Some years ago, while arguing a divorce matter in the Supreme Court, I joked that the holy state of matrimony dissolves in court into a matter of money. Outside the court, the late Goolam Vahanvati, who was then the Solicitor General and had just undergone a divorce, gave me a heartfelt commendation. As I go through the objections to the Marriage Laws Amendment Bill, I am reminded of the truth of that pun. Divorce settlements are financial and the question often is just about money.

In the current session of Parliament, the Lok Sabha is due to consider passing the Marriage Laws Amendment Bill of 2013, which has already been cleared by the Rajya Sabha. If the Bill is passed without amendments, Parliament will have legislated a law that provides for dissolution of marriages that have irretrievably broken down, with only men paying the costs of such a measure.

Overdue provision

The amendment begins on a salutary note by providing for an additional ground of divorce. Either party can move the court for a dissolution where a marriage has irretrievably broken down and there has been no cohabitation for a period of three years. This provision was long overdue and will free courts of the necessity to find cruelty or adultery as a ground for ordering dissolution when the parties cannot agree on a divorce by mutual consent.

The Supreme Court on occasion stepped in and used its special powers under Article 142 of the Constitution to dissolve such marriages but it later held that such powers were unavailable to be exercised if the legislative intent was to the contrary. Thus, courts often came upon marriages that endured in name only but were indissoluble except with the consent of both parties. If either spouse insisted on staying married and did not stray into adultery or cruelty, courts could not dissolve the dead marriage.

Nothing better exemplifies such a situation than the marriage of Prime Minister Narendra Modi and Jashodaben. If media reports are to be believed, his offer to divorce by mutual consent was turned down by the lady, who insists on remaining married to a man who has not been with her for decades. A marriage entered into during teens, where the effective cohabitation was confined to a few months, continues to dog the most powerful man in the country. The proposed amendment may just about provide a way out of a relationship that functions through Right to Information applications.

Wealth at stake

However, the progressive nature of the provision is ruined by not making the cost of dissolution gender neutral. Upon the dissolution of a marriage on the regular grounds of cruelty, adultery and mutual consent, alimony is required to be paid. But in the event of a divorce on grounds of irretrievable breakdown, the proposed amendment provides for just and equitable compensation to be paid only by the husband. The court shall, in computing the compensation, exercise its discretion but take into account the inherited and inheritable property of the husband. Even if the wife is richer and otherwise well provided for, and is seeking a dissolution on her own account, she will not be putting at stake her wealth or her income and will yet be entitled to imperil the income and wealth of her husband and his birth family.

Hence, while for a regular divorce, courts will determine alimony having regard to the conduct, income and other property of both parties to a marriage, the cost of dissolving an irretrievably broken down marriage will be borne by the husband alone at the cost of staking even property acquired through inheritance or expected to be inherited. This would have been a fair measure if the ground of an irretrievable breakdown was available to husbands alone.

That is not the position. The amendments make such a ground available to both male and female, but place the financial burden only on the male. In addition, it is only the female who is entitled to oppose such a dissolution, if it were likely to cause her grave financial hardship. Hypothetically, this means that someone like Mukesh Ambani's daughter Isha (currently unmarried) might in the future be able to use such a provision to get rid of an unwanted husband if it so proves necessary. However, a future Mrs Akash Ambani will be able to resist an exclusion from Antilla as it would cause her grave financial hardship. The proposed law thus provides for a remedy for a dead marriage at a grave financial risk to males.

Asymmetric power

What renders the gender-asymmetric law even more toxic is the gender-neutral provision that provides for both parties to seek dissolution on grounds of irretrievable breakdown. A female in a marriage will have an asymmetric power to unilaterally seek dissolution on grounds of an irretrievable breakdown and yet claim a share in the husband’s self-acquired and ancestral property. A marriage of a few days may end up in the dissipation of the wealth of generations. When combined with the hitherto much-abused Section 498-A of the Indian Penal Code, the legislature will have provided a potent armoury to divorce lawyers, who can and will resort to simultaneous criminal charges of cruelty, which will imperil the freedom of a man and his birth family, and civil proceedings for dissolution, which will stake his ancestral inheritance as well.

Ideally, marriages are meant to be contracted, maintained and dissolved on cooperative principles of mutuality and respect. The proposed amendments seem however to provide for an in-built incentive for conflict, with resolution being available only at a disproportionate cost to the male. We will do well to remember Tolstoy’s first sentence of Anna Karenina: “Happy families are all alike, every unhappy family is unhappy in its own way.” This legislation is designed to achieve maximum unhappiness for the maximum number.