The proposal to introduce 'irretrievable breakdown of marriage' as a
ground for divorce is aimed at giving a spouse the right to walk out of a
wrecked marriage.
But allowing one of the parties to take a decision to end a relationship which is basically contractual, might lead to victimisation of the other party. It is indeed traumatic for a spouse to be forced to continue in a practically non-existent marriage but dissolving such a relationship without the consent of the other spouse, who might not be at fault, could amount to injustice.
The incorporation of this additional ground for divorce in the Hindu Marriage Act and the Special Marriage Act would, for the first time, allow a spouse to unilaterally seek dissolution of an unhappy marriage on the ground that it cannot be salvaged. At present, this is allowed only on faults of adultery, cruelty and desertion by the other party. There is no doubt that divorce based primarily on fault cannot deal with incompatible marriages but such situations are by and large taken care of by the provision permitting divorce with mutual consent.
The proposal might harm the institution of marriage and lead to victimisation of women. It empowers a court to allow an application for dissolution of a broken marriage if the parties had been living apart for three or more years.
However, there is a proposal for giving wives the exclusive right to oppose such petitions filed by husbands. Though this might benefit a certain class of women, it would hardly mean anything to a majority of women in the country.
There have been instances of women being turned out of matrimonial homes for a variety of reasons, especially for not bringing adequate dowry. Such cases seldom get reported, in the hope in the hope of reconciliation. Husbands, in such cases, would have an advantage with wives having nothing on record to repel the argument of irretrievable breakdown of marriage by him.
Thus, the benefits of the proposed amendments, in the absence of more safeguards, are outweighed by the dangers they pose. More so, when the existing provisions have already been able to substantially deal with the problem. A spouse can seek divorce on the ground of desertion if the other has abandoned him or her for over two years.
Mutual consent is the answer to the argument that a non-existent relationship should not be kept alive on paper. If a marriage breaks down, the parties to the marriage should jointly take a decision. Leaving the decision to one of them would make all other provisions of divorce virtually meaningless. A party would claim that the marriage has broken down rather than try to prove fault of the other party. The courts have already expanded the meaning of cruelty to include almost everything- denying sex, abusing, not staying with the husband and even refusing to cook food for the husband.
A case of irretrievable breakdown would squarely fall within the meaning of desertion and cruelty but a party at fault cannot seek divorce on these grounds. With irretrievable breakdown being added when desertion was already a ground for divorce, the former would have to be interpreted in a liberal manner.
In what could shed light on the problems in store, the Supreme Court in 2006 dissolved a marriage on the ground of irretrievable breakdown using its extraordinary powers of going beyond law under Article 142. Ironically, the husband, who knew the girl closely before deciding to marry, claimed that their marriage had broken down due to the basic difference in their social status and inability of the wife to adjust to a middle class life. Doesn't this make all inter-class marriages vulnerable?
'No fault divorce' would only increase the divorce rate in the country. This would have been fine if starting a new life was easy. This is not so in a country where most marriages are arranged.
Backing family ties, Justice Krishna Iyer, in a judgment in 1978, stressed that the erotic doctrine of 'sip every flower and change every hour' and the philosophy of philandering self-fulfilment had to be combated on a militant basis.
Media trial unites the jurists of our time
The media is virtually on trial before the Supreme Court for its 'excesses'. A Constitution bench of the SC is considering an application seeking guidelines for the media on reporting of matters that are subjudice. But there is a stark contrast between the aggression with which critics react to, what is often termed as, trial by media and the non-adversarial nature of the trial of the media before the court.
Eminent lawyer Fali S Nariman, appearing for none other than the applicant company itself, set the tone for the hearing by stating at the outset that the court was empowered to frame normative guidelines but not guidelines which could be enforced as a law.
He was followed by Soli J Sorabjee, G E Vahanvati and Rajeev Dhawan, all of whom defended media freedom. Many more are likely to follow as the hearing progresses.
Initially many journalists were apprehensive but their concerns have now taken a backseat with the legal stalwarts of our time taking up cudgels for the media.
The SC, being a court of record, has certain inherent powers and could well decide to frame guidelines for the media on its own. But it is presently considering guidelines on an application filed by a company.
A reading of the application which is being heard by the Constitution bench, however, shows that it had been filed on the directions of the court itself.
House for Mr Nariman has a rich foundation
Solicitor General Rohington Nariman couldn't have been allotted a better official bungalow in the national capital. Nariman has been given the bungalow which once housed the first Solicitor General of India, C K Daphtary.
The address - 3, Krishna Menon Marg - also makes him a neighbor of Chief Justice S H Kapadia.
Daphtary, who features in the Bar Council of India's list of legends, was appointed the first Solicitor General in 1951 and was subsequently made the Attorney General in 1963.
The bungalow was recently vacated by former defence minister George Fernandes, who had been living there since 1998.
'Hindu link' to terror law
A controversial proposal by the government to include a Hindu Undivided Family (HUF) within the definition of a person in the existing antiterror law has been opposed by Parliamentarians.
The Parliamentary Standing Committee on Home Affairs has taken exception to insertion of section 2(i)(eb) to the Unlawful Activities (Prevention) Act to define "person" as an individual, a Hindu Undivided Family (HUF), a company, a firm etc. The government, which proposes to amend the law to deal with terror funds, stressed that the definition was consistent with the definition in the Income Tax Act.
The committee, however, pointed out that incorporation of HUF in the Income Tax Act was meant to give some tax relief to people falling in the category. The committee said a person should mean what it does in common parlance as well as in criminal law.
http://indiatoday.intoday.in/story/easy-divorce-a-threat-to-family-ties/1/182447.html
But allowing one of the parties to take a decision to end a relationship which is basically contractual, might lead to victimisation of the other party. It is indeed traumatic for a spouse to be forced to continue in a practically non-existent marriage but dissolving such a relationship without the consent of the other spouse, who might not be at fault, could amount to injustice.
The incorporation of this additional ground for divorce in the Hindu Marriage Act and the Special Marriage Act would, for the first time, allow a spouse to unilaterally seek dissolution of an unhappy marriage on the ground that it cannot be salvaged. At present, this is allowed only on faults of adultery, cruelty and desertion by the other party. There is no doubt that divorce based primarily on fault cannot deal with incompatible marriages but such situations are by and large taken care of by the provision permitting divorce with mutual consent.
The proposal might harm the institution of marriage and lead to victimisation of women. It empowers a court to allow an application for dissolution of a broken marriage if the parties had been living apart for three or more years.
However, there is a proposal for giving wives the exclusive right to oppose such petitions filed by husbands. Though this might benefit a certain class of women, it would hardly mean anything to a majority of women in the country.
There have been instances of women being turned out of matrimonial homes for a variety of reasons, especially for not bringing adequate dowry. Such cases seldom get reported, in the hope in the hope of reconciliation. Husbands, in such cases, would have an advantage with wives having nothing on record to repel the argument of irretrievable breakdown of marriage by him.
Thus, the benefits of the proposed amendments, in the absence of more safeguards, are outweighed by the dangers they pose. More so, when the existing provisions have already been able to substantially deal with the problem. A spouse can seek divorce on the ground of desertion if the other has abandoned him or her for over two years.
Mutual consent is the answer to the argument that a non-existent relationship should not be kept alive on paper. If a marriage breaks down, the parties to the marriage should jointly take a decision. Leaving the decision to one of them would make all other provisions of divorce virtually meaningless. A party would claim that the marriage has broken down rather than try to prove fault of the other party. The courts have already expanded the meaning of cruelty to include almost everything- denying sex, abusing, not staying with the husband and even refusing to cook food for the husband.
A case of irretrievable breakdown would squarely fall within the meaning of desertion and cruelty but a party at fault cannot seek divorce on these grounds. With irretrievable breakdown being added when desertion was already a ground for divorce, the former would have to be interpreted in a liberal manner.
In what could shed light on the problems in store, the Supreme Court in 2006 dissolved a marriage on the ground of irretrievable breakdown using its extraordinary powers of going beyond law under Article 142. Ironically, the husband, who knew the girl closely before deciding to marry, claimed that their marriage had broken down due to the basic difference in their social status and inability of the wife to adjust to a middle class life. Doesn't this make all inter-class marriages vulnerable?
'No fault divorce' would only increase the divorce rate in the country. This would have been fine if starting a new life was easy. This is not so in a country where most marriages are arranged.
Backing family ties, Justice Krishna Iyer, in a judgment in 1978, stressed that the erotic doctrine of 'sip every flower and change every hour' and the philosophy of philandering self-fulfilment had to be combated on a militant basis.
Media trial unites the jurists of our time
The media is virtually on trial before the Supreme Court for its 'excesses'. A Constitution bench of the SC is considering an application seeking guidelines for the media on reporting of matters that are subjudice. But there is a stark contrast between the aggression with which critics react to, what is often termed as, trial by media and the non-adversarial nature of the trial of the media before the court.
Eminent lawyer Fali S Nariman, appearing for none other than the applicant company itself, set the tone for the hearing by stating at the outset that the court was empowered to frame normative guidelines but not guidelines which could be enforced as a law.
He was followed by Soli J Sorabjee, G E Vahanvati and Rajeev Dhawan, all of whom defended media freedom. Many more are likely to follow as the hearing progresses.
Initially many journalists were apprehensive but their concerns have now taken a backseat with the legal stalwarts of our time taking up cudgels for the media.
The SC, being a court of record, has certain inherent powers and could well decide to frame guidelines for the media on its own. But it is presently considering guidelines on an application filed by a company.
A reading of the application which is being heard by the Constitution bench, however, shows that it had been filed on the directions of the court itself.
House for Mr Nariman has a rich foundation
Solicitor General Rohington Nariman couldn't have been allotted a better official bungalow in the national capital. Nariman has been given the bungalow which once housed the first Solicitor General of India, C K Daphtary.
The address - 3, Krishna Menon Marg - also makes him a neighbor of Chief Justice S H Kapadia.
Daphtary, who features in the Bar Council of India's list of legends, was appointed the first Solicitor General in 1951 and was subsequently made the Attorney General in 1963.
The bungalow was recently vacated by former defence minister George Fernandes, who had been living there since 1998.
'Hindu link' to terror law
A controversial proposal by the government to include a Hindu Undivided Family (HUF) within the definition of a person in the existing antiterror law has been opposed by Parliamentarians.
The Parliamentary Standing Committee on Home Affairs has taken exception to insertion of section 2(i)(eb) to the Unlawful Activities (Prevention) Act to define "person" as an individual, a Hindu Undivided Family (HUF), a company, a firm etc. The government, which proposes to amend the law to deal with terror funds, stressed that the definition was consistent with the definition in the Income Tax Act.
The committee, however, pointed out that incorporation of HUF in the Income Tax Act was meant to give some tax relief to people falling in the category. The committee said a person should mean what it does in common parlance as well as in criminal law.
http://indiatoday.intoday.in/story/easy-divorce-a-threat-to-family-ties/1/182447.html
