Last week, the Supreme Court pulled up the central government for a law that has resulted in a Christian couple’s divorce taking nearly twice as long as other divorces in India. Under the Hindu Marriage Act, the Special Marriage Act and even the Parsi Marriage and Divorce Act, couples can file for divorce if they have lived apart for one year. Christian couples, however, have to be separated for at least two years before they can seek a divorce under Section 10A of the Divorce Act.
But Christians separating through mutual consent are not the only couples forced to go through long divorce procedures. Divorce litigation in India can often stretch for years if either spouse has to prove cruelty, adultery, insanity or any other recognised reason as a ground for splitting up.
A proposed law – the Marriage Laws (Amendment) Bill – was introduced in Parliament in 2010 to put an end to such lengthy lawsuits by including irretrievable breakdown of marriage as a new ground for divorce. The bill also sought to uphold the rights of divorced women by granting them a share in their ex-husbands’ property. For the past five years, however, the bill has been stuck in a limbo between the two houses of Parliament, and even women’s rights activists have almost given up the battle for stronger, amended marriage laws.
A long road to nowhere
The Marriage Laws (Amendment) Bill was originally introduced in the Rajya Sabha in 2010 by the then law minister Veerappa Moily, who proposed to bring in, for the first time, the no-fault clause of irretrievable breakdown of a marriage as a reason for seeking divorce. This draft also proposed doing away with the mandatory six-month cooling period that must follow a year of separation before couples can file for divorce through mutual consent.
“When the bill was first proposed, there was such a hullabaloo around it – especially ‘irretrievable breakdown of marriage’ – because people felt it could speed up the proceedings for divorce,” said Vandana Shah, a Mumbai-based divorce lawyer who was among the many activists and lawyers who sent their recommendations to the law ministry on how the bill could be fleshed out.
But one of the recommendations that activists pushed for became a major bone of contention when it was taken up by a parliamentary standing committee in 2011. The committee, headed by Jayanthi Natarajan, proposed that women should be given a share in the matrimonial property after divorce, as a safeguard against husbands who may use “irretrievable breakdown” as an easy means of ending an unwanted marriage.
This new clause, which was introduced in a revised draft bill, unleashed a bigger controversy that thwarted the bill’s clearance. Activists campaigning for men’s rights began to fear that the property-sharing clause would allow women a window to grab property from their ex-husbands’ families through divorce. The revised version not only left it to the courts to decide the share a woman would get from matrimonial property, but also added a twist to the “irretrievable breakdown” clause – if a wife feels a divorce could leave her financially vulnerable, she could oppose her husband’s plea for ending the marriage through irretrievable breakdown, but a man could not similarly oppose a wife’s plea.
Men versus women?
Although the bill lapsed with the end of the UPA government’s term, it was reintroduced in the cabinet by the Bharatiya Janata Party-led government in November 2014. But the “women-friendly” bill continues to face stiff opposition from a section of lawyers and activists who feel that the clauses are loaded against men.
“Introducing the irretrievable breakdown clause is the pragmatic requirement of the day, but the property sharing clause should not go through,” said Abbas Mookhtiar, a family court lawyer in Mumbai. “It is too much in favour of women and will be totally misused.”
Women’s rights activists, however, dismiss such fears for being ignorant about the plight of the majority of women in India.
“Women’s contributions to a marriage – particularly the housework that is not paid – are rarely recognised or considered by our society and laws,” said Persis Sidhwa, a lawyer from Majlis, a women’s legal rights organisation based in Mumbai. “After a divorce, she should not be left high and dry with nothing but some maintenance amount.”
If the clause on property-sharing in the bill is carefully defined, says Sidhwa, it could go a long way in giving shelter and stability to divorced women.
“So far, the bill has not been passed because most of our parliamentarians are men,” said Vandana Shah. “Opposition to the property-sharing clause has come only from the fringe, not the majority. Yes, the clause could be misused, but it would only be misused by the fringe.”
Meanwhile, lawyers say the hype around the Marriage Laws (Amendment) Bill in the past five years has given many divorce-seeking couples false hopes. “People have been reading about the potential change in divorce laws and expect to be able to use the irretrievable breakdown clause,” said Mridula Kadam, a divorce lawyer in Mumbai. “The government’s failure to pass the law is leaving them disheartened.”
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But Christians separating through mutual consent are not the only couples forced to go through long divorce procedures. Divorce litigation in India can often stretch for years if either spouse has to prove cruelty, adultery, insanity or any other recognised reason as a ground for splitting up.
A proposed law – the Marriage Laws (Amendment) Bill – was introduced in Parliament in 2010 to put an end to such lengthy lawsuits by including irretrievable breakdown of marriage as a new ground for divorce. The bill also sought to uphold the rights of divorced women by granting them a share in their ex-husbands’ property. For the past five years, however, the bill has been stuck in a limbo between the two houses of Parliament, and even women’s rights activists have almost given up the battle for stronger, amended marriage laws.
A long road to nowhere
The Marriage Laws (Amendment) Bill was originally introduced in the Rajya Sabha in 2010 by the then law minister Veerappa Moily, who proposed to bring in, for the first time, the no-fault clause of irretrievable breakdown of a marriage as a reason for seeking divorce. This draft also proposed doing away with the mandatory six-month cooling period that must follow a year of separation before couples can file for divorce through mutual consent.
“When the bill was first proposed, there was such a hullabaloo around it – especially ‘irretrievable breakdown of marriage’ – because people felt it could speed up the proceedings for divorce,” said Vandana Shah, a Mumbai-based divorce lawyer who was among the many activists and lawyers who sent their recommendations to the law ministry on how the bill could be fleshed out.
But one of the recommendations that activists pushed for became a major bone of contention when it was taken up by a parliamentary standing committee in 2011. The committee, headed by Jayanthi Natarajan, proposed that women should be given a share in the matrimonial property after divorce, as a safeguard against husbands who may use “irretrievable breakdown” as an easy means of ending an unwanted marriage.
This new clause, which was introduced in a revised draft bill, unleashed a bigger controversy that thwarted the bill’s clearance. Activists campaigning for men’s rights began to fear that the property-sharing clause would allow women a window to grab property from their ex-husbands’ families through divorce. The revised version not only left it to the courts to decide the share a woman would get from matrimonial property, but also added a twist to the “irretrievable breakdown” clause – if a wife feels a divorce could leave her financially vulnerable, she could oppose her husband’s plea for ending the marriage through irretrievable breakdown, but a man could not similarly oppose a wife’s plea.
Men versus women?
Although the bill lapsed with the end of the UPA government’s term, it was reintroduced in the cabinet by the Bharatiya Janata Party-led government in November 2014. But the “women-friendly” bill continues to face stiff opposition from a section of lawyers and activists who feel that the clauses are loaded against men.
“Introducing the irretrievable breakdown clause is the pragmatic requirement of the day, but the property sharing clause should not go through,” said Abbas Mookhtiar, a family court lawyer in Mumbai. “It is too much in favour of women and will be totally misused.”
Women’s rights activists, however, dismiss such fears for being ignorant about the plight of the majority of women in India.
“Women’s contributions to a marriage – particularly the housework that is not paid – are rarely recognised or considered by our society and laws,” said Persis Sidhwa, a lawyer from Majlis, a women’s legal rights organisation based in Mumbai. “After a divorce, she should not be left high and dry with nothing but some maintenance amount.”
If the clause on property-sharing in the bill is carefully defined, says Sidhwa, it could go a long way in giving shelter and stability to divorced women.
“So far, the bill has not been passed because most of our parliamentarians are men,” said Vandana Shah. “Opposition to the property-sharing clause has come only from the fringe, not the majority. Yes, the clause could be misused, but it would only be misused by the fringe.”
Meanwhile, lawyers say the hype around the Marriage Laws (Amendment) Bill in the past five years has given many divorce-seeking couples false hopes. “People have been reading about the potential change in divorce laws and expect to be able to use the irretrievable breakdown clause,” said Mridula Kadam, a divorce lawyer in Mumbai. “The government’s failure to pass the law is leaving them disheartened.”
