The Bill allows both parties to file for divorce on the ground of "irretrievable breakdown" of marriage.
Rajya Sabha on Monday approved a proposal to make divorce friendly for
women as it provides for the wife getting share in the husband’s
immovable property after “irretrievable breakdown” of marriage.
The Marriage Laws (Amendment) Bill seeks to empower the courts to decide
the compensation amount from the husband’s inherited and inheritable
property for the wife and children once the marriage legally ends.
The Bill allows both parties to file for divorce on the ground of
“irretrievable breakdown” of marriage. Both parties have to live apart
for at least three years before filing for such a petition.
Provisions have been made to restrict grant of a decree of divorce on
ground of “irretrievable breakdown” of marriage if the court is
satisfied that adequate provision for maintenance of children has not
been made consistently with financial capacity of the parties to the
marriage.
Also, the wife has the right to oppose the grant of a divorce on the
ground that the dissolution could result in grave financial hardship.
Replying to a debate on the bill, Law Minister Kapil Sibal said it is “a
historic peace of legislation” in a patriarchal society like India
where women, who constitute 50 per cent of the population, own only two
per cent of the assets.
He said the divorce is “gender neutral” as either the wife or the
husband can seek divorce. However, the right over property will not be
gender neutral as wife can lay claim on husband’s immovable property.
The Bill also provides that a court can take an ex parte decision on
granting divorce if one of the two parties refuse to move a joint
application.
As per the existing laws, the parties have to move a motion jointly
between 6 and 18 months in case of divorce on grounds of mutual consent.
However, it has been observed that in several cases one of the parties
do not turn up for filing of motion jointly with the other party leading
the party desirous of divorce hapless and remediless.
The amendment has been done to mitigate such hardships, said the statement of objects and reasons of the Bill.
During discussions, several MPs across party lines suggested the Bill be
made gender neutral and should not be confined to Hindu marriages only.
The Bill seeks to amend Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
Mr. Sibal, however, noted that the legislation is in context of Hindu
Marriage Act and the Special Marriage Act, a couple has a choice to get
registered under the Special Marriage Act.
He said it would be the courts that would decided about the division of property post divorce.
“We have to trust our judges...Judges...will decide what (amount of) property will given to women,” he said.
The Minister, however, said there was no amendment which works against women and works in favour of men.
He said the Members of Parliament should show that they are on side of women in a patriarchal society.
Earlier, Najma A. Heptulla (BJP) said divorce is considered a taboo in
India and efforts should be made to ensure that family structure remains
intact.
She accused the government of not doing anything for the 10 crore women
belonging to Muslim community. She promised BJP’s support to any
legislation for betterment of Muslim women.
She also said there should be only one law for all women in the country.
As per the statement of objects and reasons of the bill, Hindu Marriage
Act and the Special Marriage Act have proved to be inadequate to deal
with the issue where there has been irretrievable breakdown of marriage
and therefore the need was felt for the amendments.
Supreme Court too had pointed out the necessity to introduce
irretrievable breakdown of marriage and mutual consent as grounds for
grant of divorce in all cases.
“Having regards to the recommendations of the Law Commission of India
and the observation of the Hon’ble Supreme Court...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,” the statement said.
The Law Minister said husbands too can move courts for irretrievable breakdown of marriage.
Ram Prakash (Cong), Narendra Kumar Kashyap (BSP), Jharna Das Baidya
(CPI-M), Derek O’ Brien (TMC), Arvind Kumar Singh (SP), Renubala Pradhan
(BJD), Vandana Chavan (NCP), Bharatkumar Raut (SS) and Gyan Prakash
Pilania (BJP) also participated in the discussion.
