This recent news about making "irretrievable breakdown of marriage" a ground for divorce has led to many people talking about how beneficial it will be for the separated couples who cannot get divorce under Hindu Marriage Act as it currently exists.
The only problem is the definition of irretrievable breakdown of marriage. Most likely, it will not be granted for less than 5 years of separation. Then again, it will be need to be proved to the satisfaction of the court. Given the time taken by Indian courts, who is to say how many more years it might take once a divorce application is filed on this new proposed ground.
NEW DELHI: Sparring couples may now have a way out of their misery without having to go through the blame game. The Cabinet on Thursday is expected to consider a proposal to amend matrimonial laws for making "irretrievable breakdown of marriage" a ground for divorce.
The proposal moved by law ministry suggests amendment to the Hindu Marriage Act 1955 and Special Marriage Act 1954 to add the new basis for granting divorce.
Breakdown of marriage is currently not a ground for divorce despite several Supreme Court verdicts favouring it and the Law Commission recommending that it be included in the provision of the law.
The amendment will enable couples to get divorce if one of them refuses to live with the other and will not work towards reconciliation, and the court is convinced that there is no hope of the two leading a normal matrimonial life.
The legal fraternity seems to be split over the proposed amendment. Some experts feel that growing individuality in society has contributed to an increasing number of cases ending at the divorce court with both parties dishing out dirty laundry. The amendment would make parting of ways less bitter.
But several other experts warned of pitfalls in the proposed law. Eminent lawyer Kamini Jaiswal felt the amendment may not be a "bad idea" for urban women wanting to opt out of a relationship, but it may adversely impact rural women who have few options. "I feel there should be a comprehensive look at all laws relating to maintenance and alimony instead of a piecemeal look at one amendment," she added.
Kirti Singh, former Law Commission member described the amendment as "disastrous" if it came without adequate safeguards. "The amendment should only be brought when women are given adequate share in household assets and maintenance. Most women get a pittance from the courts and most do not want to get out of a marriage only because there is nothing to sustain them outside it," she said, adding that this would only provide relief to men.
Comment: Both of the suggestions above are made by lawyers or related to law making. Interestingly, both are worried about what bad effect it may have on maintenance of women. One feels it is not bad idea for urban women but bad for rural women! Basically, one can trust lawyers to welcome any law which generates more income for them. And all laws and amendments do that. There is a direct conflict of interest between a lawyer’s desire for justice, and more complexity in laws. The former reduces income, the second increases it since litigants become totally dependent on lawyers hoping to get out of the legal complexity.
According to the existing Hindu Marriage Act, 1955, divorce can be granted on three grounds -- matrimonial fault, divorce by mutual consent and frustration due to specified circumstances.
According to the first ground, marriage can be dissolved when either spouse has committed a matrimonial offence. Under this provision, it is necessary to have a guilty and an innocent party in matrimonial dispute and only the innocent party can seek divorce.
Divorce on mutual consent is based on the fact that since two persons can marry by their free will, they should also be allowed to move out of their relationship if both agree to do so.
Under "frustration by reason of specified circumstances", divorce can be granted to a person whose spouse has met with "civil death" -- disappeared without a trace for at least seven years -- or renounced the world.
The law commission in its report points out that the ground of matrimonial fault is not always sufficient for divorce and may cause injustice in disputes where the marriage cannot work although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to reveal it.
The report suggests that in such circumstances it will be in the interest of justice to dissolve the marriage through the proposed amendment.