Divorce without tears


The Marriage Laws (Amendment) Bill passed by the Rajya Sabha on Monday seeks to amend the Hindu Marriage Act and the Special Marriage Act and empowers...

The Marriage Laws (Amendment) Bill passed by the Rajya Sabha on Monday seeks to amend the Hindu Marriage Act and the Special Marriage Act and empowers courts to decide compensation from husband's inherited and inheritable property for the wife and children once the marriage legally ends. While the measure is welcome in that it will offer increased security to divorced women, some aspects of it may be debated for some time to come. For instance, one can understand the need for a man paying alimony to his divorced wife, as also maintenance for her and such of their children as may choose to live with their mother.

But conferring on woman a share in the “inherited and inheritable” property of her husband is not easy to understand. How can a woman be deemed to have become entitled to a share in such property as her husband may have inherited if she seeks a divorce? In some cases, women may inherit property after marriage. Would the man be entitled to a share in it?

That question has been left unanswered. Here too it is a case of gender justice and not gender neutrality. Or, suppose a woman is employed and earning much more than her husband, would she be justified in demanding huge alimony and maintenance from her husband at the time of divorce that she has sought? 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 a petition. But a court can refuse divorce on the ground of irretrievable breakdown if it is satisfied that adequate maintenance for children has not been made consistently with the financial capacity of the parties to the marriage. Also, the wife would have the right to oppose divorce on the ground that the dissolution could result in grave financial hardship. 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. The latter provision is clearly flawed. If one of the two parties refuses to move a joint application, it should be clear that he/she does not want divorce.
How then can a court take an ex parte decision on granting divorce? Divorce is legitimate only when both parties seek it on rational grounds, such as temperamental incompatibility. If one partner refuses to take that plea and absents when a joint application is to be filed, the inference is obvious that he/she does not believe that the marriage is past praying for, and that it can still be shored up. Nobody wants couples sick of their marriage to stay put together for the rest of their lives. But at a time when divorce can be induced by factors other than irretrievable breakdown of marriage, there is need for caution. Of course, no woman should be deprived of her legitimate rights when the man decides to nullify marriage. But the alternative is not to leave a man sulking for the rest of his life. Indian tradition shows marriage as an eternal bond. Marriages may or may not be made in heaven but when they are sought to be dissolved on earth, sometimes for sound reasons, courts will need to ensure that the separation does not lead to lifelong enmity.
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