NATIONAL LEGAL RESEARCH DESK – A Shakti Vahini Research Initiative
Amends the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
The Marriage Laws (Amendment) Bill, 2010 was introduced in the Lok Sabha on August 4, 2010 by the Minister of Law and Justice, Shri M. Veerappa Moily. The Bill was referred to the Standing Committee on Personnel, Public Grievances, Law and Justice, which was scheduled to submit its report within two months. The Committee has granted time to submit the report till January 31, 2011.
The Bill amends the Hindu Marriage Act, 1955 which codifies the law relating to marriage among Hindus and the Special Marriage Act, 1954 that provides for special form of marriage in certain cases.
Both Acts allow a petition for grant of divorce on the ground of mutual consent. This petition has to be presented by both parties together before the court. The Bill deletes this requirement allowing one party to the marriage to present the petition.
The Bill adds a provision to both Acts that allows both parties to file for divorce on the ground of irretrievable breakdown of marriage. Both parties have to live apart for at least three years before filing for such a petition.
The wife has the right to oppose the grant of a divorce on the ground that the dissolution shall result in grave financial hardship. The court shall consider all circumstances including conduct of parties, children before deciding whether a divorce would result in hardship. Also, court has to be satisfied that adequate financial provision has been made for any children (including unmarried or widowed daughters).
Standing Committee Report Summary
The Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice submitted its 45th Report on ‘The Marriage Laws (Amendment) Bill, 2010’ on March 1, 2011. The Chairperson was Shrimati Jayanthi Natarajan.
The Bill seeks to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 to (a) provide for irretrievable breakdown of marriage as a new ground for divorce; (b) provide certain safeguards to protect the interests of the wife and children; and (c) remove the six months waiting period for moving a joint petition for grant of divorce by mutual consent.
The Committee was in agreement with the broad objective that ‘irretrievable breakdown of marriage’ should be introduced as new ground for granting a divorce. However, the Committee felt that there are certain important social and legal issues that need to be addressed before introducing this new ground of divorce.
The Bill proposes to remove the six month waiting period required before moving a joint motion in case of divorce by mutual consent. The Committee was of the view that there is no connection between the proposed amendment and the main objective of the Bill. Therefore, the existing waiting period should be retained in order to protect the institution of marriage.
The Committee was of the opinion that the Bill should provide additional safeguards in order to prevent the misuse of the new ground of divorce. The Committee also recommended that the term ‘irretrievable breakdown of marriage’ should be defined
Under the proposed Bill, the wife has been given a right to oppose the grant of divorce on the ground that would result in ‘grave financial hardship’ to her. The Committee noted that the said term was ambiguous and capable of different interpretations. It therefore, recommended that the term ‘grave financial hardship’ should be defined. It further recommended that there should a review of the provisions of these provisions of the Bill to protect the interests of women in divorce proceedings.
As per the proposed Bill, the court before granting the divorce has to satisfy itself that adequate provisions has been made for maintenance of ‘children born out of marriage’. The Committee opined that this provision could exclude ‘adopted children’ and therefore, the government should clarify the position regarding adopted children.
The Committee recommended that the government should make adequate provisions in the matrimonial laws to ensure that the courts at that at the time of divorce decide upon the women their share in the matrimonial property, to which they have contributed during the marriage.
The Committee despite being in agreement with the main objective of the Bill felt that the some of the provisions could be misused against women. It recommended that the government should reconsider the various clauses of the Bill in view of the Committee’s apprehensions and introduce a revised comprehensive bill.
It seeks to make irretrievable breakdown of marriage a ground for divorce
The All India Democratic Women’s Association has expressed unhappiness over the Marriage Laws (Amendment) Bill, 2010 and the amendments made to it, as reintroduced in the Rajya Sabha on Monday, that make irretrievable breakdown of marriage a ground for divorce, giving women the right to marital assets, including the marital home. However, there is no provision for strengthening maintenance laws.
In its letter, the AIDWA has appealed to Rajya Sabha members to prevent the “perpetration of injustice against women by the highest law making body of our country, and to oppose the law in its present form” as there was no move to strengthen maintenance laws.
The amendment seeks to make irretrievable breakdown of marriage a ground for divorce, and proposes that the court may give the wife a share in the property acquired during the subsistence of marriage.
‘Unequal treatment ‘
Unfortunately, whether a share should be given at all and the quantum of the share in marital property is left to be decided by the courts on a case to case basis. “Our experience in the courts has shown that a large number of courts have been very conservative and close-fisted about granting maintenance for wives and children and have awarded dismal sums. These courts have obviously acted with a bias towards women and have treated them unequally. When women approach the courts for maintenance, they are awarded sums that may normally range between 5 and 35 per cent approximately of the man’s income, even if there are children to be supported,” the statement said.
Short of requirement
The courts’ evaluation of what constitutes adequate maintenance frequently falls far short of what women and children require even to survive in a dignified manner. Thus, allowing the courts to decide on a share in the marital property is no guarantee that the wife will receive her just entitlements, the statement said.
In countries where irretrievable breakdown of marriage has been introduced as a ground for divorce, laws relating to an equitable division of all marital assets also exist. This is because the contribution of a woman in building up the household and in primarily taking care of children is recognised and considered to be as economically valuable as work outside the house. Unless women are treated as equals in a marriage and given the same financial and other security that men have on its breakdown, it would be discriminatory to further liberalise the grounds of divorce.
Equal part in property
The AIDWA demands that the amendments be introduced only after a law has been enacted for giving women equal rights in marital property. This law should allow for equal division of the marital property upon separation and not merely on divorce. A provision should also be made for women and children to get more than half the share if the children are living with their mother. The laws relating to maintenance for women and children must be strengthened to ensure that women/children receive an adequate amount of maintenance.
Source: PRS LEGISLATIVE