Now it’salready5monthsgone after myfiling. The first date was inDec 2009. Onthat dayI just got another date. And onthe next date also, I shall surelyget just “another date.”
Isnot thisthe right (ifnot delayed already) time to addressthe problemassociated with Indian Divorce Act itself? We have now a “Fault divorce” andmutual divorce. Whenmypartner andme can’t agree ona lessaffectingthinglike “mutual divorce” (whichmeansto breakthe tie ofmarriage), how canwe STAY TOGETHERin marriage thereafter?All ofusknow that, stayingtogether (inany form) requiresmuchmore agreement betweenanytwo people than tostayapart. That meansI have torequest (or beg or buy) mywife to be free from marriage, just like a sentencedcaptive fromthe
Jail. Judiciariesindirectlybeing usedasa tool to bargaintermsfor divorce, incaseslike this. Yes, whenthere islegal battle between the couple, whoare stayingseparate over a year, the onlymottocan be to get a “good bargain” or to harassone spouse bymere non- cooperation. I wouldlike tomentionanother thing. Mypetition primarilybased on“CRUELTY”, asthe most suitable “available ground” for divorce. But one hasto understandthat fairer sex normallydon’t act “cruel” byphysical nature. Eveninsome cases “SILENCE” or “ABSENCE OF CORDIAL NATURE” between husbandandwife can be crueltyofsevere nature, which happenedinmycase.
Brokenmarriage isnot a crime and by the recommendedamendment, divorce law canaddressthat break withfar lesscomplexity. Aswe all know, nobodyor nothingcan compel a couple or anytwo people tolive together. Present Divorce Law can delay(andmake more bitter) the processof divorce, but can’t reallychange the directioninthis scenario.
Can the Judiciary askme topoint out veryprivate part ofmy life like marriage?Isnot thishamperingmybasic fundamental right asacitizen?When there isnosuch law for a “father & son” or “mother &son”relation tobe in that tie for ever (although maintenance clause isthere), whywould be such grossdisparityin case ofmarriage?Are later the more “NOBLE” or “MUST ON”relationsthan the earlier?Is institution ofmarriage aserious“offense”, which ifIhave done once, can’t be freed till mydeath?Iswedlockmeans deadlock?
Now asaneffect I have two options–
EITHER tostayin mymarriage forgetting about my own negative feelingscompromisingwith myhealth andpeace of mind
OR
Tobadmouth myson’smother in the court toprove her fault to get rid ofher.
Some Newspaper articles about our present
Divorce Law:-
“Examiningthe irretrievable breakdown ofmarriage asa ground for divorce
Ankit Kejriwal, PrayankNayak
Irretrievable breakdown of marriage can be defined assuch failure in the matrimonialrelationship or such circumstances adverse to that relationship that no reasonable probability remainsof the spousesremaining together ashusband and wife for mutual comfort and support. It isthe situation that occursin a marriage when one spouse refusesto live with the other and willnot worktowardsreconciliation. When there isnot an iota of hope that partiescan be reconciledto continue their matrimonial life, the marriage can be considered asIrretrievable Breakdown of marriage.
Thisconcept wasfirst introduced in NewZealand. The
Divorce and MatrimonialCausesAmendment Act, 1920
included for the first time the provisionfor separation agreement for three or more yearswasa ground for making petition to the court for divorce and the court wasdiscretion whether to grant divorce or not. In England, the gate for this theorywasopened up in the case of Masarati v. Masarati, where both the partiesto the marriage had committed adultery. The court of appeal, on wife’spetition for divorce, observed breakdown of marriage. The lawcommission of England in itsreport said, The objectivesof good divorce law are two: one to buttressrather than to undermine the stability of marriage and two, when regrettablya marriage has
broken down, to enable the emptyshellto be destroyed with maximumfairness, and minimumbitterness, humiliation and distress. On the recommendation of the Lawcommission, Irretrievable Breakdown of Marriage wasmade the sole ground for divorce under section 1 of the Divorce Law reformsAct, 1973. The MatrimonialCausesAct, 1959 of the Commonwealth of Australia provided for divorce on the groundsof breakdownof marriage. In India, breakdown of marriage isstillnot ground divorce in spite of the recommendation of the LawCommission and various Supreme Court judgmentsto include breakdown of marriage asa ground for divorce. Thispaper examinesthe need to introduce irretrievable breakdown of marriage asa ground of divorce.
Theoriesof divorce
The provisionsrelating to divorce are contained in Sec13 of Hindu Marriage Act, 1955. The Act recognizestwo theories of Divorce: the fault theoryand divorce bymutual consent. Under the fault theory, marriage can be dissolved onlywhen either partyto the marriage had committed a matrimonial offence. Under thistheoryit isnecessaryto have a guilty
and an innocent partyand onlyinnocent partycan seekthe
remedyof divorce. However the most striking feature and drawbackisthat if both partieshave been at fault, there isno remedyavailable.
Judicialopinions
The Supreme Court hasadopted a literal viewand granted divorce under irretrievable breakdown of marriage. In Ashok Hurra v. Rupa Bipin Zaveri,the husband and wife filed a suit for divorce bymutual consent. But, subsequentlywife withdrewher consent. So the petition wasdismissed bytrial court. The Supreme Court held that We are of the viewthat cumulative effect of variousaspectsinvolved in the case indisputablypoint out that marriage isdead both emotionally and practically, and there isno chance at allof the same being revived and continuation of such relationship isonly
for name-sake.The Honble Court used Article 142 and granted divorce. The DelhiHigh Court in itsfulljudge bench
decision in Ram Kali v. GopalDas,tooknote of modern
trend not to insist on maintenance of an union which was broken and said, ‘it would be practicaland realist approach, indeed it would be unreasonable and inhumane, to compel the marriage to keep up the facade of marriage even though the rift between themiscomplete and there are noprospects of their living together ashusband and wife’. In the case of SavitriPandeyv. PremChandra Pandey, the Supreme Court reiterated the need for the inclusion of irretrievable breakdown of marriage asa ground for divorce. The
Supreme Court in Manjula v. K.R. Mahesh held, the marriage hasirretrievablybroken down and there would be
no point in making an effort to bring about conciliation between the parties. In Neetu Kohli v. Naveen Kohli, husband alleged that the wife wasquarrelsome and was found in compromising situation with one BiswasRout. The
wife counter alleged that husband had a concubine. This established that the marriage had broken down irreparably and hence granted divorce on groundsof an irretrievable
breakdown. It also observed that it washigh time that thisbe included asground for divorce in the Hindu Marriage Act,
1955.
Other jurisdictions
In most developed nations, the irretrievable breakdown of marriage isrecognised asa ground for divorce.
NewZealand
NewZealand wasthe first countryto recognize it, through the Divorce and MatrimonialCausesAmendment Act, 1920
where a separation agreement for three yearsisa ground for making a divorce petition.
AUSTRALIA
The MatrimonialCausesAct, 1959 of the commonwealth of Australia provided for divorce on the groundsof breakdown of marriage. The FamilyLawAct (Australia), 1975 considers irretrievable breakdown assole ground for divorce.If a marriage breaksdown, it can legallybe ended bythe court granting a Divorce.There isonlyone ground for divorce in Australia- the fact that the marriage hasirretrievablybroken down. The legaltest of irretrievable breakdown isthat you have lived apart for at least twelve monthsand there isno prospect of reconciliation. Asfar asthe court isconcerned, thisisallyou have to establish. The judge won't be
interested in who left whom, or whether one of you ishaving an affair, orwhose 'fault'it wasthat the relationship broke
down.
Brazil
Presumablydue to the influence of the Roman Catholic Church, divorce onlybecame legal in Brazil in 1977. Since January2007, Brazilian couplescan request a divorce at a notary'soffice when there isa consensus, the couple has been separated for more than a year and have no underage or special-needschildren. The divorceesneed onlyto present their nationalIDs, marriage certificate and paya smallfee to initiate the process, which iscompleted in two or three weeks.
Canada
Canada did not have a federaldivorce lawuntil1968. Before that time, the processfor getting a divorce varied from province to province. In Newfoundland and Quebec, it was necessaryto get a private Act of Parliament in order to end a marriage. Most other provincesincorporated the English MatrimonialCausesActof 1857 which allowed a husband to get a divorce on the groundsof hiswife'sadulteryand a wife to get one onlyif she established that her husband
committed anyof a list of particular sexualbehavioursbut not simplyadultery. Some provinceshad legislation allowing either spouse to get a divorce on the basisof adultery.
The federalDivorce Actof 1968 standardized the lawof divorce acrossCanada and introduced the no-fault concept of permanent marriage breakdown asa ground for divorce
aswellasfault based groundsincluding adultery, crueltyand desertion. Under the Divorce Act, 1967-68 it (breakdown of marriage) isclearlyrecognised asa ground fordivorce, apart fromthe normalfault grounds.
In Canada, while civiland politicalrightsare in the jurisdiction of the provinces, the Constitution of Canada specificallymade marriage and divorce the realmof the federalgovernment. Essentiallythismeansthat Canada's divorce lawisuniformthroughout Canada, even in Quebec, which differsfromthe other provincesin itsuse of the civil lawascodified in the CivilCode of Quebecasopposed to the common lawthat isin force in the other provincesand generallyinterpreted in similar waysthroughout the Anglo- Canadian provinces.
The Canada Divorce Act recognizesdivorce onlyon the ground of breakdown of the marriage. Breakdown can only
be established if one of three groundshold: adultery, cruelty, andbeing separated for one year.Most divorcesproceed on the basisof the spousesbeing separated for one year, even
if there hasbeen crueltyor adultery. Thisisbecause proving crueltyor adulteryisexpensive and time consuming.The
one-year period ofseparation startsfromthe time at least one spouse intendsto live separate and apart fromthe other and actson it. Acouple doesnot need a court order to be separated,since there isno such thing asa "legal separation" in Canada. Acouple can even be considered to be "separated" even if theyare living in the same dwelling. Either spouse can applyfor a divorce in the province in
which either the husband or wife haslived for at least one year.
On September 13, 2004, the Ontario Court of Appeal declared a portion of the Divorce Act also unconstitutionalfor
excluding same-sexmarriages, which at the time of the decision were recognized in three provincesand one territory. It ordered same-sexmarriagesread into that act, permitting the plaintiffs, alesbian couple, to divorce.
France
The French Civil code (modified on January1, 2005), permitsdivorce for 4 different reasons; mutual consent (which comprisesover 60% of alldivorces); acceptance; separation of 2 years; and due to the 'fault'of onepartner (accounting for most of the other 40%).
Sweden
To divorce in Sweden the couple can file for divorce together or one partycan file alone. If theyhave children under 16 living at home or one partydoesnot wish to get divorced there isa requiredcontemplation period of 6 to 12 months. During thisperiod theystaymarried and the request must be confirmed after the waiting period for the divorce to go through.
United Kingdom
England and Wales
In England, on the recommendation of the LawCommission, it wasmade the sole ground for divorce under section 1 of the Divorce LawreformsAct, 1969.
Adivorce in England and Walesisonlypossible for marriagesofmore than one year and when the marriage has irretrievablybroken down.Whilst it ispossible to defend a divorce, the vast majorityproceed on an undefended basis.
Adecree of divorce isinitiallygranted 'nisi', i.e. (unless cause islater shown), before it ismade 'absolute'
Frombeginning to end, if everything goessmoothlyand
Court permitting, it takesaround 6 months.
There isonlyone 'ground'for divorce under English law. That isthat the marriage hasirretrievablybroken down. There are however five 'facts'that mayconstitute this ground. Theyare:
· Adultery
often nowconsidered the'nice'divorce.
respondentsadmitting to adulterywillnot be penalised financiallyor otherwise.
· Unreasonable behaviour (most common ground for divorce today)
the petition must contain a seriesof allegationsproving that
the respondent hasbehaved in such a waythat the petitioner cannot reasonablybe expected to live with him/her.
the allegationsmaybe of a seriousnature (eg. abuse or excessive drinking) but mayalso be mild such ashaving no common interestsor pursuing a separate social life ; the courtswon't insist on severe allegationsastheyadopt a realisticattitude: if one partyfeelsso stronglythat a behaviour is"unreasonable" asto issue a divorce petition, it isclear that the marriage hasirretrievablybroken down and it would be futile to tryto prevent the divorce.
· Two yearsseparation (if both partiesconsent)
both partiesmust consent
the partiesmust have lived separate livesfor at least two yearsprior to the presentation of the petition
thiscan occur if the partieslive in the same household, but the petitioner would need to make clear in the petition such mattersastheyate separately, etc.
· Two yearsdesertion
Five yearsseparation (if onlyone partyconsents)
Scotland
About one third of marriagesin Scotland end in divorce, on average after about thirteen years.Actionsfor divorce in Scotland maybe brought in either the Sheriff Court or the Court of Session. In practice, it isonlyactionsin which unusuallylarge sumsof moneyare in dispute, or with an internationalelement, that are raised in the Court of Session. If, asisusual, there are no contentiousissues, it isnot necessaryto employa lawyer. Divorce (Scotland) Act 1976.
It islikelythat the two year separation period required for a no-fault divorce withconsent willbe reduced to one year.
United States
MaritalStatusin the U.S.
Divorce in the United Statesisa matter of state rather than federal law. In recent years, however, more federal legislation hasbeen enacted affecting the rightsand
responsibilitiesof divorcing spouses. The lawsof the state(s)
of residence at the time of divorce govern; all states recognize divorcesgranted byanyother state. All states impose a minimumtime of residence. Typically, a county court’sfamilydivision judgespetitionsfor dissolution of marriages.
Prior to the latter decadesof the 20th century, a spouse seeking divorce had to showcause and even then might not be able to obtain a divorce.The no-fault divorce "revolution" began in 1969 in California, and wascompleted in 1985
(NewYorkisthe last holdout ).However, most statesrequire some waiting period, typicallya 1 to 2 year separation. Fault
grounds, when available, are sometimesstill sought. This
maybe done where it reducesthe waiting period otherwise required, or possiblyin hopesof affecting decisionsrelated to a divorce, such aschild custody, child support, or alimony.”
“Feelingsoftwohumanbeingsareinvolvedina couple’s marriedlife.Thiscouldnotbepatchedupby enforcementof law bycourts.Itisuptotheindividualstomendthemselves. Ahorsecanbetakentowaterbutitisthehorsethatshould
drinkit.However,thelaw shouldnotdenydivorceifthe marriagehasreally brokendown.By forcingunity witha hammerinthehand,thelaw doesnotservethesanctity attachedtotheinstitutionofmarriageby religions.Ifthe relationshipofhusbandandwife wrecksbeyond repair, what iswronginrecognizingthatfactandallow themtolive separately.How canonecompelawifeorahusbandto continuetolivewithspouseifthey havefallenapart? If so compelled theywould have to lead miserable life.”
I like to highlight some factsincountries, where NO- FAULT (effectivelyfaster & peaceful) divorce exists: -
· Adeclinein theratesof domesticviolence
(which is obviously of a very high concern in India)
· These lawsempower a man or woman in an “abusive marriage” and make it easier toleave and live separate
· Meansless conflictduringdivorce, which meansless emotional harmto childrenwhose parents, are divorcing(very much valid in my case)
· Shortensthelength of time it takesto obtain a divorce, which, in turn, shortensthe amount of time spent in a stressful situation causingphysical and mental damage toinvolved party (asin my case, Iam havinganti depression drugsasprescribed)
· Financial settlementsare based on need, ability topay and contribution tothe family finances, rather than on fault (Iam ready toaccept any reasonable amount decided by judiciary)
· Helpsreducetheheavy caseloadsof family courts
(obviously valid for India)
Our legislationishesitatingtoamendthe law. Nobodywantsto disturbthe “STATUS CO”. Itshuman nature toresist anykind of change. A Surgeryisdone onlywhenthat isneeded, toavoidsome greater pain or loss. Ifwe remember, we inIndia hadcustomslike “SOTI DAHO PROTHA” (burningthe widow with dead husband), which now we can’t evenimagine. Aswe are gettingexposedto
the world, we have toratinolise our thought processandlaws, by improvisinganyoutdatedsystemor rule. Stayingapart for a
considerable perioditselfpointstowardsthe death ofthe marriage,
“Divorce” is just the legal nomenclature ofthat unfortunate incident. No divorce or evencause ofanydivorce will initiate because ofthe saidamendment, but surelyit will decrease the suffering ofcouple whose divorce alreadyinitiated. This amendment isonlyanadditiontothe groundsofdivorce; nowayit can hamper the relationship betweena marriedcouple. Mr Moily, honourable law minister ofIndia statedrecently:-
‘Moilysaidthat the government mayconsider anamendment in
the law tomake disposal ofdivorce andcustodycasestime-bound, ashasbeen done for gramnyayalayas. He saidthat familycourts will be givenatarget ofwinding upsuchcases--where mutual consent isabsent--withina year ofthembeingfiled. He believes litigatingcouples should be freed quicklyfroma brokenmarriage in order tostart life afresh.
"There isno needfor divorce casesto dragonfor yearswhenthe marriage hasactuallybroken down. Similarly,children'scustody
casesmust be decidedina time-boundmanner sothat there isno uncertaintyover their future," Moilysaid.’
I APPEAL AND PRAY TO ALL :-
RAISEVOICESINFAVOUROFTHE DIVORCELAWAMENDMENT
