India – Marriage Laws Amendment Bill – 2010

Thursday, June 10, 2010



By Uma Challa

Indian society was introduced to the concept of “divorce” with the advent of the Hindu Marriage Act (HMA) in 1955. The HMA was introduced to enable women who could not tolerate marriage to legally liberate themselves from wedlock.

Accordingly, the Act enumerates circumstances in which a marriage can be legally broken but does not explain what marriage means nor does it enumerate the responsibilities of a wife and husband towards themselves, each other, their children, both sides of the family or the society.

The most common grounds for divorce – cruelty, desertion, impotence, adultery etc. – are not only poorly defined, but are also difficult to prove. Nevertheless, given that a divorce cannot be initiated by a spouse in any other manner, he/she is forced to make a variety of allegations on his/her partner to justify divorce under any one or a combination of the above mentioned grounds for divorce.

Scores of cases are also filed by wives every year under Sections 498A of IPC, Domestic Violence Act, Dowry Prohibition Act, and related civil and criminal laws to strengthen their divorce cases, to alienate children from their biological fathers, and to extract huge amounts of money as alimony and maintenance from husbands.

Given that these grounds for divorce require the petitioner spouse to make the worst kind of allegations which only end up antagonizing his/her partner, it is not surprising that counter allegations follow and over time, even the slightest possibility of reconciliation is destroyed. Marriages which could otherwise have been saved break down irretrievably and end up in divorce. It is no wonder the Supreme Court of India observed that the Hindu Marriage Act has broken more families than it has united.

It is also a fact that Indian society has still not accepted divorce as a respectable option in life. As a result, women who appear to be relatively more sensitive to public disapproval, feel constrained to make allegations of cruelty, dowry harassment, desertion and other serious accusations against husbands and their families when, in reality, they have unilaterally made the decision to end their marriage for various reasons which may or may not be valid or acceptable according to the society, or their respective peer groups

Complicating the issue further, the Indian judiciary has taken up the grand agenda of saving marriages. Courts take years to grant divorce in the hope that somehow, a husband and wife will “reconcile” and “reunite” after exchanging vicious allegations against each other and after turning into bitter enemies who cannot stand to even see each other. The cases are dragged over many years, ignoring the natural physical, psychological and biological needs of young men and women, and cause irreparable damage to their individual lives.

The dilemma facing us is that the Indian society and the agenda of the Courts are in direct conflict with the Hindu Marriage Act, and instead of enabling women to free themselves from wedlock they end up trapping both men and women in a deadlock.

The trauma of false allegations, criminal cases, separation from children and the burden of paying huge amounts of money as maintenance are making men so miserable that thousands of men are ending their own lives every year. Recently, incidents of husbands murdering their spouses are also becoming commonplace.

There are also a growing number of women who realize a little too late that they have made a mistake or have been misled, but cannot go back and restore their marriage after it has been irretrievably broken by the legal machinery. Owing to delays in obtaining divorce they are unable to move on, are forced to remain single and are often exploited due to their emotional vulnerability.

The Law Commission has repeatedly made recommendations to make irretrievable breakdown of marriage a ground for divorce, and the Supreme Court of India has passed quite a few judgments to set legal precedents in this matter. Many ordinary citizens have been denied divorce even after 15 years of bitter legal battles. However, it was not until a Union Cabinet Minister’s daughter was denied divorce that the Cabinet decided it was time to make amendments to Indian Marriage (read “Divorce”) laws.

Do we welcome the amendment introducing a new long-awaited ground for divorce?

Irretrievable breakdown of marriage as a ground for divorce would be a welcome change if and only if it will put an end to

•the toxic culture of making baseless and false allegations of abuse and cruelty to obtain divorce.
•the mindless practice of painting fathers as abusive and unfit parents and separating them from children.
•the business of daylight robbery in the name of alimony and maintenance to the wife.
•the custom of prolonged legal battles which end up destroying the lives of men, women and children.

Most importantly, the amendments should not send out a wrong message that divorce is now going to be easy and open floodgates for soaring divorce rates.