RS approves bill to make divorce friendly for women - The Hindu
Overview of the Bill
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 a share in the husband's immovable property after "irretrievable breakdown" of marriage.
Empowerment Through the Marriage Laws (Amendment) Bill
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 and Restrictions
Provisions have been made to restrict the grant of a decree of divorce on the ground of "irretrievable breakdown" of marriage if the court is satisfied that adequate provision for maintenance of children has not been made consistently with the 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.
Law Minister's Remarks
Replying to a debate on the bill, Law Minister Kapil Sibal said it is "a historic piece of legislation" in a patriarchal society like India where women, who constitute 50 percent of the population, own only two percent 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 the wife can lay claim on the husband's immovable property.
Court's Role and Existing Laws
The Bill also provides that a court can take an ex parte decision on granting divorce if one of the two parties refuses 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 does not turn up for filing of motion jointly with the other party, leaving 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.
Suggestions and Amendments
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 the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954. Mr. Sibal, however, noted that the legislation is in the context of the 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 decide about the division of property post-divorce. "We have to trust our judges...Judges...will decide what (amount of) property will be given to women," he said.
No Amendments Against Women
The Minister, however, said there was no amendment which works against women and works in favor of men. He said the Members of Parliament should show that they are on the side of women in a patriarchal society.
Diverse Opinions and Support
Earlier, Najma A. Heptulla (BJP) said divorce is considered a taboo in India and efforts should be made to ensure that the family structure remains intact. She accused the government of not doing anything for the 10 crore women belonging to the Muslim community. She promised BJP's support to any legislation for the betterment of Muslim women. She also said there should be only one law for all women in the country.
Need for Amendments
As per the statement of objects and reasons of the bill, the Hindu Marriage Act and the Special Marriage Act have proved to be inadequate to deal with the issue where there has been an irretrievable breakdown of marriage and therefore the need was felt for the amendments. The Supreme Court too had pointed out the necessity to introduce irretrievable breakdown of marriage and mutual consent as grounds for the 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.
Husbands' Rights
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.
From India, Delhi
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174Overview of the Bill
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 a share in the husband's immovable property after "irretrievable breakdown" of marriage.
Empowerment Through the Marriage Laws (Amendment) Bill
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 and Restrictions
Provisions have been made to restrict the grant of a decree of divorce on the ground of "irretrievable breakdown" of marriage if the court is satisfied that adequate provision for maintenance of children has not been made consistently with the 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.
Law Minister's Remarks
Replying to a debate on the bill, Law Minister Kapil Sibal said it is "a historic piece of legislation" in a patriarchal society like India where women, who constitute 50 percent of the population, own only two percent 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 the wife can lay claim on the husband's immovable property.
Court's Role and Existing Laws
The Bill also provides that a court can take an ex parte decision on granting divorce if one of the two parties refuses 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 does not turn up for filing of motion jointly with the other party, leaving 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.
Suggestions and Amendments
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 the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954. Mr. Sibal, however, noted that the legislation is in the context of the 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 decide about the division of property post-divorce. "We have to trust our judges...Judges...will decide what (amount of) property will be given to women," he said.
No Amendments Against Women
The Minister, however, said there was no amendment which works against women and works in favor of men. He said the Members of Parliament should show that they are on the side of women in a patriarchal society.
Diverse Opinions and Support
Earlier, Najma A. Heptulla (BJP) said divorce is considered a taboo in India and efforts should be made to ensure that the family structure remains intact. She accused the government of not doing anything for the 10 crore women belonging to the Muslim community. She promised BJP's support to any legislation for the betterment of Muslim women. She also said there should be only one law for all women in the country.
Need for Amendments
As per the statement of objects and reasons of the bill, the Hindu Marriage Act and the Special Marriage Act have proved to be inadequate to deal with the issue where there has been an irretrievable breakdown of marriage and therefore the need was felt for the amendments. The Supreme Court too had pointed out the necessity to introduce irretrievable breakdown of marriage and mutual consent as grounds for the 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.
Husbands' Rights
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.
From India, Delhi
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Impact of New Law on Supreme Court Judgment
What changes could have been in the following judgment had the above law been in force?
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1794 OF 2013
(Arising out of Special Leave Petition (Civil) No. 4782 of 2007)
K. SRINIVAS RAO ... APPELLANT
Versus
D.A. DEEPA ... RESPONDENT
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. This appeal, by special leave, has been filed by the appellant-husband, being aggrieved by the judgment and order dated 8/11/2006 passed by the Andhra Pradesh High Court in Civil Miscellaneous Appeal No.797/03, setting aside the decree of divorce granted in his favor.
3. The appellant-husband is working as Assistant Registrar in the Andhra Pradesh High Court. The marriage between the appellant-husband and the respondent-wife was solemnized on 25/4/1999 as per Hindu rites and customs. Unfortunately, on the very next day, disputes arose between the elders on both sides, which resulted in their abusing each other and hurling chappals at each other. As a consequence, on 27/4/1999, the newly married couple got separated without consummation of the marriage and started living separately. On 4/10/1999, the respondent-wife lodged a criminal complaint against the appellant-husband before the Women Protection Cell alleging inter alia that the appellant-husband is harassing her for more dowry. This complaint is very crucial to this case. We shall advert to it more in detail a little later. Escalated acrimony led to complaints and counter-complaints. The respondent-wife filed a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights before the Family Court, Secunderabad. The appellant-husband filed a counter-claim seeking dissolution of marriage on the grounds of cruelty and desertion under Section 13(1)(i-a) and (b) of the Hindu Marriage Act, 1955.
4. The Family Court, while dismissing the petition for restitution of conjugal rights and granting a decree of divorce, inter alia held that the respondent-wife stayed in the appellant-husband's house only for a day, she admitted that she did not have any conversation with anyone, and hence any amount of oral evidence adduced by her will not support her plea that she was harassed and driven out of the house; that the story that the appellant-husband made a demand of dowry of Rs.10,00,000/- is false; that by filing a false complaint against the appellant-husband and his family, alleging offence under Section 498-A of the IPC in the Metropolitan Magistrate Court, Hyderabad, and by filing complaints against the appellant-husband in the High Court where he is working, the respondent-wife caused mental cruelty to the appellant-husband and that reunion was not possible. The Family Court directed the appellant-husband to repay Rs.80,000/- given by the respondent-wife's father to him with interest at 8% per annum from the date of the marriage till payment.
5. By the impugned judgment, the High Court allowed the appeal carried by the respondent-wife against the said judgment and set aside the decree of divorce granted in favor of the appellant-husband. The High Court inter alia observed that the finding of the Family Court that lodging a complaint with the police against the appellant-husband amounts to cruelty is perverse because it is not a ground for divorce under the Hindu Marriage Act, 1955. The High Court further held that the appellant-husband and the respondent-wife did not live together for a long time and, therefore, the question of their treating each other with cruelty does not arise. According to the High Court, the conclusion that the respondent-wife caused mental cruelty to the appellant-husband is based on presumptions and assumptions.
28. In the ultimate analysis, we hold that the respondent-wife has caused by her conduct mental cruelty to the appellant-husband and the marriage has irretrievably broken down. Dissolution of marriage will relieve both sides of pain and anguish. In this Court, the respondent-wife expressed that she wants to go back to the appellant-husband, but that is not possible now. The appellant-husband is not willing to take her back. Even if we refuse a decree of divorce to the appellant-husband, there are hardly any chances of the respondent-wife leading a happy life with the appellant-husband because a lot of bitterness is created by the conduct of the respondent-wife.
29. In Vijay Kumar, it was submitted that if the decree of divorce is set aside, there may be fresh avenues and scope for reconciliation between parties. This court observed that judged in the background of all surrounding circumstances, the claim appeared to be too desolate, merely born out of despair rather than based upon any real, concrete, or genuine purpose or aim. In the facts of this case, we feel the same.
30. While we are of the opinion that a decree of divorce must be granted, we are alive to the plight of the respondent-wife. The appellant-husband is working as an Assistant Registrar in the Andhra Pradesh High Court. He is getting a good salary. The respondent-wife fought the litigation for more than 10 years. She appears to be entirely dependent on her parents and on her brother, therefore, her future must be secured by directing the appellant-husband to give her permanent alimony. In the facts and circumstances of this case, we are of the opinion that the appellant-husband should be directed to pay a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs only) to the respondent-wife as and by way of permanent alimony. In the result, the impugned judgment is quashed and set aside. The marriage between the appellant-husband - K. Srinivas Rao and the respondent-wife - D.A. Deepa is dissolved by a decree of divorce. The appellant-husband shall pay to the respondent-wife permanent alimony in the sum of Rs.15,00,000/-, in three installments. The first installment of Rs.5,00,000/- (Rupees Five Lakhs only) should be paid on 15/03/2013 and the remaining amount of Rs.10,00,000/- (Rupees Ten Lakhs only) should be paid in installments of Rs.5,00,000/- each after a gap of two months i.e., on 15/05/2013 and 15/07/2013 respectively. Each installment of Rs.5,00,000/- be paid by a demand draft drawn in favor of the respondent-wife “D.A. Deepa.”
37. The appeal is disposed of in the aforestated terms.
...J.
(AFTAB ALAM)
From India, Delhi
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What changes could have been in the following judgment had the above law been in force?
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1794 OF 2013
(Arising out of Special Leave Petition (Civil) No. 4782 of 2007)
K. SRINIVAS RAO ... APPELLANT
Versus
D.A. DEEPA ... RESPONDENT
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. This appeal, by special leave, has been filed by the appellant-husband, being aggrieved by the judgment and order dated 8/11/2006 passed by the Andhra Pradesh High Court in Civil Miscellaneous Appeal No.797/03, setting aside the decree of divorce granted in his favor.
3. The appellant-husband is working as Assistant Registrar in the Andhra Pradesh High Court. The marriage between the appellant-husband and the respondent-wife was solemnized on 25/4/1999 as per Hindu rites and customs. Unfortunately, on the very next day, disputes arose between the elders on both sides, which resulted in their abusing each other and hurling chappals at each other. As a consequence, on 27/4/1999, the newly married couple got separated without consummation of the marriage and started living separately. On 4/10/1999, the respondent-wife lodged a criminal complaint against the appellant-husband before the Women Protection Cell alleging inter alia that the appellant-husband is harassing her for more dowry. This complaint is very crucial to this case. We shall advert to it more in detail a little later. Escalated acrimony led to complaints and counter-complaints. The respondent-wife filed a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights before the Family Court, Secunderabad. The appellant-husband filed a counter-claim seeking dissolution of marriage on the grounds of cruelty and desertion under Section 13(1)(i-a) and (b) of the Hindu Marriage Act, 1955.
4. The Family Court, while dismissing the petition for restitution of conjugal rights and granting a decree of divorce, inter alia held that the respondent-wife stayed in the appellant-husband's house only for a day, she admitted that she did not have any conversation with anyone, and hence any amount of oral evidence adduced by her will not support her plea that she was harassed and driven out of the house; that the story that the appellant-husband made a demand of dowry of Rs.10,00,000/- is false; that by filing a false complaint against the appellant-husband and his family, alleging offence under Section 498-A of the IPC in the Metropolitan Magistrate Court, Hyderabad, and by filing complaints against the appellant-husband in the High Court where he is working, the respondent-wife caused mental cruelty to the appellant-husband and that reunion was not possible. The Family Court directed the appellant-husband to repay Rs.80,000/- given by the respondent-wife's father to him with interest at 8% per annum from the date of the marriage till payment.
5. By the impugned judgment, the High Court allowed the appeal carried by the respondent-wife against the said judgment and set aside the decree of divorce granted in favor of the appellant-husband. The High Court inter alia observed that the finding of the Family Court that lodging a complaint with the police against the appellant-husband amounts to cruelty is perverse because it is not a ground for divorce under the Hindu Marriage Act, 1955. The High Court further held that the appellant-husband and the respondent-wife did not live together for a long time and, therefore, the question of their treating each other with cruelty does not arise. According to the High Court, the conclusion that the respondent-wife caused mental cruelty to the appellant-husband is based on presumptions and assumptions.
28. In the ultimate analysis, we hold that the respondent-wife has caused by her conduct mental cruelty to the appellant-husband and the marriage has irretrievably broken down. Dissolution of marriage will relieve both sides of pain and anguish. In this Court, the respondent-wife expressed that she wants to go back to the appellant-husband, but that is not possible now. The appellant-husband is not willing to take her back. Even if we refuse a decree of divorce to the appellant-husband, there are hardly any chances of the respondent-wife leading a happy life with the appellant-husband because a lot of bitterness is created by the conduct of the respondent-wife.
29. In Vijay Kumar, it was submitted that if the decree of divorce is set aside, there may be fresh avenues and scope for reconciliation between parties. This court observed that judged in the background of all surrounding circumstances, the claim appeared to be too desolate, merely born out of despair rather than based upon any real, concrete, or genuine purpose or aim. In the facts of this case, we feel the same.
30. While we are of the opinion that a decree of divorce must be granted, we are alive to the plight of the respondent-wife. The appellant-husband is working as an Assistant Registrar in the Andhra Pradesh High Court. He is getting a good salary. The respondent-wife fought the litigation for more than 10 years. She appears to be entirely dependent on her parents and on her brother, therefore, her future must be secured by directing the appellant-husband to give her permanent alimony. In the facts and circumstances of this case, we are of the opinion that the appellant-husband should be directed to pay a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs only) to the respondent-wife as and by way of permanent alimony. In the result, the impugned judgment is quashed and set aside. The marriage between the appellant-husband - K. Srinivas Rao and the respondent-wife - D.A. Deepa is dissolved by a decree of divorce. The appellant-husband shall pay to the respondent-wife permanent alimony in the sum of Rs.15,00,000/-, in three installments. The first installment of Rs.5,00,000/- (Rupees Five Lakhs only) should be paid on 15/03/2013 and the remaining amount of Rs.10,00,000/- (Rupees Ten Lakhs only) should be paid in installments of Rs.5,00,000/- each after a gap of two months i.e., on 15/05/2013 and 15/07/2013 respectively. Each installment of Rs.5,00,000/- be paid by a demand draft drawn in favor of the respondent-wife “D.A. Deepa.”
37. The appeal is disposed of in the aforestated terms.
...J.
(AFTAB ALAM)
From India, Delhi
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