Though
the Marriage Laws (Amendment) Bill, 2010, passed by the Rajya Sabha
last week, granting some women a limited right in their husband’s
property, is a step in the right direction, it falls short of
expectations. The right has been extended only to Hindu women and those
who marry under the Special Marriage Act and whose husbands have filed
for divorce on the ground of marriage breakdown. What was needed was a
separate statute (like the Protection of Women from Domestic Violence
Act) to protect the economic rights of all married women and not just of
a privileged few, and that too through convoluted clauses.
The Marriage Laws (Amendment) Bill is aimed at addressing two different concerns — making divorce easy and protecting the economic rights of women, but succeeds in doing neither. To waive the statutory six month “cooling period” for securing a divorce by mutual consent, when both parties desire it due to hardships caused to them, one did not need a major law reform. The family courts across the country were routinely doing this in cases where the parties made a joint application explaining the hardship. In 2002, a three-judge bench of the Supreme Court in the Anjana Kishore vs Puneet Kishore case had directed the courts to do away with this provision. The higher judiciary was also granting divorce on the ground of breakdown of marriage in specific cases of protracted litigation. In 1995, in the Romesh Chander vs Savitri case, the Supreme Court, while upholding the principle of marriage breakdown, had directed the husband to transfer the matrimonial home to the wife’s name at the time of divorce.
Even while puncturing holes in the bill, one must admit that it is an improved version of the earlier bill introduced unceremoniously in the Rajya Sabha in August 2010 and later referred to the Joint Select Committee. The urgency for the 2010 bill was to rectify the harmful precedent set by a ruling of the Supreme Court which concerned the daughter of Sushil Kumar Shinde, the Union home minister. The Supreme Court had, in 2009, upheld the ruling of the Bombay high court which had set aside an irregular divorce granted by the family court of Mumbai under rather peculiar circumstances, disregarding the provisions of law. So a bill was hastily introduced, touted as a “women friendly” bill as it would make divorce easy for women despite the fact that it did not make any financial provisions to safeguard their rights. Not surprisingly, the bill received the support of men’s rights groups, which, in itself, ought to have been a warning signal.
Proverbially, one swallow does not a summer make. The need to obtain a quick divorce and “move on in life” is a luxury enjoyed by only a microscopic minority of women who are independent with sufficient means or family backing. For the rest, marriage is an economic partnership, and its dissolution, especially one that disregards their non-monetary contribution to the household in the form of unpaid labour, deprives them of their shelter and sustenance, rendering them destitute. In fact, most women approach the courts for maintenance under Section 125 of the Criminal Procedure Code when they are abandoned by their husbands. When orders are passed in their favour, the husbands file divorce proceedings to spite them. But under the present system, the husband has to prove cruelty or desertion, which even in the hands of the most astute lawyers is not easy. It is at this stage that the woman gets an opportunity to negotiate for her economic rights and a husband, eager to obtain a divorce, may be willing to negotiate a lump sum financial settlement. But if divorce becomes a certainty, women will be deprived of this negotiating power and the state would then have to step in and make a statutory provision to make their lives financially secure.
Rather unfortunately, this dire need to protect women was overlooked by the various law commissions while recommending the introduction of irretrievable breakdown of marriage within the Indian context, though all countries which they mention in support of their recommendations have a property division clause attached to the breakdown clause. The first official mention of this provision is found only in the Report of the Joint Select Committee submitted to the Rajya Sabha in March 2011, after several women’s groups made written and oral depositions before it.
But the present bill has several provisions which are counterproductive. It stipulates that if a petition for divorce is pending before a court for over three years, the courts have the power to dissolve the marriage. But the provision to keep a petition pending for three years is not available in law as it lapses at the end of 18 months. Soon after a petition lapses, the party desiring divorce can file on the ground of marriage breakdown without having to wait for a further period of one-and-a-half years.
Second, even for obtaining divorce on “no fault ground”, evidence would have to be led to prove the three years separation. To make matters worse, it allows a period of not more than three months of cohabitation in between. Third, in order to avail of the provision of property division, the wife would have to file a separate “petition” rather than a simple “interim application”.
And the most contentious issue — adequate provision to remedy the hardship caused to the wife, would need lengthy and elaborate trial. If the couple could reach a consensus, they would have opted for a divorce by mutual consent. The fact that it has reached a stage of invoking the ground of breakdown of marriage is a sure sign that it will lead to protracted litigation. The courts would then have to determine what is “self acquired”, what is ancestral and the notional value of “heritable” property as compared to other heirs and use the living standard criteria to ascertain undisclosed wealth — all this is a nightmare for any trial court judge.
It would have been simpler to declare that all property acquired by husband at the time of marriage or in the course of marriage be deemed as “joint property” to be divided at the time of divorce, with an additional clause to secure the wife’s rights in the matrimonial residence, as is done in Britain and other Commonwealth countries. This simple solution, along with a state scheme to prevent destitution of all abandoned women whose husbands do not own property, nor have any means of livelihood, would have been beneficial.
The writer is a women’s rights lawyer
The Marriage Laws (Amendment) Bill is aimed at addressing two different concerns — making divorce easy and protecting the economic rights of women, but succeeds in doing neither. To waive the statutory six month “cooling period” for securing a divorce by mutual consent, when both parties desire it due to hardships caused to them, one did not need a major law reform. The family courts across the country were routinely doing this in cases where the parties made a joint application explaining the hardship. In 2002, a three-judge bench of the Supreme Court in the Anjana Kishore vs Puneet Kishore case had directed the courts to do away with this provision. The higher judiciary was also granting divorce on the ground of breakdown of marriage in specific cases of protracted litigation. In 1995, in the Romesh Chander vs Savitri case, the Supreme Court, while upholding the principle of marriage breakdown, had directed the husband to transfer the matrimonial home to the wife’s name at the time of divorce.
Even while puncturing holes in the bill, one must admit that it is an improved version of the earlier bill introduced unceremoniously in the Rajya Sabha in August 2010 and later referred to the Joint Select Committee. The urgency for the 2010 bill was to rectify the harmful precedent set by a ruling of the Supreme Court which concerned the daughter of Sushil Kumar Shinde, the Union home minister. The Supreme Court had, in 2009, upheld the ruling of the Bombay high court which had set aside an irregular divorce granted by the family court of Mumbai under rather peculiar circumstances, disregarding the provisions of law. So a bill was hastily introduced, touted as a “women friendly” bill as it would make divorce easy for women despite the fact that it did not make any financial provisions to safeguard their rights. Not surprisingly, the bill received the support of men’s rights groups, which, in itself, ought to have been a warning signal.
Proverbially, one swallow does not a summer make. The need to obtain a quick divorce and “move on in life” is a luxury enjoyed by only a microscopic minority of women who are independent with sufficient means or family backing. For the rest, marriage is an economic partnership, and its dissolution, especially one that disregards their non-monetary contribution to the household in the form of unpaid labour, deprives them of their shelter and sustenance, rendering them destitute. In fact, most women approach the courts for maintenance under Section 125 of the Criminal Procedure Code when they are abandoned by their husbands. When orders are passed in their favour, the husbands file divorce proceedings to spite them. But under the present system, the husband has to prove cruelty or desertion, which even in the hands of the most astute lawyers is not easy. It is at this stage that the woman gets an opportunity to negotiate for her economic rights and a husband, eager to obtain a divorce, may be willing to negotiate a lump sum financial settlement. But if divorce becomes a certainty, women will be deprived of this negotiating power and the state would then have to step in and make a statutory provision to make their lives financially secure.
Rather unfortunately, this dire need to protect women was overlooked by the various law commissions while recommending the introduction of irretrievable breakdown of marriage within the Indian context, though all countries which they mention in support of their recommendations have a property division clause attached to the breakdown clause. The first official mention of this provision is found only in the Report of the Joint Select Committee submitted to the Rajya Sabha in March 2011, after several women’s groups made written and oral depositions before it.
But the present bill has several provisions which are counterproductive. It stipulates that if a petition for divorce is pending before a court for over three years, the courts have the power to dissolve the marriage. But the provision to keep a petition pending for three years is not available in law as it lapses at the end of 18 months. Soon after a petition lapses, the party desiring divorce can file on the ground of marriage breakdown without having to wait for a further period of one-and-a-half years.
Second, even for obtaining divorce on “no fault ground”, evidence would have to be led to prove the three years separation. To make matters worse, it allows a period of not more than three months of cohabitation in between. Third, in order to avail of the provision of property division, the wife would have to file a separate “petition” rather than a simple “interim application”.
And the most contentious issue — adequate provision to remedy the hardship caused to the wife, would need lengthy and elaborate trial. If the couple could reach a consensus, they would have opted for a divorce by mutual consent. The fact that it has reached a stage of invoking the ground of breakdown of marriage is a sure sign that it will lead to protracted litigation. The courts would then have to determine what is “self acquired”, what is ancestral and the notional value of “heritable” property as compared to other heirs and use the living standard criteria to ascertain undisclosed wealth — all this is a nightmare for any trial court judge.
It would have been simpler to declare that all property acquired by husband at the time of marriage or in the course of marriage be deemed as “joint property” to be divided at the time of divorce, with an additional clause to secure the wife’s rights in the matrimonial residence, as is done in Britain and other Commonwealth countries. This simple solution, along with a state scheme to prevent destitution of all abandoned women whose husbands do not own property, nor have any means of livelihood, would have been beneficial.
The writer is a women’s rights lawyer
