irretrievable breakdown of marriage

it is fact that irretrievable breakdown of marriage is not a ground for marriage under the hindu marriage act.

the concerned judge done a blunder and should be sacked.

in a recent judgement the sc decleared that only sc can sanction / provide irretrievable breakdown of marriage as a ground for divorce under art 142 of the coi.

it is another case of judge's calousness / carelessness.

do not relay or much hope on government's activity in this respect. matter not yet clear. text not available.

furthermore govt works under tremendous pressure. therefore i am not much hopefull about it.

1. Could you scan the Decree Sheet (Judgment final) of Family Court and Personal Mail Message me please as I want to study the "reasoning" part the Family Court has based its Decree on
Thanking you for above
D. Arun Kumar, New Delhi, ishqindia@gmail.com

ADV PRABHAKAR,

ARE YOU SURE ABOUT THE FOLLOWING

"recent proposed amendment, as read in news papers, is only in Section 13-B and not in Section 13 and hence, will not be applicable in your case."

IT WAS MY DOUBT.

 

HELLOW ARUN JI,

HOW ARE YOU? NOT SEEN YOUR POSTINGS LONG BACK. PLEASE GO ON THE FOLLOWING MATTER AND TELL ABOUT YOUR FINDINGS.

I BELIEVE THAT DIVORCE IS A PERSONAL LIBERTY AS THE MARRIAGE IS.

NOTHING CAN COMPLE ONE TO RESUME A MATRIMONY, WHICH IS ALREADY LOST.

MEDIA REPORTING THAT - 'IRRITRIVIABLE BREAKDOWN OF MARRIAGE' IS GOING TO BE ADD AS A GROUND FOR DIVORCE.

BUT I AM IN DOUBT OF IT.  BECAUSE THE MAIN FOCUS OF THE NEWS IS ON, - SEC 13B IE MUTUAL DIVORCE, AND NOT IRRITRIVIABLE BREAKDOWN OF MARRIAGE.

HERE I WANT TO DRAW THE KIND ATTENTION OF THE MEMBERS THAT, -

SMT SHRUTI SHINDE, WHO IS DAUGHTER OF  THE CABINET MINISTER AND TOP LEADER OF MAHARASHTRA CONGRESS, MR SUSHIL SHINDE IS BEING REFUSED BY THE COURT FOR MUTUAL DIVORCE - AFTER REFUSING MUTUAL DIVORCE BY HER HUSBAND.

ON THE OTHER WAY, AS THE HUSBAND OF SHRUTI, -  REFUSED SHRUTI - FOR MUTUAL DIVORCE, THE COURT REFUSED SHRUTI FOR MUTUAL DIVORCE.

I AM AFFRAID / ANXIOUS THAT TO REACH THE BENIFIT TO THIS PARTY, THE PRESENT AMMENDMENT GOING TO BE MADE, AND NOT FOR A GENERAL CAUSE OF PEOPLE'S HARASMENT ON MATRIMONY. THEREFORE 'IRRITRIVIABLE BREAKDOWN OF MARRIAGE' MAY NOT BE ADD AS A GROUND FOR DIVORCE OR IF ADDED – IT ADD IN SUCH A MANNER THAT COMMON PEOPLE, HAVING NO HIGH APPROACH, CAN NOT GET –

‘JUST’  ON MATTER.

THAT'S WHY the TEXT ON THE MATTER IS ABSOLUTELY NECESSIRY AT THIS JUNCTURE.

Arup ji, pitting me against such stalwarts as Sh Prabhakar and companion ld. luminaries here is not productive challenge thrown open to me in public platform. However, since you called me in the ring so here are common man's voice reproduced with permission from common people of this country.

 

We the common man call your call for debate just; 

 

"A Fraud Called "Divorce on the grounds of Irretrievable Breakdown of Marriage"

 

People who have seen the news coverage on Cabinet approval of adding 'irretrievable breakdown of marriage' as a ground for divorce in Hindu Marriage Act, 1955 and Special Marriage Act, 1954 are a confused lot.

 

What does it mean to a common man?  

 

- When can a person file a petition for divorce on this ground?

- Can parties use it when already some activity under HMA still ive in various Courts?

- Is it can apply retrospectively? How can relief be sought? These are some of the questions a common man here is searching the answers for.

 

Legally speaking as a common man, “irretrievable breakdown of marriage” is defined as: “The situation that exists when either or both spouses are no longer able or willing to live with each other, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties.”

 

In this direction, the Law Commission, in its Seventy First Report which was submitted in April, 1978, strongly recommended to introduce irretrievable breakdown of marriage as a ground for divorce. This was in addition to the already available grounds of divorce - ground of fault and mutual consent. The wisdom behind such an amendment, as contemplated was, when a party to the marriage is not at fault, falling in the subsection, nor staying together and further frustrating the other party's efforts to come to a mutual agreeable terms to end the marriage, a divorce on this ground can be sought. The said report recommended detailed guidelines by way of introduction of sections 13 (C), 13 (D), 13 (E) in the Hindu Marriage Act, 1955 and necessary amendments in section 21 (A) and 23 as well. The idea behind the same was that once a divorce is sought on the grounds of irretrievable breakdown of marriage, other conditions like fault of one party be regarded as irrelevant.

 

In 1981, a Bill was introduced to give effect to "irretrievable breakdown of marriage" as a ground for divorce, but the legislature in its wisdom did not accept the same, as it was apprehended that unscrupulous people, mainly husbands would desert their wives and take advantage of this provision. A point to be noted here is that section 13 (D) and 13 (E) as contemplated by Law Commission made it clear that a wife can oppose such a petition on the ground that it would result in financial hardship for her, and it made it binding on the court to see that adequate arrangement for welfare of children and wife be made while a decree of divorce be granted on this ground. Despite the same the legislature did not find fit to accept the report and the same was rejected.

 

The social fabric of India has undergone a lot of changes during the last Thirty Two years. And from time to time the courts have refused to grant divorce on this ground in the cases of Asha v. Krishna Lal (1990 Del.1), Smita Dilip Rane Vs. Dilip Dattaram Rane (AIR 1990 Bom. 84), Suresh Prasad Sharma Vs. Rambai Sharma [1 (1999) DMC311(MP)]. On the contrary, the apex court has dissolved the marriage on this very ground in V. Bhagat v. D. Bhagat (AIR 1994 SC 710),  Chandralekha Trivedi Vs. S.P. Trivedi [(1993) 4 SCC 232], Naveen Kohli v. Neelu Kohli [2006(3) SCALE 252]. The case of Naveen Kohli Vs Neelu Kohli is of great importance because by way of this Judgment, the Hon'ble Supreme Court had recommended an amendment in the Hindu Marriage Act, 1955 stating that there can be a great number of cases, where the marriage is virtually dead but parties can not seek divorce on the ground of irretrievable breakdown of marriage as such a ground does not exist in Hindu Marriage Act.

 

As in the case of recommendation of Law Commission of 1978, this suggestion also fell on deaf ears and despite Law Commission again recommending the same in it's 217th report in March 2009, no progress took place until recently.

 

It all changed on Dec. 16, 2009, when Smriti Shinde, the daughter of indomitable Union Power Minister Sushil Kumat Shinde, challenged the existing grounds of divorce in Hindu Marriage Act, 1955 by way of Writ Petition. Brief facts leading to this writ are that she had filed a case along with her husband for dissolving their marriage by way of mutual consent in May 2007 and was granted divorce even when the husband never turned up before the trial court. The Bombay High Court set

the same decree aside holding that non-appearance of the husband showed that his consent did not continue. The Supreme Court also held the same view and dismissed her appeal. A news report published in newspapers on the next day stated that another powerful political face Supriya Sule was also present at the time of filing this petition, which can be construed as the support of Agriculture Minister Sharad Pawar in the same.

 

Cut to present day, barely a year after the Government of India deciding against the recommendation of 217th report of Law Commission, the cabinet has given nod to the changes in provisions in Hindu Marriage Act, 1955. The way in which the same would be implemented is still not sure, but what Information and Broadcasting Minister Ambika Soni stated to the media about this law raises some questions, the verbatim quote as printed in media states, “This would provide safeguards to parties who file petitions for grant of divorce by mutual consent but who willfully avoid coming to court thus causing harassment to the other party."

 

Well I am a layman, contesting my own divorce suit in Delhi as filed by my wife, but I have gone through the Seventy First Report as well as Two Hundred and Seventeenth Report of Law Commission. Both reports don't find mention of such pre-condition as parties filing petition for grant of divorce by mutual consent but who willfully avoid coming to court.

 

The statement coupled with other facts makes a common man like me me question the very genuineness of such an Amendment !

 

Pertinent Que. 1: What was the hurry to implement the recommendation of making "Irretrievable Breakdown of Marriage" as ground of divorce, when the same government had not heeded to

the same in recent past.

 

Pertinent Que. 2: Is the Government trying to play foul by playing with the recommendations of Law Commission and adding irrelevant conditions to it because such a condition fits in Smriti Shinde’s case?

 

Pertinent Que. 3: If such irrelevant conditions are added, it would only benefit unscrupulous, powerful and mighty, who can obtain first consent by way of fraud or coercion. One should not forget that the legislature in its wisdom while adding section 13(B) in Hindu Marriage Act, 1955, made a provision that consent can be withdrawn after filing first motion. And for the same a statutory cool-off period of six months was given.

 

If, such a pre-condition is added to irretrievable breakdown of marriage ground, it would defeat the very purpose the Section 13(B) of Hindu Marriage Act, 1955 was legislated.

 

So what is left before common man consumption here? Confusion + interpretation as Lordship may please in his own way throwing the Law Books and Amendments to your pleasure! OR Indian divorce is within reach only to some sections of society and is not meant for common man?

 

Illustration:

My wife deserted me in 2002 with our minor child then 2 years old. I tried all my ways to bring them back till 2004 and when all efforts failed I filed for divorce in 2004 which was contested left and right by her. She even got maint. being working lady which she hid before court which I discovered now and filed fraud complaint. Come May 2006 she took a 180 degree turn and said she will join matrimonial home. I welcomed her with child mind it I never had any conjugal relations since 2002 but still I welcomed her back. They next stayed for just 3 months in matrimonial home and in Aug. 2006 deserted me again with child and no time was left this time and in Aug. 2006 she files for divorce using S. 13 (1) (ia) (ib) (desertion my foot?) and read with S. 24 HMA + S. 125 CrPC. Both matters are still sub judice at various trial courts in Delhi. Meanwhile in early 2008 we filed S. 13 B joint petition seeking MCD. At the time of making first statement she literally told court that she needs time to even make her first statement that also after signing joint affidavit and joint MoU !. Court gave her “cooling period” n I waited for next 12 months for her to make up her mind. Then I though she has already filed for divorce that means she wants divorce so I asked Court to intervene and requested trial court to ask her on making first statement this happened after 12 months of filing jointly S. 13 B HMA. Was I wrong asking Court help after 12 months that also in a MCD ? The trial Court showed its helplessness and asked me to ask my wife in open Court what she wants!. I smiled and then and there withdraw "unilaterally" my consent from that joint petition under S. 13 B HMA. Court happily obliged and passed an Order saying “dismissed as withdrawn” our joint S. 13 B HMA. Well the facts don't end here, pops a SC Judgment just after my unilateral withdrawal i.e. after 1 month of my unilateral withdrawal from S. 13 B, wherein SC says "unilateral withdrawal in S. 13 B is not allowed"? Funny I say why because after this judgment my withdrawal above should have been challenged by my wife's side (since she also wants divorce) but nothing like this happened till date means now it is June 2010. Even in that Judgment SC says that Trial Court is duty bound to "ask parties on their consent" on S. 13 B which the trial court in my case never even bothered to ask instead asked me to ask my wife in open Court what she wants! I still say funny the Indian Matrimonial Law's are and they are nothing but made by asses for asses and not for common man. All these happened in 2008. Now in 2009 I file S. 23 A HMA which is nothing but alternate relief in a divorce proceeding for respondent in any HMA activity and asked court to grant divorce to parties and I also said I am not agreeing / accepting to mental cruelties she alleged in her S. 13 HMA petition and said she also wants divorce so I say give us divorce since I donot have any objection to her asking divorce from me. Mind it till date S. 24 HMA nor S. 125 CrPC interim is even decided. Well trial Court is contemplating since early 2010 what to do and now it is June 2010. If all these were not enough between us then in Aug. 2009 wife files for DVA and copies the entire DVA The Act into her private complaint directly before MM in Delhi and the DIR is self signed and self prepared and is not even made by any PO / NGO / Service Provider and the entire plaint is not even in Rule 6 Form II format and she asks for all relief’s therein from that Act :-) I say does DVA apply retrospectively bze my wife left me in 2002? Delhi's Sessions court quotes the recent Smt Bhanote Order of Mr Justice Jain and kicks me out and asks me to go to trial Court and vent my fart there. Well I climb up an go to HC and I say there that SC has stayed all proceedings in Abhisehsk Gupta's SLP bze that case was filed to clarify stand of SC on retrospective and prospective application of Law, Hon'ble HC Delhi also kicks my writ and says they are helpless go to SC and file SLP and take stay from there. I say OK I will go there also don't worry it is my full time job now as a common man to go from one court to another as I'm not Mrs. Shinde or some high profile litigant so there is no Laws for common man any how my marriage is irretrievable breakdown of marriage which I think so not the Court so what is the big deal for a common man like me I am not alone here J  

 

Further the que. to you Sir is now this "irretrievable breakdown of marriage" ground has also received legislative ascent so what is going to be fate of "common man" is the mute question behind such lengthy analogy of such false Laws of the land which are made only for the wealthy and powerful people and not meant to be used by common man ??????

 

At the end I thank my good friend Shoonee for his above comments on recent legislative wisdom and add I have nothing for or against Mrs Shinde or all living people I have quoted here and I am responsible for my honest comment being “just a common man” so if any of you readers intent to file defamation case on me then I will welcome that "phase" of litigation too atleast I will brush up defamation Laws too on the go other than being full time un employed legally without a divorce decree in hand J

 Sh. Arup ji, FYI

Click https://164.100.47.4/NewBios_search/Default.aspx

Ministry in Charge of the Bill is Ministry of Law and Justice

The Text of the Bill is at

https://164.100.24.219/BillsTexts/RSBillTexts/asintroduced/Marrge%20XXIII%20of%2010.pdf

Currently there seems to be some problem with the Site server. I am unable to open the pdf file :-(

This media report gives some clarity on the issue:- 
 
A husband or wife must show that "they have separated and the separation has continued for a sufficient length of time and one of them has presented a petition of divorce" before taking recourse to the breakdown theory.
 
 
Finally, a law to deal with dead marriages
TNN, Jun 14, 2010
 
Relationships between individuals depend largely on trust, respect and love for each other. Matrimonial relationships are more complex. For, they involve delicate human and emotional traits coupled with an intrinsic need for adjustment. Amid these complexities, both must also have breathing space to preserve their own individuality.
 

Realising that these complexities could impact on husband-wife relations, the Hindu Marriage Act, 1955, had made room for divorce if both or one of them realized that they were caged in a marital bond and it was better to quit then suffer. Section 13 of the act provided a long list of grounds for divorce given the complexities of human nature. One could seek divorce on the following grounds: adultery, conversion from Hinduism to another religion, unsoundness of mind, suffering from venereal or virulent diseases in communicable form for three continuous years, renouncing the world, missing for seven years or more, and no cohabitation for two years.
 

In addition, it entitled a woman to divorce if the husband was found to be guilty of marrying again or having a wife prior to marriage and if the earlier wife was alive; or he was found guilty of rape, sodomy or bestiality after the solemnization of marriage.
 

Despite the elaborate grounds, courts in the last two decades came across cases where a man and woman were living a dead marriage, unable to find a ground to untie the knot, mainly stemming from mental cruelty inflicted by one on the other.
 

The Supreme Court for the first time on January 13, 1995, in Romesh Chander vs Savitri [1995 (2) SCC 7], posed the question whether a marriage which is otherwise dead emotionally and practically should be continued. The problem — irretrievable breakdown of marriage — kept raising its head with frustrating regularity. A 3-judge bench of the apex court, in 2007, dealt with it elaborately in Samar Ghosh vs Jaya Ghosh [2007 (4) SCC 511].

Justice Dalveer Bhandari, the author of the unanimous judgment, examined the worldwide judicial trends starting from the 1864 British case of Prichard vs Prichard, where the court had felt that repeated acts of unprovoked violence by the wife were to be regarded as cruelty, although they might not inflict serious bodily injury on the husband.
 

The irretrievable breakdown of marriage theory was first formulated by the Law Commission of India in its report to the government on April 7, 1978, taking into account a two-decade long problem. This means, the Union Cabinet ratified the need to address the problem after its ill effects on marriage was diagnosed more than 50 years ago. The commission had said, "In case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfilment which they seek.
 

"Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances."

But the breakdown theory, recognized by the commission and the apex court as a solid ground for annulling a marriage, does not give licence to any husband to walk into court seeking divorce claiming that his marriage has broken down irretrievably. The courts examining such pleas must apply the strict scrutiny test, the SC had said in its 2007 judgment.
 

A husband or wife must show that "they have separated and the separation has continued for a sufficient length of time and one of them has presented a petition of divorce" before taking recourse to the breakdown theory. Moreover, the courts faced with such a case "no doubt, should seriously endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld," the SC said, adding, "The consequences of preservation in law of a unworkable marriage, which has long ceased to be effective, are bound to be a source of greater misery for the parties."
 

Source: https://timesofindia.indiatimes.com/india/Finally-a-law-to-deal-with-dead-marriages/articleshow/6044766.cms

The full text of the The Marriage Bill 2010 is reproduced here: AS INTRODUCED IN THE RAJYA SABHA ON THE 3RD MAY, 2010 Bill No. XXIII of 2010 THE MARRIAGE LAW BILL, 2010 A BILL to remove the discrimination between man and woman in the matter of marriage and divorce in the existing laws, to ensure equality between them and confer dignity and humane treatment to women and to strengthen family and for matters connected therewith and incidental thereto. Whereas, article 16 of Universal Declaration of Human Rights requires that every Member State should accord equal treatment to man and woman in the matter of marriage and divorce; And whereas, article 15 of the Constitution of India prohibits discrimination against any citizen on grounds of religion and s*x; And whereas article 44 of the Constitution directs the State to enact uniform civil code which includes uniform law regarding marriage and divorce. BE it enacted by Parliament in the Sixty-first Year of the Republic of India as follows:— Short title,commencement and applicability. 1. (1) This Act may be called the Marriage Law Act, 2010. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. (3) it shall apply to all the citizens of India. Definition 2. In this Act, unless the context otherwise requires, the words and expressions used but not defined herein shall, mutatis mutandis have the same meanings respectively assigned to them in the laws relating to marriage and divorce which are in force at the time of the coming into force of this Act. Restriction on marriage when spouse is alive. 3. (1) No man whose wife is living, shall marry another woman and no woman whose husband is living, shall marry another man except as expressly provided in this Act. (2) Any marriage in contravention of sub-section (1) shall be void and the man or woman who marries in violation of sub-section (1) shall be guilty of the offence and shall be liable to be punished for the offence of adultery under section 494 of the Indian Penal Code, 1860. [45 of 1860] Petition for divorce 4. Subject to the provisions of this Act, and to the rules made thereunder, a petition for divorce may be presented to the District Court or the family court as the case may be, either by the husband or the wife on the ground that his wife or her husband as the case may be:— (a) has after the solemnization of the marriage had voluntary s*xual intercourse with any person other than his or her spouse; or (b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or (c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code, 1860; or (d) has since the solemnization of the marriage treated the petitioner with cruelty; or (e) has been suffering from incurable and communicable disease which makes it unsafe for the spouse to live with him or her; or (f) 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 be reasonably expected to live with the respondent. Explanation.— In this sub-section; (i) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizopherenia, (ii) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including subnormality of intelligence) which results in a abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment. (g) has been suffering from any venereal disease in a communicable form including AIDS; (h) has been suffering from leprosy, the disease not having been contracted from the petitioner; and (i) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent, if the respondent has been alive. Explanation.—In this sub-section, the expression "desertion" means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. Petition for divorce by wife 5. A wife may also present a petition for divorce to the District Court on the ground that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality. Divorce by mutual consent. 6. (1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the District Court by both the parties 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. (2) 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 the meantime, the district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act, and that the averments in the petition are true, pass a decree declaring the marriage be dissolved with effect from the date of the decree. Restriction on presentation of petition for divorce. 7. No petition for divorce shall be presented unless as on the date of the presentation of the petition three years have elapsed from the date of marriage. Second marriage with the permission of the court. 8. Notwithstanding anything contained in this Act, or in any other law for the time being in force:— (1) A man can take a second wife with the consent of his wife and with the permission of the court which could be given on any one or more grounds on which divorce can be granted under section 4 of this Act or on the ground of physical disability caused on account of any accident or any illness or for any reasons whatsoever which renders her unfit for discharging her duties, responsibilities and obligations as the wife. (2) In every petition for divorce presented by the husband under section 4 or for permission to take a second wife under section 9, if the court comes to the conclusion that the petitioner is entitled to the decree of divorce on any one of the grounds on which it could be given under section 4, or permission to take a second wife could be granted under section 8, the court shall in the first instance pass a preliminary decree granting divorce or permission to take a second wife as the case may be. (3) The wife against whom the preliminary decree is passed under section 8, shall be entitled to prefer an appeal against such decree except in cases in which she had given her consent, to the High Court within a period of thirty days from the date of the preliminary decree. (4) It shall, however, be open to the wife not to prefer any appeal against such preliminary decree and to give consent to the husband to take a second wife and if, the wife files such consent before the court within thirty days from the date of the preliminary decree, the Court shall set aside the preliminary decree for divorce and grant permission to the husband to take a second wife. (5) If neither an appeal is filed by the wife to the High Court nor the consent is filed, consenting to the husband taking a second wife within the prescribed period, the Court shall proceed to pass final decree for divorce: Provided that before passing final decree, the Court shall give paramount consideration to the interest of child/children of the petitioner and respondent and shall pass appropriate orders for the protection of their interest in every respect including their health, education and maintenance: Provided further that before passing a decree of divorce or appropriate orders which directly affects the children, the Court shall give notice and opportunity of hearing to the person who is interested in the welfare of the children of the spouse. Permission to take a second wife on the application of the wife. 9. (1) A wife shall be entitled to file a petition before the District Court according permission to her husband to take a second wife only on the ground that she is medically certified as incapable of child bearing or she has been incapacitated for discharging her duties and obligations as required by a wife on account of any accident or any illness or for any reasons whatsoever. (2) the permission under sub-section (1) shall be given by the Court if, the Court is satisfied that the application made, is out of her free will and desire and not on account of any force, fraud or undue influence brought to bear on her by the husband or any one on his behalf. Maintenance allowance. 10. (1) In case, a permission is granted to a man to take a second wife under section 8 or 9 of the Act, the wife shall have the option either to live with the husband or to live separately and claim maintenance from the husband for herself and for her children, if any, from the husband, if she has no sufficient source of livelihood. (2) The quantum of maintenance, however, shall be determined by the Court having due regard to the requirement of the wife and/or children and also having due regard to the financial capacity of the husband on an application made by the wife and/or children as the case may be. Permission to take a second husband. 11. (1) A wife shall be, with the permission of the competent court, entitled to take a second husband if,— (a) her husband has been convicted for an offence and sentenced to undergo imprisonment for more than seven years; or (b) her husband is suffering from incurable and communicable venereal diseases including AIDS and thereby, incompetent and unsuitable to lead a conjugal life; or (c) he joins ascetic order and shuns married life; or (d) he is guilty of such cruelty which makes it impracticable to the wife to live with him; or (e) he has been absconding for more than seven years; and (f) he has been certified by a competent medical authority that he is impotent. (2) Notwithstanding the taking of a second husband with the permission of the Courts on the grounds mentioned in this section, her right for any share in the property of her first husband or any right flowing from her relationship with her first husband including the right of their children if any, shall remain unaffected. (3) Whenever a petition is filed by a wife seeking permission to take a second husband, the court shall consider the grounds urged with great circumspection and grant permission after recording a finding that the ground has been made out beyond reasonable doubt. Right in the property of the spouse to remain unaffected even on taking second spouse. 12. In all cases in which permission is given to a man to take a second wife or permission is given to a woman to take a second husband their right to share in the property of the spouse concerned or any right flowing from the relationship as spouse including the right of their children if any, shall remain unaffected. Jurisdiction. 13. Only the highest court of original civil jurisdiction in the district other than the High Court alone shall have jurisdiction to entertain and decide all the petitions presented under any of the provisions of this Act. Presence during proceedings in the Court. 14. At the time of the proceedings of the Court, in each case only parties to that cases and their counsel and such other persons, with the permission of the court shall be present in the Court. Appeal. 15. (1) An appeal shall lie to a Division Bench of the High Court against all or any of the orders passed by the Court having original jurisdiction both on questions of law and fact. (2) The High Court shall have all the powers of the first appellate Court under the Code of Civil Procedure, 1908 [5 of 1908.] both in respect of making any interim order as well as passing the final orders. Religious aspects of Marriage remain unaffected. 16. All religious aspects of the marriage in all the personal laws of the citizens belonging to different religions shall remain unaffected. Act to have overriding effects. 17. The provisions of this Act shall have effect notwithstanding any thing contained in any of the laws in force as on the date of commencement of this Act, including the Muslim Personal Law Application Act, 1937 [26 of 1937] and the Dissolution of Muslim Marriage Act, 1939 [8 of 1939] and all the laws continued by virtue of Article 372 of the Constitution as also any usage, custom or practice. Power to make rules. 18. (1) The Central Government shall have the power to frame rules after previous publication generally for carrying out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters namely:— (a) the procedure to be adopted by the Court in the petitions presented under the provisions of this Act; (b) the form and manner in which any restriction, the type of restriction and particulars of information required to be entered in the registers, in respect of all the proceedings under the Act; (c) fees that may be levied in respect of petitions and/or applications under the Act; (d) manner in which public notice may be given in cases in which the whereabouts of the respondent is not known; and (e) any other matters, which may be or required to be prescribed. STATEMENT OF OBJECTS AND REASONS Prior to the date of commencement of the Constitution, there were different laws governing marriage and divorce as applicable to different classes of citizens. All those laws were continued by virtue of Article 372 of the Constitution insofar as they are consistent with the provisions of the Constitution. One of the main objectives of the Constitution as enshrined in the Preamble is that the State shall be secular and shall ensure equality for all citizens and to secure Social Justice. Article 14 is an injunction to the State not to deny equality before law. Article 15 in particular prohibits discrimination against any citizen on grounds of religion or s*x. Article 44 of the Constitution read with Article 37 of the Constitution makes it the fundamental duty of the State to secure for the citizens a Uniform Civil Code. As held by the Hon'ble Supreme Court in the case of S.R. Bommai Vs. Union of India. 1994 (3) SCC1 it is part of secular character of our Constitution. There are laws such as those relating to rights of individuals in family property, night to succession, minority, guardianship, marriage and divorce which fall within the scope of the expression 'Civil Code'. Of all these, Marriage and Divorce are the most important. On this topic, there are both post constitution as well as preconstitutional laws such as. The Hindu Marriage Act, 1955, the Special Marriage Act, 1954 [Act Nos. 32 of 1963, 33 of 1969, 29 of 1970 and 68 of 1976]. The Indian Christian Marriage Act, 1872, The Parsi Marriage and Divorce Act, 1936. The Muslims Marriage and Divorce Act 1951 as applicable to different class of citizens have been made. However, as regards the Personal Laws of Muslims, concerning marriage and divorce, no law has been enacted by the Parliament after the commencement of the Constitution. The Muslim Personal Law relating to marriage and divorce enables a man to take four wives at a time and further it confers a unilateral and absolute right on the husband to divorce his wife by his own order called 'talaq'. These provisions of Muslim Personal Law relating to Marriage and Divorce are discriminatory against women only on ground of s*x. It is also discriminatory only on the ground of religion. Equality as between man and woman and dignity of individual citizen is the very fundamental aspect of equality and social justice. The fundamental right guaranteed under Article 15 inter alia prohibits discrimination on the ground of s*x or religion. Further, the Uniform Law on the topic of Marriage and Divorce is essential for the purpose of national integration, as held by the Hon'ble Supreme Court in the case of Mohd. Ahmed Khan Vs. Shah Bano Begum— AIR 1985 SC 955 and in its recent judgment is Sarala Mudgal [1995 (3) SCC 635]. Despite the words of wisdom coming from the highest court and the Constitutional mandate, they are subordinated to religion dominated politics. Therefore, it is high time that supremacy of the Constitution must prevail. It is also matter of common knowledge that ordinarily no woman relishes the idea of her husband having another wife and Muslim women are no exception to this. But they are being discriminated against both on grounds of religion and s*x and males are favoured to the detriment of the interest of women and thereby causing gender discrimination. Therefore, this Bill is intended to put an end to the discrimination against women on grounds of s*x, and religion by incorporating the rule of monogamy subject to the exceptions as expressly provided for in the Act. The provisions regarding divorce incorporated in this Act is, in terms of Section 27 and 28 of the Special Marriage Act, 1954. Monogamy as an invariable rule in exceptional cases causes great hardship both to the husband and wife, who are unwilling for divorce but second marriage has become necessary in the interest of both and the family. To illustrate, in a case where husband and wife love each other, and are leading a happly life, unfortunately on account of a motor accident, the wife loses both her legs, and therefore, unable to discharge her obligations as a wife, and therefore desires that her husband should take a second wife. But the existing law does not permit that and for that purpose has to seek a divorce of the first wife though they do not want it and which would result in inflicting greater injury than already suffered on account of accident or in a case where it is medically proved that the wife is not child bearing and therefore, the wife herself desires and gives consent to her husband taking a second wife, the law does not permit, which is unbearable to both. Therefore, exception to monogamy is provided for, for all in order to avoid divorce, in cases in which either the wife or the husband or both do not want divorce even in cases in which a ground for divorce is made out. In such cases, provision has been made to the effect that with the consent of the wife only, according permission to the husband to take a second wife is provided for. This is intended to safeguard the interest of wife who does not like to be a divorcee, not only by maintaining her status as wife but also protecting all her rights under the law, as wife. Further, in cases in which the wife is not child bearing or has become incapcitated for discharging her duties and obligations as a wife, she is given the right to seek permission of the Court for her husband taking a second wife with the object of continuity of the family. Provision has also been made for enabling a wife to take a second husband as provided in Section 11. In substance, this law is meant not only to ensure complete national integration which is essential for protecting and strengthening the feeling of fraternity among the people and unity and integrity of the National but also in protecting the interests of both husband, wife and their family. Hence, this Bill. M. RAMA JOIS MEMORANDUM REGARDING DELEGATED LEGISLATION Clause 18 of the Bill empowers the Central Government to make rules to carry out the purposes of the Bill. It will relate to matters of details only. The delegation of legislative power is of normal character. RAJYA SABHA ———— A BILL to remove the discrimination between man and woman in the matter of marriage and divorce in the existing laws, to ensure equality between them and confer dignity and humane treatment to women and to strengthen family and for matters connected therewith and incidental thereto. ———— (Shri M. Rama Jois, M.P.) GMGIPMRND—2350RS(S5)—03-05-2010.

I have learned many things from all of you through your erudite posting. But I also want to add that Divorce was granted after five years and the wife appeal followed by cross objecrtion by the husband. From the facts itself it is very clear that the marriage ia dead and buried long time and the fact that HMA does not mention irrevertable break down of marriage is no ground to continued with the marriage when it is dead both emotionally and practically. The party should not be allowed to continued with prolong agony and afflictions.

Thank you every one for your valueble feedbacks and knowledge sharing . I am still not clear about how long the court proceedings may take for the case to end

how long ?

- even the court can not say it exactly.