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.
Probable impact
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?
