The right to separate from the spouse is seriously restricted because of social responsibility created by marital relationship. Law is interested in keeping the order within home besides securing the inviolable peace of every individual life which is a basic and fundamental right of every human being.
With the Union Cabinet clearing the Marriage Law Amendments, the debate is kicked up all over the country and different viewpoints are emerging. Media has started giving one line analysis like ‘divorce made easy’, reflecting views of need to secure the institution of family while others strongly felt divorces should not be encouraged to prevent westernization of family.
There is only one way to get easy divorce; both couples filing a joint petition pleading for decree of divorce based on mutual consent. At present, a petition for grant of a decree of divorce on the ground of mutual consent could be presented by both the parties to the marriage together before the court under sub-section (1) of section 13B of the Hindu Marriage Act, 1955 and similarly under sub-section (1) of section 28 of the Special Marriage Act, 1954.
Section 13B Hindu Marriage Act provided for divorce by mutual consent. Subsection (1) provided both the parties to the marriage can file a petition together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. Then subsection 2 of 13B provided “On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in themeantime”. This means divorce by mutual consent cannot be filed without living separately for one year. Six months after filing first petition, they have to be present before the court and reaffirm their agreement to separate. They can withdraw this petition before six months or even after that. If their representation to the court is convincing and after making such inquiry as it thinks fit and ascertaining that a marriage has been solemnized between them that their averments in the petition are true, the court can pass a decree of divorce declaring the marriage to be dissolved with effect from that date of the decree. Eighteen months after the first petition, the spouses are not expected to appear. The petition becomes waste or they are expected to convince the reasons for delay in reappearing before the court after first petition for divorce by mutual consent.
This means that a married couple who discovered that they cannot live together, they still have to live separately for one year, thereafter submit a joint petition disclosing their joint decision to separate, wait for six months and then again appear before the court and reaffirm their decision. Though it appears complex and time consuming, this is the only easy mechanism the Hindu Marriage Act provided for divorcing. By any other means, it is not possible to get divorce when one spouses opposes the other, or divorce could be realized only after a couple of decades if the opposing party could spend to take it up to Supreme Court.
On Marriage reforms
It is heartening to see that finally “Irretrievable breakdown of Marriage” is about to be incorporated as an additional ground for seeking divorce in the Hindu Marriage Act as it was with great effort, during my stint as chairman of the Law commission of India, we put across the need and necessity of such an amendment before the Government of India. The amendment was necessitated by the fact that it was cruel to keep warring spouses together just by the force of law in the name of sanctity of the institution of marriage. This amendment was needed in the public interest.
The statement of objectives and reasons for this bill drafted in 2010 and introduced by the then Law Minister M. Veerappa Moily stated: “It has been observed that in several cases one of the parties do not turn up for filing the motion jointly with the other party leading the party desirous of obtaining a decree of divorce hapless and remediless. In order to mitigate such hardships and to allow divorce in cases of complete failure of such marriages, it is proposed to remove this six months clause, and act on the initial petition itself”. If the law allows one party to harass the other by not appearing six months after presenting joint petition for divorce, the negotiated gain will be lost. Deleting the six months waiting period is justified.
The Parliamentary Standing Committee headed by M.P. Jayanti Natarajan recommended retention of six months based on the need to protect institution of family. And the Cabinet, withoutunderstanding ground realities, decided to alter the provisions of Bill to leave the issue to be decided by the courts. Once it is left to court to decide whether there should be six months or less as waiting period, spouses have to wait for years to hear finally anything on that. Judicial examination of separation petition is certainly required. For divorce, law provided several grounds such as one party had voluntary sexual intercourse with any person other than spouse, treated the petitioner with cruelty, deserted for continuous period of two years before filing petition, ceased to be a Hindu by conversion, has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably expected to live with the respondent, has suffering from virulent and incurable form of leprosy or venereal disease in a communicable form, has renounced the world by entering any religious order or has not been heard of as being alive for a period of seven years or more. In the absence of any of these grounds or where it is difficult to prove, divorce is impossible.
The law makers are not moving as fast as the family conditions demand. When in 1976 this provision of divorce by mutual consent was introduced with so many safeguards and limitations, there was a serious opposition based on the apprehension that the institution of family will be destroyed and easy divorces will westernize the educated people leading to materialization of the society. However, making divorce difficult will frustrate the couples and might lead to other crimes include misuse of 498A or suicide. Law makers have responsibility to secure domestic peace and prevent misuse of other provisions. Attempt to make divorce by mutual consent much easier thus, has been failed by the Parliamentary Standing Committee and the Union Cabinet.
" It appears that the approval by cabinet of including "irretrievable breakdown of marriage" as a ground for seeking divorce in section 13 of the HMA is nothing but globalization knocking at the doors of just notIndian economy but also the sacred institution of Indian Family. Ground for annulling marriage like the present one is a part of western culture and society which fully understands it . But it is alien to our society and culture. I think that what we are doing is simply aping western society without giving much thought to our values and social milieu. Instead what I suggest is that before any such amendment is to be brought about then we must first do an impact assessment of such a proposal not just in economic but social terms as well. The proposed amendment is devoid of any safeguard for children and also does not provide for adequate ADR mechanism. So it is suggested that not only impact assessment but also adequate protection to children must be thought about before going on for such amendments having the potential to tear our social fabric apart."
It is a long journey of a bill since 1981. The three decades old bill seeking to introduce the ‘irretrievable breakdown’ of relations as a new ground for seeking divorce under Hindu Marriage Act, 1955 and Special Marriage Act, 1955. The Marriage Law Amendment Bill 2010 recently cleared by the Cabinet is raising several ‘life’ and ‘justice’ issues with relation to marriage and divorce along with its severe aftereffects.
Though it was neither part of Hindu Marriage Act or Special Marriage Act, the higher judiciary recognized irretrievable breakdown as sufficient reason for snapping marital relation when it finds no scope of reunion. Without looking into other averred facts and circumstances the courts have granted divorce only on glaring fact of separate living during the long pendency of litigation between spouses one asking for divorce and other persistently opposing it. The apex court was justified in separating them. The bill rightly proposed this ground as part of law,because some courts refused to separate citing lack of this as a stipulated ground in the enactments.
The Law Commission in its 71st Report in April, 1978 and again in its 217th report in 2009 had examined the issue in detail and recommended amendments to make irretrievable breakdown of marriage as a new ground for granting a decree of divorce. Accordingly, a Bill to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, was introduced in LokSabha in 1981. Thus, there is nothing new in this bill. Unfortunately the Government did not pursue it in the last three decades. Supreme Court in Ms.JordenDiengdeh vs. S.S. Chopra (AIR 1985 SC 935) had pointed out the necessity to introduce this ground. Similarly in Naveen Kohli vs. NeeluKohli (AIR 2006 SC 1675) the apex court reiterated this need.
Proposed Section 13C (2) says the court hearing a petition shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three yearsimmediately preceding the presentation of the petition. Now breakdown means living separate for a minimum of three years, which includes intermittent small reunions not exceeding three months in all.
In section 13C (5) living separate is explained as “a husband and wife shall be treated as living apart unless they are living with each other in the same household, and reference in this section to the parties to a marriage living with each other shall be construed as reference to their living with each other in the same household”.
Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 13C, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage. But the husband cannot oppose if his wife seeks divorce on irretrievable breakdown under this section. Besides, there is a duty caste upon the court to see whether maintenance of wife and children are adequately provided before the divorce is granted for this reason. Section 13E says that the court shall not pass a decree of divorce under section 13C unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.
The Children include (a) minors;(b) unmarried or widowed daughters who have not the financial resources to support themselves; and(c) children who, because of special condition of their physical or mental health, need looking after and do not have the financial resources to support themselves, as per proposed section 13E.
The committee wanted giving rights to adopted children on par with biological off-springs if a couple seeks divorce. The bill speaks for children born out of marriage only. Generally, the adopted children are treated on par with the biological children. Thus if a couple has an adopted child, it is their responsibility to provide enough financial assistance for his maintenance at the time of divorce.
The Parliamentary Standing Committee found that the “matrimonial property” should be properly defined. Provisions for all the ornaments and other cash/ goods that the wife received for the marriage as gifts shall be returned to the husband in the event of divorce. Provisions for all the ornaments and other cash/ goods that the wife received for the marriage as gifts shall be returned to the husband in the event of divorce. If property like flat, land etc. is purchased with husband’s money, ownership of same should be granted to the husband. In case wife has contributed for same out of her earnings, joint ownership must be granted by the court, proportional to investment. Also the benefits under any insurance policy including health insurance should be decided proportional to investment.
In the West it was described as “community of property,” she said. This definition was needed as women contributed to a home through their care, while the men bought assets with their income. The Committee wanted the Bill to provide for an effective legal mechanism for a fair and equitable division of property, so that women got their due share. But that was not part of the Bill.
A substantial change proposed (not in this Bill) by women empowering group of Planning Commission is giving a share to wife in the matrimonial property while departing from the marital home. The right of wife to property or share in the husband’s estate is not provided so far in any law. Wife gets a share only after the death of her husband as a successor on par with sons and daughters.
Today with the complexity of law and involvement of clever lawyers and unassuming judiciary, divorce is either a dream or a nightmare of any personality. It takes decades to end the marital dispute. With prefixed bias in predetermined minds it may not be possible for judges, who are also part of this society reflecting same vices and virtues, to decide objectively. Leaving out everything to the discretion of courts will again result in severe trauma of trials for the disputing spouses.
Initiated with the aim of facilitating easy divorce, the amendments finally landed the spouses in some more complexities and exposed them to vagaries of changing opinion. Law should not leave so many things to be decided by the court creating hardships both to courts and the spouses. Enactment should be specific and certain, not ambiguous, on such vital aspects of marriage law.
Those who say family shall be protected as an institution need to realize that it should not mean violation of individual rights and autonomy of a spouse in totality. Responsibility of protecting family as an institution lies both on wife and husband who should not torture or tolerate the torture or domestic violence. Those who advocate against use of 498A should also realize that denying a remedy at the stage of torture would necessarily lead to dowry death or murder of spouse for another reason. Without understanding reality of incompatibility and broken down relations,forcing a couple to live together is atrocious and would lead to further violence and that can never be treated as ‘protecting the family’. Facilitating divorce is the best way of avoiding 498A crimes, dowry deaths or gruesome murders by spouses as happening now day in and day out. If a sparring couple is allowed to separate in a reasonable period of time, they will settle with other partners and two peaceful families will come into existence, if not, there is a lurking danger of one spouse killing the other. It is not just a question of physical strength or gender discrimination, but an opportunity that decides life of a person. If a difficulty is not addressed it will return as a crisis.
Taking into consideration the present possibility of one spouse harassing divorce seeking partner with vengeance by dragging her up to the Supreme Court, the bill tried to facilitate the wife’s plea on grounds of irretrievable breakdown. But the allegation of continuous separation, financial hardship, adequacy of maintenance are subject matters of judicial opinion based on quality of proof, which will make spouses to be bogged down by dragging procedures, delays and appeals that mean there is absolutely no change in the situation. Unless there is a definite time frame and quick finality to marital dispute, these delayed, half-hearted and fragmented changes cannot be considered as ‘reforms’. Three years of living apart is ‘irretrievable breakdown’, but thirty years of delay in getting change in law is pathetically a legislative ‘breakdown’. And couples waiting years for separation in the corridors of courts broke down several times even as they could not break down the marriage. With these difficulties in law, the wedlock becomes a physical lock without a key. Are we really reforming marriage law?
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