Marriage Laws (Amendment) Act, 2010 seeks to amend the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954 by introducing Irretrievable Breakdown of Marriage as a Ground of Divorce, subjected to the condition that the parties to the marriage have lived apart for a continuous period of not less than three years immediately preceding the presentation of the petition. Furthermore it states that a wife has right to 50% of the immovable residential property owned by her husband regardless of whether the property was acquired before or during the marriage.
Irretrievable Breakdown of Marriage
If the wife moves a petition for divorce on the ground of Irretrievable Breakdown of Marriage then her husband would not have any right to oppose it. But if the husband moves such a petition for divorce on the citing Irretrievable Breakdown of Marriage then his wife would have the right to oppose it on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage. Then the court may dismiss the petition, or in an appropriate case stay the proceedings until arrangements have been made to its satisfaction to eliminate the hardship.
This shows that marriage is no longer a sacred union but a financial security for the wife. If she wants she would have the right to walk out of her marriage. However, the husband would not have any right to walk out of the marriage unless and until he is ready to hand over a considerable amount of money to eliminate grave financial security for his wife. How conveniently the law treats a husband as an ATM machine! Making divorce easy would increase the number of cases of family breakups which would make the children suffer, as they would not be able to live with their father.
Also, it has been mentioned that the court shall not pass a decree of divorce on the ground of Irretrievable Breakdown of Marriage unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage. So if a wife moves a petition for divorce under this new ground then would it be fair to grant custody of the children to their mother and order their father to make adequate provision for the maintenance of children.
Wife’s right to 50% of the immovable residential property owned by her husband during divorce
Half of the immovable property owned by the husband could be transferred to a wife during divorce. It does not mention whether wife would have any liability to pay the loan or mortgage associated with the residential property. However, it does not say that husband would have any share in the property owned by the wife. Also it is absolutely unfair that the wife would have share in the property acquired by her husband through his hard earned money before their marriage.
Providing incentives to the wife for a divorce would shake the foundation of the Indian families which is based on marriage. It only makes divorce attractive for the wives and would lead to situation where some women would marry to get divorced. Divorce was only meant to be a way out of a bad marriage. But now, with provision for alimony and property transfer the divorce would become more attractive than marriage.
A soldier is send on a mission to engage militarily in a conflict situation. He is forced to stay engage in his current assignment and does not get an opportunity to visit his family for 3 years. This kind of law would give his wife the right to file for a divorce and walk away with half of his immovable residential property. Is it fair to a person who is risking his life for his country? Wouldn’t it demotivate a person to serve dedicatedly in the armed forces?
A man gets kidnapped and the his abductors keep him captive for more than 3 years. Under this law his wife could file for a divorce and get half of his residential property. Even if the man is rescued from his kidnappers, he would return back to find that his wife has got a divorce. Add to that she has walked away with half of the residential property owned by him. Does this look fair?