Mr. Rebates

Thursday, August 29, 2013

Marriage law: The 'Inter Continental Ballistic Missile' of a Bill

The Marriage Laws (Amendment) Bill, approved by the Rajya Sabha on Monday, has long been pegged the 'Intercontinental Continental Ballistic Missile' (ICBM) Bill by protesting men's groups, for its inclusion of the 'Irretrievable Breakdown of Marriage (IBM)' clause as a valid condition for divorce. 

Virag Dhulia, a men's rights activist and head of gender studies at the Bangalore-based Confidare Research says, "The Rajya Sabha has betrayed us. We now hope the Lok Sabha MPs will not let us down." Men's groups like Dhulia's partnered with Men's Rights Association, Pune and have been protesting the Bill for months now. In December 2012 they led a rally to Jantar Mantar and courted detention on May 1, 2013 en route the Prime Minister's residence. Their objections to the Bill are that it will blindly give away property in the name of marriage, that men will stop marrying to prevent this, thus destabilizing the institution of marriage. 

"Whichever country has these clauses also has supportive laws like a legalization of pre-nuptial agreements, which India doesn't have. India is cherry picking laws that suit them, which can prove disastrous. In 2011, China rolled back a law like this because men had stopped marrying and stopped buying property" Dhulia warns. 

But the Bill is in fact far reaching and thought out over a period of decades. The first proposals for amendments to the Hindu Marriage Act came from the Law Commission in 1978. Two more Law Commission reports, several Supreme Court Judgements and after much debate among invested parties led by women's groups like Majlis, the Bill has been tabled. 

Chakshu Roy, head of technology initiatives at PRS Legislative Research, New Delhi says, "The Law Commission and the Supreme Court have on a number of occasions recommended the inclusion of irretrievable breakdown of marriage as a ground for divorce. The Law Commission suggested that before a divorce is granted on this ground, the court should ensure adequate financial arrangements have been made for the parties and children. The Bill incorporates these suggestions and introduces this ground for divorce and makes financial provision for the wife and children."

What the Bill essentially says is that there are certain conditions based on which either the husband or wife can apply for divorce. These are cruelty, medical reasons such as communicable diseases, mental illnesses, desertion. The Bill essentially sought to correct the lacuna that arose from the need to dissolve the marriage in the eventuality that none of these stand i.e. the dissolution of marriage due to an organic breakdown. 

The Irretrievable Breakdown of Marriage clause allows a woman or a man to exit on the premise that she is unfulfilled or unhappy in a marriage after a three year period of separation. The wife also bears the right to block a divorce thrust upon her if she can prove she will be in grave financial hardship. The Bill will also allow the court to consider a waiver of the 6-18 month lock-in period for couples who file by mutual consent.

A huge triumph, points out activist and head of women's group Majlis, Flavia Agnes, is the Bill's determination of the compensation due to the wife. In doing so, the Bill now allows the court to take into account inherited and inheritable properties. This becomes a crucial factor in cases where husbands are able to sell off properties in their name and prove they have no assets, leaving the wife without compensation.  

Men's groups protest this clause saying it allows women to divorce a man after five days and "clean him out". Agnes dismisses concerns stating that women have gotten the short end of the stick for far too long.

A lot of the debate has been ill-informed. Advocates state that the court will consider many factors while making such a decision. As any nuclear armed country knows, setting off a missile isn't so simple, there are many check points.

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