THE MARRIAGE LAWS (AMENDMENT) BILL, 2010

thanks mr anandangan,

you are very correct.

pl analize more and every step of the bill.

The required proof, to conclude about 'Irretrievable breakdown' in a case, is deliberately and inadvertantly made VERY simple that one may just call it a farce and may reduce to a mere registraton of 'breakdown' in family court.

This is going to increase the activity in high courts and supreme courts that it might require to set up new 'family high courts' and a new 'family supreme court' and dismantle 'family district courts' !!!

surprising. it might be.

Please look at the following sentence:

 "mera ye manna hai ki sharab pina bilkul sahi nahi. piooonga to muze kripaya dand dijiye"

If we propose a SMALL enhancement by introducing a bill that the 'full stop' shall be substituted after 'sahi' instead of 'nahi' in the text.

then sentence becomes......

 "mera ye manna hai ki sharab pina bilkul sahi. nahi piooonga to muze kripaya dand dijiye"

Now a SMALL question is that: Is it a SMALL enhancement in the sentence or it is a complete overhoul of the same.

UNFORTUNATELY the bill introduced is also trying to mislead the Parlmetarians as well as whole of india in the same way!!,  especially if you look at the changes proposed in 'Section 13B subsetion(2) of HMA 1955'!!!!
Proposed Changes in the Section 13B(2) are totally unconstitutional because they are being made WITHOUT instituting any enquiry, any commission or involving any subject matter experts. There was definitely WISDOM applied behind having a double check by Hon. Court in 'mutual consent divorce' for the justice to prevail.

many women's organization, even delhi highcourt opposing the bill on various grounds.

we have to study the logic in favour and against the bill

It is now far to be implemented. Do not take tension from right now. The bill is now at rajya sabha; From rajya sabha to lok sabha; If it passes, Thereafter will send to president; Thereafter published it to gazette. Now it is act.

Might be some more steps may be there - which not known to me. In any of the above steps, bill may be failed.

ANALYSIS : PART II.

Divorce by mutual consent.

13B.

(1)

A petition for dissolution of marriage by a decree of divorce, - may be presented.

Place where to file a petition:- district court

on the ground that:-

i) A petition filed under sub-section (1) of sec 13B of the HMA;

ii) by both the parties together

iii) They have been living separately

iv) For a period of one year or more

v) They have not been able to live together

vi) They have mutually agreed that the marriage should be dissolved.

Duty of the court

(2)

i) Upon receipt of the petition;

ii) The court shall, on being satisfied;

iii) After hearing the parties;

iv) After making such inquiry as it thinks fit;

v) That a marriage has been solemnized;

vi) The averments in the petition are true;

Vii) Pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Divorce on ground of irretrievable breakdown of marriage

13C

(1)

i) A petition for dissolution of marriage by a decree of divorce;

ii) Place to be presented - the district court;

iii) By either party to a marriage;

iv) Ground - the marriage has broken down irretrievably.

Duty of the court

(2)

I) The court hearing a petition referred to in sub-section (1)

ii) Shall not hold the marriage to have broken down irretrievably

iii) Unless it is satisfied that the parties to the marriage have lived apart

iii) For a continuous period of not less than three years immediately preceding the presentation of the petition.

(3)

i) If the court is satisfied, on the evidence, as to the fact mentioned in subsection (2)

ii) Unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce.

(4) In considering, for the purpose of sub-section (2), whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months’ in all) during which the parties

resumed living with each other, but no other period during which the parties lived with each other shall count as part of the period for which the parties to the marriage lived apart.

(5)

For the purposes of sub-sections (2) and (4), a husband and wife

i) Shall be treated as living apart unless they are living with each other in the same household,

ii) Reference in this section to the parties to a marriage living with each other shall be construed as reference to their living with each other in the same household.

13D.

Wife’s right to oppose petition on ground of hardship.

 (1)

Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 13C,

i) She may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that

ii) It would in all the circumstances be wrong to dissolve the marriage.

(2)

Where the grant of a decree is opposed by virtue of this section, then,—

(a) if the court finds that the petitioner is entitled to rely on the ground set out in section 13C; and

(b) if, apart from this section, the court would grant a decree on the petition, the court shall consider all the circumstances,

including the conduct of the parties to the marriage and

the interests of those parties and

of any children or other persons concerned, and

if, the court is of the opinion that the dissolution of the marriage shall result in grave financial hardship to the respondent and that it would, in all the circumstances, be wrong to dissolve the marriage, it shall dismiss the petition, or

in an appropriate case stay the proceedings until arrangements have been made to its satisfaction to eliminate the hardship.

Restriction on decree for divorce affecting children.

13E.

The court shall not pass a decree of divorce under section 13C unless the court is satisfied that

adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.

Explanation.— In this section, the expression “children” means—

(a) minor children;

(b) unmarried or widowed daughters who have not the financial resources to support themselves; and

(c) if apart from this section the court would grant a decree on the petition, the court

shall consider all the circumstances, including the

conduct of the parties to the marriage

and the interests of those parties and of any children or other persons concerned, and

if, the court is of the opinion that the dissolution of the marriage shall result in grave financial hardship to the respondent and that it would in all the circumstances be wrong to dissolve the marriage,

it shall dismiss the petition, or

in an appropriate case stay the proceedings until arrangements have been made to its satisfaction to eliminate the hardship.

Sec 13C (5)

For the purposes of sub-sections (2) and (4), a husband and wife

i) Shall be treated as living apart unless they are living with each other in the same household,

ii) Reference in this section to the parties to a marriage living with each other shall be construed as reference to their living with each other in the same household.

This sec deals with two things, namely,

a) Living apart;

b) Living together;

Though the word ‘Living together’ very carefully avoided, but this words are the most appropriate word for the meaning of the bill wants to do.

The test is:-

·        Whether the spouses are ‘living apart’ or ‘living together’.

The point confirming the status is - ‘same household or not’.

If they living with the same household, - it is ‘living together’.

If they living with the different household, - it is ‘living apart’.

There is a formula to count the time period of ‘living apart’.

There is no specific definition of the words

‘same household’  & ‘different household’

in the bill.

Lack of definition of the word ‘household’ will allow the judges to explain it, according to their will. Also there is a chance to construct different meaning by the different courts.

Sec. 13D.

Wife’s right to oppose petition on ground of hardship.

Wife’s right?

Why?

Why not the ‘spouse’s right’?

Why not the ‘respondent’s right’?

Because the words, ‘spouse’ or ‘respondent’ purely gender neutral words, whereas the word ‘Wife’ is gender biased. It means the female part of the spouses only and a rejection of male part of the spouses.

The word deliberately used here to deprive the male portion of the spouses from his legal right. A man again deprived from his legal right under sec 24 & 25 of the HMA. Sorry to say that he is again a victim of gender neutrality.

Here I must remember my friend Mr D Arun who is keen to have a gender neutral law and fighting for the same in his own way.

13D (2) B – ‘all the circumstances’ ‘grave financial hardship’ neither defined nor explained.

I would seggest that 'please look into the wordings in the section 13C in subclauses (2) and (3). wordings used in Section 13C are intensionally different than those used in section13B so that the benefit of interpretation is also availed(ironically)

use of words 'hold the marriage to have broken down irretrievably' is questionable! As It suggests that 3 yr separation is not just a 'prerequisite' before climbing the doorsteps of judiciary and 'factum of separation & its continuance till date' is a 'sufficient proof'  (in 13B, 1 year separation is just a prerequisite. Also in 'desertion' 2 yr seperation is also a prerequisite. Even for newly married couple  1yr elapsed time is a prerequisete before going to court. BUT the prerequites, such as time etc, are always condonable if the party presents the compelling grounds to condone the such prerequisites.)

Main issue here is that 'factum of separation & its continuance till date' is deemed to be a sufficient  evidence (In fact it is reasserted by Section 13C (3) where it talks of evidence and also fingerpoints back to Section 13C (2) as: "If the court is satisfied, on the evidence, as to the fact mentioned in subsection(2), then, .....)

Hence the initial wordings in Section 13C (3) as : "If the court is satisfied, on the evidence, ....." is a joke. Because there remains hardly anything for the Hon. Court to satisfy itself from the petitioner's side. I believe, once the Councellor gives te Report that 'factum of separation has occurred and continued till date and no possibility of reconciliation' and if the petitioner also prays in the Petition to condone the 3 yr separation, nothing remains to be investigated from the petitioner's side.

Now, where is the chance that the Respondent has? and is there anything that Hon. court  going to verify anything from the Respondent's side in his WS?

For that.....

The subsequent wording in the Section 13C (3) are as bound to be stretched in interpretation as: "unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce".

The Wordings "is satisfied, on the evidence" in blue and "is satisfied, on all the evidence" in red suggest a difference that word ALL is inserted.

Question posed to this forum as......

Is the word ALL suggestive that the Hon. Court is going to listen to Respondent's side also on merits that she/he wants to save her/his marriage?

OR  

Is the Hon. Court going to go ahead with criteria for 'sufficiency of proof' to 'conclude', which is already mentioned in subclause (2)  & which essentially says that 'factum of separation & its continuance till date' is a 'sufficient proof'? 

Hence If the respondent's plea is anyways going to be futile, then why would the Respondent even bother to reply to the Petition in trial court? 

“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”

Substituted by the words

"Upon receipt of a petition under sub-section (1)"

Previously sec (2) of 13 B had two compulsory time bar, ‘six months’   &  ‘eighteen months’.

According to the act, nobody will obtain divorce before six months. Within eighteen months, ie approximately one year, the parties jointly has to decide whether they want the same or not. If they do not decide jointly within eighteen months, the joint petition will be rejected.

These time bar has been removed by the words - "Upon receipt of a petition under sub-section (1)", rest of the section 13 B are as it is.

mr anandangan,

noted yr points. thanks.

would like to know if this bill has been notified in the gazette? from when will this become valid?

the bill not yet puted before the perliament.

only cabinet ministry approved.

oh i see. i remember to have read that the rajya sabha had cleared it. also pls clarify - if a marriage is dissolved on mutual consent with heavy coditions from the wife's side like demanding money & also no visitation rights & the husband accepts to both & a decree is also passed to that effect. can the husband after sopmetime go back & pray for visitation rights to the court? will the court allow such a petition? have there been instances earlier when no visitation rights given during decree & then one party later realises that he wants to see the children and is allowed?