Shinde’s daughter pleads for change in divorce law

Thursday, December 17, 2009


New Delhi In a serious challenge against the law providing for divorce by mutual consent, the Supreme Court on Wednesday decided to examine whether the need for ‘consent’ violated a person’s fundamental right, if the other partner withheld or withdrew consent.

In her petition, Union Power Minister Sushil Kumar Shinde’s daughter Smriti Shinde has challenged this provision under Section 13B of the Hindu Marriage Act 1955, and stated that as a result of withdrawal of consent by her husband, she was forced to live a married life against her choice and freewill, a violation of her fundamental right to live (Article 21).

Shinde also questioned the provision on the ground of gender equality. She argued that while Article 14 lays emphasis on gender equality and provides special laws in favour of women, Section 13B of the Hindu Marriage Act compels a woman to “remain bound in wedlock even when the couple has lived apart for a year and thereby it is established that the marriage is dead.”

Appearing for the petitioner, senior advocates Harish Salve and Mukul Rohtagi told the court that the matter raises a serious constitutional issue and must be viewed from the prism of fundamental rights of an individual. The Bench of Chief Justice KG Balakrishnan, Justices AK Ganguly and BS Chauhan issued notices to the Union Law and Justice Ministry, directing to file a reply to the petition.

The petitioner and her husband, Mumbai resident Sanjay Paharia, have been living separately since January 2005. Under Section 13B(1), the parties had jointly moved a petition for divorce by mutual consent in May 2007. Six months later, the petitioner wished to obtain a decree of divorce under Section 13B(2) of the Act. The husband chose to remain absent from court. This became a ground for the Bombay High Court to set aside the divorce decree obtained by the wife, on the ground that the husband’s absence indicated withdrawal of consent. To make matters worse, the Supreme Court dismissed the petitioner’s appeal, as lately as May 11 this year.

With the matter reverting back to the trial court, the aggrieved wife challenged the legal provision under the Act, both Sections 13B(1) and (2) that provide for joint presentation of suit for divorce and the subsequent section containing the words “…by both the parties.”

In stake was also the interest of the two children born out of the wedlock. Shinde claimed in her petition, “…It is necessary for the petitioner (wife) to provide a great degree of emotional stability to these children to compensate as far as is humanly possible, for the trauma of having come from a broken home.” Such responsibility gets strained if the petitioner is herself burdened to live her life with a man with whom she no more shares emotional or mental compatibility.