediately preceding the presentation of the petition. The need for introducing this new ground was discussed by the judiciary in Ms Joden Diengdeh vs S.S. Chopra reported in AIR 1985SC935, the Supreme Court commenting on the absence of irretrievable breakdown as a ground for divorce observed that it is necessary to introduce this ground as no purpose will be served by continuance of marriage which has completely broken down. In order to mitigate the ordeal, caused due to complete breakdown, the need for this ground was also discussed in detail in Naveen Kohli vs Neelu Kohli reported in AIR 2006SC1675, wherein the Supreme Court observed that it would be uncompassionate and inhumane to compel the parties to put up with each other and save the guise of marriage even though there are no chances of them ever living together as a married couple and perform marital obligations.
To understand the scope of the Bill let us discuss the two contentious provisions that have been incorporated in the Bill.
Section 13D provides for wife’s right to oppose the grant of a decree on the ground that the dissolution of marriage would result in “grave financial hardship” to her and that it would be wrong in all circumstances to dissolve the marriage. The legislature has gone a little too far in providing this safeguard to women. The practical questions that come up before us are – what amounts to “grave financial hardship”? To what extent will the “arrangements” be made to eliminate the hardship? In the absence of a definition as to what would constitute “grave financial hardship” there is great likelihood of ambiguity and misuse of the provision as the wife would now ‘sell’ divorce and would be in a position to make unreasonable financial demands under the garb of ‘satisfying arrangements’ that would eliminate their hardship.
Further, the legislature has totally ignored the possibility of a situation where a husband becomes a respondent to a petition moved on the ground of irretrievable breakdown and feels that he would suffer financial hardship if dissolution of marriage is allowed. The gender impartiality approach like that in Section 24 of the HMA, 1955, has been disregarded.
Section 13F as incorporated in the Bill reflects the concept of “equality is equity” in relation to joint matrimonial property. According to the provision, the court may order, at the time of passing the decree of divorce on a petition made by the wife, that compensation to be given which shall include a share in husband’s share of immovable property (other than inherited and inheritable immovable property) and while determining such compensation the value of inherited or inheritable property of the husband shall be taken into account. By enacting this provision the legislature has recognized women’s rights to matrimonial property and aims at providing security to women in terms of property that has been acquired or maintained by the combined efforts of both the parties. To put it in perspective, a wife’s contribution, both financial and emotional, would be taken into consideration and when the marriage breaks down, the wife would get a share in the property, irrespective of in whose name it stands. It enacts that it is the discretion of the judge to order what is just but this discretion must be exercised judiciously keeping a check on the misuse of this provision. The compensation can be ascertained after considering factors like the duration of marriage, financial contributions, age and class of the parties.
Enactment of this provision safeguards the economic interests of women post the grant of decree of divorce on the grounds Of irretrievable breakdown but yet again failed to foresee a situation where a husband is a dependent and would need compensation. The idea of sex equality mandates that the rights should not be gender specific i.e., exclusively favouring the females.
The Marriage Laws (Amendment) Bill, 2013, seeks to strengthen the financial position of women in complex situations arising out of matrimonial discord. It, however, does not provide safeguards to check abuse of the provisions. While applying the judicial principles of equity, the judiciary would have to decide according to the situation in every case and not strictly according to the reservations and safeguards enacted. Yet it may be suggested, with all due respect, that legislation and not litigation would help us to achieve a judicious balance in complex areas like personal laws.
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