The report from the standing committe has been submitted. The committe seems to have requested the government to come out with a revised bill taking into account some of the apprehensions.
--------------------------------------- 1
PARLIAMENT OF INDIA
45
RAJYA SABHA
DEPARTMENT RELATED PARLIAMENTARY STANDING COMMITTEE ON
PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE
FORTY FIFTH REPORT
ON
THE MARRIAGE LAWS (AMENDMENT) BILL, 2010
________________________________________________________________________
ST
(PRESENTED TO THE RAJYA SABHA ON 1 MARCH, 2011)
ST
(LAID ON THE TABLE OF THE LOK SABHA ON 1 MARCH, 2011)
RAJYA SABHA SECRETARIAT
NEW DELHI
MARCH, 2011 / PHALGUNA 1932 (SAKA)
--------------------------------------- 2
CS (P & L) - ....
PARLIAMENT OF INDIA
RAJYA SABHA
DEPARTMENT RELATED PARLIAMENTARY STANDING COMMITTEE
ON
PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE
FORTY FIFTH REPORT
ON
THE MARRIAGE LAWS (AMENDMENT) BILL, 2010
ST
(PRESENTED TO THE RAJYA SABHA ON 1 MARCH, 2011)
ST
(LAID ON THE TABLE OF THE LOK SABHA ON 1 MARCH, 2011)
RAJYA SABHA SECRETARIAT
NEW DELHI
MARCH, 2011 / PHALGUNA 1932 (SAKA)
--------------------------------------- 3
C O N T E N T S
PAGES
1. COMPOSITION OF THE COMMITTEE (i)
2. INTRODUCTION (ii)-(iii)
3. REPORT 1 - 30
*
4. RELEVANT Minutes OF THE MEETINGS OF THE COMMITTEE …..
*5. ANNEXURE -
A. THE MARRIAGE LAWS (AMENDMENT) BILL, 2010
B. COMMENTS OF THE MINISTRY OF LAW AND JUSTICE (LEGISLATIVE
DEPARTMENT) ON THE VIEWS/SUGGESTIONS CONTAINED IN MEMORANDA
SUBMITTED BY INDIVIDUALS/ORGANISATIONS/EXPERTS ON THE PROVISIONS OF
THE BILL.
*
To be appended at printing stage.
--------------------------------------- 4
COMPOSITION OF THE COMMITTEE
1. Smt. Jayanthi Natarajan ç Chairperson
RAJYA SABHA
2. Shri Shantaram Laxman Naik
3. Dr. Abhishek Manu Singhvi
4. Shri Balavant alias Bal Apte
5. Shri Ram Jethmalani
6. Shri Parimal Nathwani
7. Shri Amar Singh
8. Shri Ram Vilas Paswan
9. Shri O.T. Lepcha
*
10. Vacant
LOK SABHA
11. Shri N.S.V. Chitthan
12. Smt. Deepa Dasmunsi
13. Smt. Jyoti Dhurve
14. Shri D.B. Chandre Gowda
15. Dr. Monazir Hassan
16. Shri Arjun Munda
17. Shri Shailendra Kumar
18. Smt. Chandresh Kumari
19. Shri Bhajan Lal
20. Dr. Kirodi Lal Meena
21. Ms. Meenakshi Natarajan
22. Shri Devji M. Patel
23. Shri Harin Pathak
24. Shri Lalu Prasad
25. Shri S. Semmalai
26. Shri Vijay Bahadur Singh
27. Dr. Prabha Kishor Taviad
28. Shri Manish Tewari
29. Shri R. Thamaraiselvan
30. Adv. P.T. Thomas (Idukki)
31. Vacant
SECRETARIAT
Shri Deepak Goyal, Joint Secretary
Shri K.P. Singh, Director
Shri K.N. Earendra Kumar, Joint Director
Smt Niangkhannem Guite, Assistant Director
Smt. Catherine John L., Committee Officer
(i)
*th
Vacancy caused due to death of Shri M. Rajasekara Murthy on 5 December, 2010.
--------------------------------------- 5
INTRODUCTION
I, the Chairperson of the Department Related Parliamentary Standing Committee
on Personnel, Public Grievances, Law and Justice, having been authorised by the
Committee on its behalf, do hereby present the Forty Fifth Report on The Marriage Laws
(Amendment) Bill, 2010. The Bill seeks to amend the Hindu Marriage Act, 1955 and the
Special Marriage Act, 1954 to provide for irretrievable breakdown of Marriage as a new
ground for grant of a decree of divorce.
2. In pursuance of the rules relating to the Department Related Parliamentary
Standing Committee, the Hon’ble Chairman, Rajya Sabha referredthe Bill, as introduced
th
in the Rajya Sabha on the 4 August, 2010 and pending therein, to this Committee on the
rd
23 August, 2010 for examination and report.
3. Keeping in view the importance of the Bill, the Committee decided to issue a
press communiqué to solicit views/suggestions from desirous individuals/organisations
on the provisions of the Bill. Accordingly, a press communiqué was issued in national
and local newspapers and dailies, in response to which memoranda containing
suggestions were received, from various organizations / individuals / experts, by the
Committee.
4. The Committee heard the oral evidence of the Secretaries of the Legislative
Department, Ministry of Law and Justice and Ministry of Women and Child
th
Development on the provisions of the Bill in its meeting held on 17 September, 2010
th
and 28 September, 2010 respectively. The Committee also heard the views/suggestions
of various women organizations/individuals/experts on the provisions of the Bill on
thth
11 and 16 November, 2010.
5. While considering the Bill, the Committee took note of the following
documents/information placed before it : -
(i) Background note on the Bill submitted by the Ministry of Law and Justice
(Legislative Department);
(ii) Views/suggestions contained in the memoranda received from various
organisations/institutions/individuals/experts on the provisions of the Bill
and the comments of the Legislative Department thereon;
(ii)
--------------------------------------- 6
(iii) Views expressed during the oral evidence tendered before the Committee
by the stakeholders such as representatives of NGOs/women's
organizations/individuals.
(iv) Other research material/ documents related to the Bill.
nd
7. The Committee adopted the Report in its meeting held on the 2 February, 2011.
8. For the facility of reference and convenience, the observations and
recommendations of the Committee have been printed in bold letters in the body of the
Report.
New Delhi; JAYANTHI NATARAJAN
nd
2 February, 2011 Chairperson,
Committee on Personnel,
Public Grievances, Law and Justice
(iii)
--------------------------------------- 7
Chapter-I
The Marriage Laws (Amendment) Bill, 2010 was introduced* in the
thc
Rajya Sabha on the 4 August, 2010. It was referred by the Hon’ble
Chairman, Rajya Sabha to the Department-related Parliamentary Standing
rd
Committee on Personnel, Public Grievances, Law and Justice on the 23
August, 2010 for examination and report.
2. The Bill (Annexure-A) seeks to amend the Hindu Marriage Act, 1955
and the Special Marriage Act, 1954 to provide for irretrievable breakdown of
Marriage as a new ground for grant of a decree of divorce; and also to
provide certain safeguards to protect the interests of wife and children and do
away with the waiting period of six months for moving a joint petition for
grant of divorce by mutual consent.
3. The Statement of Objects and Reasons, appended to the Bill inter alia
reads as under:-
“The Hindu Marriage Act, 1955 was enacted on the 18th
May, 1955 to amend and codify the law relating to marriage
among Hindus. Similarly, the Special Marriage Act, 1954 was
enacted on the 9th October, 1954 to provide a special form of
marriage in certain cases, for the registration of such and certain
other marriages and for divorce. The provisions of the said Acts
have proved to be inadequate to deal with the issue where there
th
* Published in Gazette of India (Extraordinary) Part-II Section 2 dated the 4 August, 2010.
cth
Rajya Sabha Parliamentary Bulletin Part-II (No.47173) dated the 4 August, 2010.
--------------------------------------- 8
has been irretrievable breakdown of marriage and therefore a
need has been felt for certain amendments therein.”
“Having regard to the recommendations of the Law
Commission of India and the observations of the Hon'ble
Supreme Court as aforesaid and the demand from various
quarters, it is proposed to amend the Hindu Marriage Act, 1955
and the Special Marriage Act, 1954 so as to provide for
irretrievable breakdown of marriage as a ground of divorce
thereunder subject to certain safeguards to the wife and affected
children.”
4. With this objective in view, the Bill proposes to make the following
amendments:-
(a) to insert section 13C in the Hindu Marriage Act, 1955 and
section 28A in the Special Marriage Act, 1954 to provide for
divorce on the ground of irretrievable breakdown of marriage.
(b) to insert section 13D in the Hindu Marriage Act, 1955 and
section 28B in the Special Marriage Act, 1954 to provide for a
right to wife to oppose the petition for divorce on account of
irretrievable breakdown of marriage on the grounds of grave
financial hardship.
(c) to insert section 13E in the Hindu Marriage Act, 1955 and
section 28C in the Special Marriage Act, 1954 to ensure
provision of adequate maintenance to children born out of the
marriage consistently with the financial capacity of such parties
--------------------------------------- 9
to the marriage before granting a decree of divorce on the
ground of irretrievable breakdown of marriage; and
(d) to amend sub-section (2) of section 13B of the Hindu Marriage
Act, 1955 and sub-section (2) of section 28 of the Special
Marriage Act, 1954 so as to do away with the waiting period of
six months for moving a joint motion after filing a petition for
grant of divorce on the ground of mutual consent.
5. The background note on the Bill submitted to the Committee by the
Ministry of Law and Justice (Legislative Department) states that the history
of the development of the Hindu Law has shown that it was never static and
had changed from time to time so as to meet the challenges and the
changing requirements of different times. The Special Marriage Act, 1954,
being a civil law and applicable to all, has to necessarily keep pace with any
reform in the field of matrimonial laws.
5.1 Initially, the grounds available for divorce under sub-section (1) of
section 13 of the Hindu Marriage Act, 1955 were limited to adultery,
conversion to another religion, incurably of unsound mind for a continuous
period of not less than three years, suffering from virulent and incurable
from of leprosy for a period of not less than three years, suffering from
venereal disease in a communicable form for a period of not less than three
years, renouncement of the world and not heard of as being alive for a
period of seven years.
6. The Department further informs that in the year 1974, a need was felt
that it would be reasonable and desirable to liberalize divorce provisions and
on the basis of the Law Commission's recommendation, the Marriage Laws
--------------------------------------- 10
(Amendment) Act, 1976 was enacted to include "cruelty" and "desertion" as
new grounds for grant of a decree of divorce under section 13 of the Hindu
Marriage Act, 1955 and also to provide divorce by mutual consent by way of
a new section 13 B of the said Act.
6.1 The grounds for divorce presently available under both these
enactments are mainly of three categories. The first category is based on the
traditional theory of matrimonial fault. The second is based on the theory of
frustration by reason of specified circumstances. The third is the theory of
consent. There is, however, no ground in these Acts which expressly
provides for divorce on the ground of irretrievable breakdown of marriage.
6.2 Subsequently, keeping in view various decisions of courts holding
that it would be unreasonable and inhuman to compel parties to keep up the
façade of marriage even though the rift between them is complete, and there
are no prospects of them ever living together as husband and wife, etc., "the
st
Law Commission of India in its 71 Report on" The Hindu Marriage Act,
1955 - Irretrievable Break Down of Marriage as a Ground of Divorce",
th
submitted on 7 April, 1978, has recommended insertion of a new section
13C for divorce on the ground of irretrievable breakdown of marriage.
While the said report was being considered in consultation with the State
Governments and Union territories, several decisions of the Supreme Court
including Miss Joden Diengdeh Vs. S.S. Chopra (reported in AIR 1985 SC
935) and Navin Kohli V/s. Neelu Kohli (reported in AIR 2006 SC 1675),
recommended insertion of irretrievable breakdown of Marriage as a ground
for grant of divorce. Pursuant to the above referred decisions of the
Supreme Court, the Law Commission of India took up study of the subject
and after examining the extant legislation and various judgments of the
--------------------------------------- 11
Supreme Court and High Courts on the subject, has recommended in its
th
217 report on "Irretrievable Break Down of Marriage - another Ground for
th
Divorce" submitted on 30 March, 2009, inclusion of Irretrievable Break
Down of Marriage as a ground for grant of divorce.
6.3 The recommendations of the Law Commission of India have been
considered and it is felt that the provisions of the aforesaid Acts have
proved to be inadequate to deal with the issue where there has been
irretrievable breakdown of marriage and therefore, amendments to the said
Acts are necessary.
7. The Department asserts that accordingly, the Marriage Laws
(Amendment) Bill 2010 has been prepared to provide irretrievable
breakdown of marriage as a new ground for grant of a decree of divorce by
inserting new section 13C. It is also proposed to insert new section 13D to
provide for a right to wife to oppose the petition for irretrievable
breakdown of marriage on the ground of hardship. With a view to protect
the interests of children born out of marriage, it is also proposed to provide
adequate safeguards by inserting a new section 13E for ensuring provision
of adequate maintenance to children before a decree for divorce on the
ground of irretrievable breakdown of marriage can be granted. Similar
amendments are also proposed in the Special Marriage Act, 1954 by
inserting new sections 28A, 28Band 28C. It is also proposed to amend sub-
section (2) of section 13B of the Hindu Marriage Act, 1955 and sub-section
(2) of section 28 of the Special Marriage Act, 1954, respectively, by doing
away with the waiting period of six months for moving a joint motion after
filing a petition under section 13B for grant of divorce of the ground of
mutual consent.
--------------------------------------- 12
8. The Committee heard the presentation of the Secretary, Legislative
th
Department of the Ministry of Law and Justice on the Bill on the 17
September, 2010 and recorded the views of Secretary, Ministry of Women
th
and Child Development during its meeting held on the 28 September,
2010 on the Bill.
9. In order to have a broader view on the Bill, the Committee decided to
invite views/suggestions from desirous individuals/organizations.
Accordingly, a press release was issued inviting views/suggestions from
individuals/organizations. In response to the press release published in
th
major English and Hindi dailies and newspapers on the 18 September,
2010, a number of representations were received.
10. The Committee examined the representations received on the Bill.
Having analyzed these representations, some of them were identified to be
considered as memoranda containing pertinent suggestions/comments on
the various aspects of the Bill. Some significant issues raised in such
memoranda have been summarized in the succeeding Chapter. Some select
memoranda were also forwarded to the Ministry of Law and Justice
(Legislative Department) for their comments. The list of these memoranda
along with the gist of views and suggestions and corresponding comments
of the Ministry of Law and Justice on such views/suggestions is placed at
Annexure....
11. Given the far reaching legal and social implications of the Bill, the
Committee decided to hear the views of all important stakeholders on the
Bill so as to have a deep insight of the subject matter of the Bill. For this
purpose, the Committee invited various non-official witnesses
--------------------------------------- 13
(individuals/organizations) to appear before the Committee for tendering
oral evidence. The Committee heard the views of National Commission for
Women and some NGOs namely MAJLIS, (Center for Women's Rights
Discourse & Legal Initiative), Gender and Human Rights Society, Lawyers'
Collective and Women's Rights Initiatives, Mothers and Sisters Initiatives,
All India Democratic Women's Organization, Save Family Foundation,
Children's Rights Initiative for Shared Parenting (CRISP) and Mr. S.R.
Abrol, a concerned individual.
--------------------------------------- 14
CHAPTER II
The major points raised in the memoranda received from the
individuals and organizations are summarized as follows:
(1) It is important to introduce breakdown of a marriage as an
independent ground of divorce in totality and not as part of it.
(2) The legislature needs to understand that under the changed
socio-economic conditions of the society, the women have
come forward to accept the challenges and they have tried to
become self-reliant. They no longer want to live at the mercy of
their husbands.
(3) If the proposed legislation is passed, there will be a total of 6
sections under which a Hindu woman can claim maintenance
leading to unnecessary complications and duplication of law.
(4) The proposed legislation is silent on the issue of child custody.
In the best interest of children, a separation between husband
and wife should also include provisions on mechanism to deal
child custody matters. Child custody and visitation rights
should also be decided before granting divorce, while deciding
maintenance of the child under this Bill.
(5) Wife has right to oppose petition on grounds of ‘financial
hardship’. It clearly ignores large number of cases where
husbands have filed for maintenance under Hindu Marriage Act
from wife.
--------------------------------------- 15
(6) The proposed legislation is silent on what will happen to the
pending cases like Domestic Violence Act, 498A IPC, Child
Custody, CrPC 125 and any other Civil and Criminal cases and
has left scope for future litigations. It should ensure that all
proposed litigation between the parties are settled before
granting divorce.
(7) Just to think that women only are weak and need protection and
it is always the men who are harassing a wife shows complete
disconnect from the ground realities.
(8) The proposed provision that Courts can stay the case until
appropriate arrangements are made will lead to legal extortion
with the help of lawyers and vengeful women. This will force
husbands to ‘buy’ divorce regardless of, who at fault, is. This
proposed amendment will widely be misused.
(10) The current concept of gender neutrality like that of Section 24
of the Hindu Marriage Act which takes into consideration that
both the husband and the wife can face financial hardship has
been totally ignored in the proposed amendment.
(11) The term ‘financial hardship’ should be defined because
otherwise this will lead to a subjective interpretation of this
term and will ultimately turn into a tool for extortion and will
be used to block a divorce till the unreasonable financial
demands of the respondent are fulfilled.
--------------------------------------- 16
(12) 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.
(13) 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.
(14) All court cases should be decided in less than 3 years. Cases
filed by Senior citizens (60 years or more) should be given
priority in all courts. Vacancies of judges should be filled up
urgently and additional judges appointed to clear pending cases.
Special courts should be set up to hear cases for divorce.
(15) At least a minimum of 6 month’s time is required for separation
with a minimum of 3 sittings with both the parties. This time
period is required to calm the initial force of decision of
separation.
(17) The compensation to the wife should be at least 70% of total
income of husband or more. The total income should include all
allowances, perks, incentives and monthly salary. The Initial
compensation should be made Rs. 50,000/- in rural areas and
Rs. 1,00,000/- in Urban areas. The compensation should be
--------------------------------------- 17
stopped if she remarries or stays in relation with another person
to restrict adultery.
(18) The laws should be made in simple language to be understood
by everybody.
(21) Issues such as, whether it has been a long term or short term
marriage, whether the wife is a wage earner and also a home
maker or merely a home maker, and which of the spouses is
desirous of obtaining a divorce and is keen to move on in life
become key concerns in this discourse. Other factors such as
age and class also play a part.
(22) A discussion over women's right to matrimonial home and
property should proceed alongside the discussion on
irretrievable breakdown of marriage so that certain safeguards
can be built into the proposed legislation to secure women's
rights.
(23) 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 liberalize the
grounds of divorce.
(24) Equal rights to wife in the property acquired by the couple
during the subsistence of the marriage and equal division of the
marital property upon separation has to be legally provided.
(25) It must be ensured that a provision is made that women with
children have a house/ place of residence.
--------------------------------------- 18
(26) The laws relating to maintenance for women and children must
be strengthened to ensure that women/ children receive an
adequate amount of maintenance sufficient enough for them to
live in a lifestyle which is similar to the one they were used to
in the marital home. Special laws for disclosure of income of
the Husbands and shifting of onus of proof in these cases will
have to be considered. Ways and means to lessen the discretion
of the judiciary in these matters must be thought of as women
and children have invariably been awarded very low
maintenance amounts by a large number of Courts.
(27) The Government has to enact a law to enforce and recover
maintenance amounts. Apart from this a fund will have to be
created from which maintenance can be immediately given to
the wife and children. In several countries separate enforcement
agencies have been created to recover maintenance amounts. It
is a duty of the State to see that women and children are not left
to fend for themselves in these cases.
(28) Entitlements from the state should be made essential for
deserted/ separated/ divorced women and children in cases in
which there is no property or cases in which no maintenance
can be granted because of poverty and/ or other reasons.
(29) Sub section (2) of section 13B of Hindu Marriage Act, 1955
and the subsection (2) of section 28 of the Special Marriage
Act, 1954 needs to be removed since the waiting period of six
months for moving a joint motion after filing a petition for
--------------------------------------- 19
grant of divorce on the ground of mutual consent serves no
purpose but creates unnecessary bad blood and acrimony in the
two families.
(30) The role of NGOs may be incorporated in helping getting
divorce in case of irretrievably broken down marriages. The
NGOs after providing counseling to both the sides, may give
their opinion in the courts.
(31) The role of the advocates in the above said cases may be
minimized as it is seen from experiences that they make all
sorts of efforts to delay divorces.
(34) It makes a very sad commentary on the administrators of a
Welfare State, that the concerned wife should be required to
oppose the divorce in spite of irretrievable grounds and prefer
to continue to live in a miserable condition because there is
none to help her to nullify the likely hardships (Mainly
Financial). Though these days, there may be some wives who
might be misusing the laws to their advantage, by and large it is
the husbands who are blameworthy and hence we must orient
our actions keeping only this aspect in view. The Welfare State
must be the first to go to the help of the aggrieved wife instead
of providing this power to her to oppose to remain forever in
the miserable condition.
(35) When a case comes to the stage of the court of law, there is
already a break in the relationship by way of the place of
residence and the consequential financial hardship has already
--------------------------------------- 20
started on the part of the wife and the children if they have gone
with their mother. This necessarily needs immediate and urgent
attention of the court.
(36) Let the divorce be granted immediately on the filing of the case
but if the wrong doer is not so severely punished that other
prospective wrong doers must shudder in their hearts even at
the very thought of doing anything wrong to anybody, then this
provision will be misused by unscrupulous people. So, the
mutual consent needs to be dissected thoroughly.
(37) The Bill is just another gender biased law open to massive
misuse. This Bill does not care that a child would be forced to
be brought up in a broken family, and a father would not have
any legal right, even to save his own marriage, under this Bill,
even for the sake of his own child.
(39) Providing the wife with all the control in a divorce case will
only help in alienating father from their children.
(40) The Bill essentially grants freedom and happiness to wives
through a divorce but is totally silent on how the false and
frivolous cases that are filed by wives be dealt with, even when
the wife gets the divorce and happily remarries.
(41) There would be cases where the husband is all wiling to save
his marriage, so that his child can have both the parents, but
under the present format of the Bill, the husband will not have
any legal remedy to save his own marriage, even for the sake of
his own child.
--------------------------------------- 21
(44) A Gender neutral shared child custody and parenting law must
be drafted and implemented nationwide before this Marriage
Laws Amendment Bill is even contemplated. The repercussion
of the amendments of this will be that after the quick divorce
the wife will have little interest in even attending court hearings
thereby alienating the child forever from the hapless father.
Alternately a separate section can be inserted explicitly stating
that child custody cases must be resolved to the satisfaction of
both the parties before divorce is granted.
(45) Provide a clear and objective definition of "Financial Hardship"
so that this term is not interpreted in a wrong way and divorces
are not sold by wives. All other maintenance cases filed by the
wife, like Section 24, CrPC 125, Domestic Violence etc.,
should not be allowed to continue, blocking the judicial
dockets, as the relief sought in all of them, will also be
available in this Bill.
(46) Create objective parameters for calculating financial assistance
like tenure of the marriage and relative sacrifice made by the
parties in the marriage.
(47) Reduce separation period from 3 years to 1 year under Section
13C - Petition for divorce only after 1 year of marriage.
(48) Include condition of closing child custody litigation before
granting divorce under Section 13C, so that rights of child to
seek the involvement of both the parents are not taken away
from it.
--------------------------------------- 22
st
(49) The proposed Bill totally ignores the Law Commission's 71
report and gives no reasonable justification of choosing the
period of separation as 3 years instead of 5 years as suggested
st
by Law Commission's 71 report. It is extremely unfortunate
that it seems that such a Bill and a clause has been hurriedly
introduced, without any public debate.
(50) This Bill would be widely misused as the husband will be
forced to 'buy' a divorce, while the wife can choose to walk out,
at her whims and fancies. Moreover this Bill totally excludes
the possibility that the husband can also face financial hardship.
The current concept of gender neutrality like that of Section 24
of the Hindu Marriage Act which takes into consideration that
both, the husband and the wife can face financial hardship has
been totally ignored in this Bill.
(51) The Government is forcing a Divorce on an unwilling husband
just because the wife want it and thus the husbands will have
absolutely no legal remedy, relief or right, even to oppose the
same, even for the sake of his children.
(52) This Bill is totally unconstitutional and it takes away all the
rights of the husband, even to defend himself or even to save
his own marriage. A wife would stay away from the husband
and would automatically get a divorce by default after 3 years,
without any fault of the husband who would also have no right
or say altogether, or even have any right to defend him.
--------------------------------------- 23
(53) Interestingly, this Bill is totally silent on the rampant misuse of
498A. At present, under Mutual Divorce format, the wife goes
for quashing of all cases before grant of divorce, under mutual
consent. However as per the present format of this Bill, the
498A cases would continue for years on. Thus the Bill should
have a provision to quash cases between the parties before grant
of divorce under 13C as it happens presently.
(54) That special provision should be made in the Marriage Laws
(Amendment) Bill, 2010, to ensure that both spouses may
oppose the grant of a decree on the ground that the dissolution
of the marriage will result in grave financial hardship to them
and that it would in all the circumstances be wrong to dissolve
the marriage, with the amount of financial hardship, being
decided by the Court, based on the merits of the case.
(55) It is suggested that the father must be assigned the care and
custody of child(s) where the mother has been proved unable to
maintain them, is of a dubious behavior, has lost her rapport in
society on the basis of a corroborated evidence and facts.
(56) "Irretrievable Breakdown" should be spelt out clearly and may
include the following:-
" That the respondent has behaved in such a way that the
petitioner cannot reasonably be expected to live with the
respondent;
--------------------------------------- 24
" That the respondent has deserted the petitioner for a
continuous period of at least three years immediately
preceding the presentation of the petition;
" That the parties to the marriage have lived apart for a
continuous period of at least two years immediately
preceding the presentation of the petition.
" That no reasonable probability remains of the spouses again
living together as husband or wife for mutual comfort and
support.
(57) Where the petition is based on the "living apart" facts, the court
may refuse to pass a decree if the dissolution of the marriage
will result in "grave financial or other hardship to the
respondent" and that "it would in all the circumstances be
wrong to dissolve the marriage."
(58) A decree of divorce may be refused if the court feels that there
is a reasonable likelihood of resumption of cohabitation.
(59) Introducing irretrievable breakdown of marriage as a ground for
divorce in the Hindu Marriage Act and the Special Marriage
Act at this time, would cause irreparable harm to women
because of the absence of any laws governing division of
matrimonial property. A woman's negotiating power and her
rights to her matrimonial property would be severely diluted.
As such provisions for safeguarding economic security for
women will have to be built into the proposed legislation.
--------------------------------------- 25
(60) The proposed Bill only speaks of maintenance to children and
is silent on the issue relating to division of property.
(63) In such situations where the woman is vulnerable, we expect
that the courts would refrain from granting an ex parte decree.
(64) 'Irretrievable breakdown of marriage' as a ground for divorce in
a marriage and the power given to the wife in such a situation
should be applicable to all religious and not specifically Hindu.
(65) All grants by the Government, whether in terms of land or
housing, should be in the name of both the spouses.
(66) Quashing all cases between the husband and wife while
granting divorces under Irretrievable Breakdown Marriage,
would immediately reduce the crore of pending cases in courts
and will provide relief to crores of aged mothers and sisters
condemned to a lifetime of judicial apathy in Indian courts due
the Indian gender laws.
(67) Reconsider the stipulated time period of three years of 'living
apart' to a lesser duration keeping in mind the objective to
mitigate the ordeal for an estranged couple.
(68) Include 'living in the same household' as 'living apart'. This will
ensure that facts and circumstances typical to each case will be
given adequate space and consideration.
(69) For divorce on irretrievable breakdown of marriage or divorce
on any other ground, introduce as a precondition in the law,
distribution of marital assets based on 'community of property’.
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CHAPTER-III
Deliberations of the Committee
The Committee heard the presentation of the Secretary, Legislative
th
Department of the Ministry of Law and Justice on the Bill on 17
September, 2010 and recorded the views of Secretary, Ministry of Women
th
and Child Development during its meeting held on 28 September, 2010 on
the Bill. Apart from it, the Committee received inputs from the non-official
witnesses namely National commission for women and some
thth
NGOs/individuals during its meetings on the 11 and 16 November, 2010
in Delhi.
Legislative Department (Ministry of law and Justice)
2. The Committee heard the Secretary, Legislative Department of the
th
Ministry of Law and Justice on 17 September, 2010. The Secretary while
giving an extensive power-point presentation on the Bill apprised the
Committee of the circumstances that necessitated the introduction of the Bill
and also the various provisions of the Bill. The Secretary, Legislative
Department assured the Committee that provisions of right to wife to oppose
the divorce on the ground of financial hardships and provisions regarding the
maintenance to children have been incorporated in the proposed Bill to
safeguard the interests of women and children while introducing
irretrievable breakdown of marriage as a new ground for granting the
divorce.
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Ministry of Women and Child Development
3. The Committee heard the views of Secretary, Ministry of Women and
th
Child Development during its meeting on 28 September, 2010. The
Secretary, Ministry of Women and Child Development apprised the
Committee that the Ministry supports the Bill as it finds that inclusion of
irretrievable breakdown of Marriage as a new ground for divorce is a
facilitative provision in cases where the Marriage between the parties has
broken down irretrievably and completely and prevent the multiplicity of
litigations.
4. However, the Secretary indicated some issues that need to be
addressed if the rights of women and children are to be protected after the
enactment of Bill. The issues are;
" The proposed Bill cast a greater responsibility on the courts
particularly in case of the interpretation the situation of
"irretrievable breakdown". Thus Courts have to exercise care and
caution in cases where they feel that the husband has deserted or
abandoned the wife and filed a petition under this section after
living separately for three years.
" In situation where the woman is vulnerable the courts should
refrain from granting ex-parte decree.
" The provision of section 13(E) of the proposed Bill should be
interpreted as or an express 'inclusion' may be made in the
provision to include the children adopted by the parties to the
marriage.
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" The waiting period of six months after the presentation of a
petition for grant of divorce should not be abolished because it
provides the parties the time to change their mind vis a vis the
petition of divorce.
Non-Official Witnesses:
5. Given the wider legal and social implications of the Bill, the
Committee decided to consider the views of all stakeholders on the Bill. For
the purpose, the Committee invited some individuals/organizations to appear
before the Committee for tendering oral evidence. The Committee heard
the following non-official witnesses (Individuals/Organizations) :-
" National Commission for Women
" MAJLIS, Center for Women's Rights Discourse & Legal Initiative
" Gender Human Rights Society
" Lawyers Collective Women's Rights Initiative
" Mothers and Sisters Initiative
" All India Democratic Women's Association
" Save Family Foundation
" Children's Rights Initiative for Shared Parenting (CRISP)
" Shri. SR Abrol, a concerned individual.
6. Committee's deliberations with the above-mentioned
organizations/individuals witnessed divergent opinions on the provisions of
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the Bill and other maters associated with the matrimonial disputes. The
issues that emerged during the Committees' interaction with them may be
categorized under the following points;
On the Bill
¾ New Grounds for the divorce is in larger social interest
¾ Section 13D (safeguard interest of wife/children)
(i) Should be gender neutral
(ii) Term Financial hardship should be defined
(iii) Apprehensions that this provisions may lead to eventuality
buying of a divorce by the husband as many a times, wives
are also at fault.
¾ To define the term "Irretrievable Breakdown of Marriage".
¾ Retention of the waiting period of six months.
¾ Reduction of the time period of separation mandated for
seeking divorce.
Other Related Matters
" The Bill should provide for division of matrimonial property.
" The Bill should provide for custody of children and visitation
rights.
" Time period may be fixed for disposal of petition for divorce under
the new ground.
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" Law to provide for recovery of maintenance.
" To ensure that there are no ex-parte orders of divorce.
" In foreign countries where the provision for irretrievable
breakdown of marriage as a ground for divorce is prevailed, there
are sufficient laws to protect the economic interests of women
" Entitlement from the State should be essential for separated
women where there is no property and no maintenance can be
granted.
" Proposed amendments tend to further weaken the plight of
women/children in rural India.
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CHAPTER-IV
Committee’s Observations/ Recommendations
Having analysed the various provisions of the Bill and having
considered the written submissions received by the Committee and the views
of the witnesses who tendered their oral evidence, the Committee is of the
view that the subject matter of the Bill and the amendments proposed therein
are of immense public importance with wide ranging legal and social
consequences. The Committee, however, is in agreement with the broad
objective of the Bill, i.e., introduction of ‘irretrievable breakdown of
marriage’ as a new ground for grant of a decree of divorce. The Committee
is also in agreement with the thought that if a marriage has ceased to subsist
and has reached a stage where it is not felt possible to bring back together
the parties to the marriage, it would be in the interest of all if the marriage is
dissolved.
2. However, the Committee though being in agreement with the rationale
behind the Bill, feels that some of its clauses which have vital implications
need to be reviewed. The Committee strongly feels that there are certain
vital social and legal issues on the subject that need to be addressed before
this new ground of divorce is introduced.
Clauses 2 and 6 of the Bill
(Doing away with the waiting period of 6 months before moving a joint
motion in case of divorce by mutual consent)
3. While deliberating on the Bill, the Committee has come across a
strong view expressing apprehension about the likely adverse social impact
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in doing away with the cooling off period of 6 months for moving a joint
motion after filing a petition for grant of divorce by mutual consent. The
Committee during its deliberations has not come across any view expressing
hardship over the existing provisions providing for a cooling off period in
case of divorce by mutual consent. The existing provision of law seems to
function well as it provides an opportunity to the parties to a marriage to
think coolly before finally moving jointly for divorce. The Committee also
does not see much linkage between this amendment and the main
objective of the Bill, i.e., introduction of a new ground for grant of a
decree of divorce. The Committee, therefore, is of the view that the
existing provisions of law for divorce by mutual consent are fair and
reasonable and the prevailing cooling off period be retained so as to
protect and preserve the institution of marriage. The Committee,
accordingly, is not in agreement with clauses 2 and 6 of the Bill.
Clauses 3 and 7 of the Bill
(Introduction of irretrievable breakdown of marriage as a new ground
of divorce)
4. The Committee during the course of its interaction on the Bill with the
various stakeholders did not come across much resistance per se to inclusion
of irretrievable breakdown of marriage as a new ground of divorce. The
Committee too is of the opinion that there is no point in prolonging a
marriage where parties to the marriage are unable to live as husband and
wife. But the written/ oral submissions made before the Committee have
brought forth serious apprehensions regarding the likely misuse of the
proposed new ground of divorce, as formulated in the Bill, against women,
particularly those in the rural areas. Going by the provisions of the Bill, the
proposed Section 13C(1) of the Hindu Marriage Act, 1955 and Section
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28A(1) of the Special Marriage Act, 1954 simply provide that either party to
a marriage may file a petition for dissolution of marriage by a decree of
divorce on the ground that the marriage has broken down irretrievably. One
condition prescribed in the Bill for grant of a decree of divorce on this
ground is that the court hearing the petition has to be satisfied that the parties
to the marriage have lived apart for a continuous period of not less than 3
years. Thereafter, if the court is satisfied on the basis of ‘all the evidence’
that the marriage has broken down irretrievably, it shall grant a decree of
divorce. In the opinion of the Committee, the Bill should provide for some
more safeguards so that the new ground for divorce is not misused by either
party to the marriage. In the Committee’s view, it is important to note that
either party to the marriage can move a petition for divorce under this new
ground and as the provisions of the Bill presently stand, there is no bar to
court’s granting decree of divorce, ex-parte. In this backdrop, the
Committee has serious apprehension with regard to the misuse of this
ground, particularly against the women in rural areas where women are not
so well aware. The Committee, accordingly, recommends that the Bill
should provide for some safeguards so that the new ground for divorce
is not misused. The Committee also recommends that the Government
may consider defining the term “irretrievable breakdown of marriage”
in the Bill so that some uniform standards are followed in dealing with
divorce petitions by the Courts.
5. Coming to the protection of the rights of wife and children, the
Committee again is not satisfied with the provisions of the Bill in this
regard. As per the proposed section 13D(1) of the Hindu Marriage 1955 and
Section 28B(1) of the Special Marriage Act, 1954, a wife has been given a
--------------------------------------- 34
right to oppose grant of decree of divorce if the same results in ‘grave
financial hardship’ to her and ‘it would in all circumstances be wrong to
dissolve the marriage’. The Committee notes that the term ‘grave
financial hardship’ appearing here is capable of varied interpretation.
Further, it may be difficult for the wife to satisfy the court that it would
‘in all circumstances be wrong to dissolve the marriage’. Not only this,
the provisions of the Bill talk of ‘grave’ financial hardship, i.e., divorce
may not be allowed on this ground if the wife is being subjected to a
‘grave’ financial hardship. Does it mean that court may proceed with
the grant of a decree of divorce on this ground despite the fact that the
wife may be put to ‘financial hardship’ and not “grave” financial
hardship? The Committee, accordingly, recommends that the term
“grave financial hardship” may be defined so that there is less of
ambiguity. The Committee further recommends a review of these
provisions of the Bill so that the interests of the women are better
safeguarded in the divorce proceedings in the court.
6. In the similar manner, the Committee also does not find acceptable the
provisions of the Bill relating to restrictions on decree for divorce affecting
children. As per the proposed Section 13E Hindu Marriage Act 1955 and
Section 28C in the Special Marriage Act 1954, the court, before passing a
decree of divorce under the new ground, has to satisfy itself that adequate
provisions for maintenance of ‘children born out of the marriage’ has been
made consistently with the financial capacity of the parties to the marriage.
The Committee finds that the proposed Bill covers only those children
who are born out of the marriage, thereby leaving out the case of
--------------------------------------- 35
‘adopted’ children. The Committee would like the Government to clear
their position with regard to the adopted children also in the Bill.
7. During the course of its deliberations on the Bill, the Committee’s
attention has been drawn to another very vital aspect of the Matrimonial
Law which relates to the rights of the wife to matrimonial property in case of
divorce. Quite a few of the women’s organizations have emphasized on this
aspect before the Committee and demanded that while granting divorce, it
needs to be ensured that the women get their share atleast in the assets/
properties which the parties to the marriage have acquired during the
subsistence of the marriage. The Committee finds logic in this demand of
the various women’s organizations. It is generally seen that in majority of
cases women are left with very little to fall back upon after the divorce and
quite often they also have to bear the burden of the children born out of the
wedlock. In such situations, it seems quite natural for women to feel cheated
when they are left to their fate without any roof or financial support although
during the subsistence of marriage they might have contributed in varied
forms in the matrimonial family in the prime of their age. This is more true
in case of working women. Accordingly, the Committee feels that there
should be some effective legal mechanism so that the women atleast get
their share in the matrimonial property which has been acquired during
the subsistence of marriage. The Committee, accordingly, recommends
the Government to make adequate provisions in the Matrimonial Law
to ensure that the courts, while adjudicating on divorce petitions, also
decide upon women’s share in the matrimonial property while granting
divorce so that they are not deprived of the assets/properties in which
they have contributed during the continuance of marriage. The
--------------------------------------- 36
Committee is strongly of the view that liberalization of the laws of
divorce should essentially be accompanied with appropriate provisions
recognizing the legitimate rights of the women on the matrimonial
property/assets atleast, in which they have their share of contribution.
8. The Committee, accordingly, despite being in agreement with the
rationale of the Bill, i.e., adding ‘irretrievable breakdown of marriage’
as a new ground of divorce, is not in agreement with the various clauses
of the Bill, be it doing away with the cooling off period in case of divorce
by mutual consent or the conditions enumerated in the Bill for granting
divorce on the ground of ‘irretrievable breakdown of marriage’. The
Committee feels that these provisions are liable to be misused against
women. The Committee, accordingly, recommends that the Government
should reconsider the various clauses of the Bill keeping in view the
Committee’s apprehensions and suggestions and a revised
comprehensive Bill may be brought thereafter.
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