Marriage is a part and parcel of a civilised society. However, in the fast changing society and its values, marriage related laws also need amendments to keep pace with the transforming society
The Hindu Marriage Act, 1955 (the Act) is a progressive legislation because it keeps pace with the social and societal developments and incorporates the changed notions and perceptions by bringing an amendment in the required provisions. It has been amended seven times. Even the Supreme Court in its various judgments has highlighted the deficiencies in the Act and has suggested to legislature to intervene and make the necessary amendments to the Act to remove those deficiencies.
Child marriage is a valid marriage under the Act, though it is punishable. The legislature has enacted the Prohibition of Child Marriage Act, 2006 (PCMA), which makes the child marriage voidable at the option of the contracting party, who was a child at the time of the marriage. The PCMA also makes child marriage void under certain circumstances.
The punitive section of the Act has been amended by enhancing punishment for child marriage from simple imprisonment, which may extend to fifteen days or with fine and may extend to one thousand rupees, or with both ‘to’ with rigorous imprisonment, which may extend to two years or with fine and may extend to one lakh rupees, or with both. However, no amendment has been made to other sections of the Act, which deal with voidable marriages; even those sections require to be amended.
Need for a Uniform Civil Code, under Article 44 of the Constitution of India, has been asserted time and again by the Supreme Court in various judgments. The Supreme Court has suggested to the Government of India to have a fresh look at Article 44 of the Constitution and an endeavour to secure a uniform civil code for the citizens of India throughout the territory of India, as it will help the cause of national integration by removing the contradictions based on ideologies.
“The Hindu Marriage Act, 1955 has some inherent inadequacies that need to be corrected. In today’s world, where there is an intent to blur gender bias, there are many sections in the Act which are gender specific. Thus, first key change is required to replace the word husband or wife with spouse. Secondly, the divorce clauses provided in the Act have extremely strong wordings like mental cruelty leading to spouse (particularly wives) making wild allegations against their counterparts with no basis in reality. That needs to be taken care of. Instead, the term ‘unreasonable behaviour’ could be used. No fault divorce should be incorporated, as courts cannot deliver any end to justice by denying a person, who feels distressed in current marriage from pursuing peace in another. The process of divorce by mutual consent should be simplified by making use of tele-presence technology, or asynchronous evidences of consent in the consulate or outstation-courts to prevent unnecessary wastage of time of litigants in travel.”
The Act provides for registration of marriages, but registration is not compulsory. State governments are empowered to make registration compulsory in their states or part thereof. The purpose for registration of marriages is facilitating the proof of Hindu marriages. The compulsory registration could be instrumental in ceasing the evil of bigamy and child marriages.
Irretrievable breakdown of marriage as a ground of divorce is partially recognised in sub-section (1-A) of section 13 of the Act, which was incorporated by the Amendment Act 44 of 1964. Divorce should be allowed, where there is a breakdown of the marriage. It is futile in such cases to enquire as to which party is at fault.
A law of divorce, based mainly on the fault, is inadequate to deal with a broken marriage. Under the fault theory, the guilt has to be proved. Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact and it would be harmful to society and injurious to the interest of the parties. Living apart signifies the disruption of the essence of marriage and its long continuance would indicate disruption of the marriage itself. And there is no sense in allowing the marriage to survive when the marriage itself loses its essence for both the spouses.
71st Report of the Law Commission of India also suggested that irretrievable breakdown of marriage should be made a ground of divorce.
The courts in India have invariably suggested (and at times subtly applied, taking shelter of fault grounds) incorporating irretrievable breakdown of marriage as a ground for divorce.
Section 22 provides that the matrimonial proceedings shall be conducted in camera. The section makes it unlawful for any person to print or publish any matter in relation to any such proceeding, except a judgment of the high court or of the Supreme Court printed or published with the previous permission of the court. A contravention of this section is punishable with fine which may extend to one thousand rupees. The amount of Rs 1000 as fine is too low a fine to act as a deterrent. This needs to be enhanced.
Neeru Nakra Associate Professor, VIPS, affiliated to IP University
Nothing is constant but change. Law is a dynamic concept and keeps changing to cater to the needs of changing times and values. Marriage is regarded as a social institution. Despite rapid changes in societal norms, leading to the recognition of homosexuality and granting compensation in live-in relationships with no social and legal sanction, the institution of marriage is there to stay.
The Hindu Marriage Act, 1955 (the Act) has established monogamy as a rule thereby giving sanctity to a relationship, which is based on trust. Even if this Act is more than 50 years old but in our society, marital obligations have remained the same. Although this eternal bond has lost its eternity by introducing various grounds of divorce, yet the institution of marriage has not lost its sanctity.
The debate is to make irretrievable breakdown of marriage as a ground of divorce. In my opinion, the Hindu Marriage Act provides u/s 13(1-A), the ground for conditional filing of petition for divorce for the noncompliance with the decree of restitution of conjugal rights, or compliance with the decree of judicial separation under the Act. The term provided for the compliance is one year. Here the term should be extended from one to two years and after that, marriage should be dissolved by the court on the ground that marriage has gone beyond repair and nothing could be gained breathing back life into a dead marriage.
If irretrievable breakdown of marriage were made a ground of divorce without stringent fetters, then it would likely to be misused more. Moreover, I have firm belief in uniform civil code to be brought in, as it is high time that we start thinking for ‘common’ and not ‘communal’. I know that it is a Herculean task but every long way starts with a single step. I would like to quote here my learned friend Prof Shyam Kaushik’s that if we think about a principle irrespective of the consequences, then it would be an easier task to bring about uniformity in laws.
In any proceeding under this Act, the court may make such provisions in the decree, as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife. However, there is no provision in the Act for disposal of property, which belongs to them individually. Since both part their ways after the decree, the enactment should also regulate the disposal of their individual properties.
Further, the order under the relevant section can be made only while passing the decree on any substantial relief. Once the decree is passed, the relief cannot be obtained or if no substantive relief is prayed for, there should still be provision for presenting an application for disposal of property by either spouse, if need be.
The suggested changes will complement the matrimonial laws with the social and societal changes. Legislature enacted the Hindu Marriage Act in 1955 and it was far ahead of the acceptable social norms of that time. At that time, marriage was considered an indissoluble union but still legislature recognised the concepts of judicial separation, divorce and abolition of bigamy, which were more of exceptions at that time. However, today after more than fifty years of the enactment, the society has transformed and the Act needs to be revamped to match the metamorphosis of society.
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