Author: KM ASHWANI, JIMS SCHOOL OF LAW
ARTICLE ON: CONSTITUTIONAL VALIDITY OF HINDU MARRIAGE AMENDMENT BILL 2010
Marriage forms the very foundation of social organization. The Hindu Marriage Act regards marriage as a sacrament which is eternal in its being. Without the basis of this institution of marriage, the society cannot exist and will hence, have no civilization.
The foundation of a sound marriage is tolerance, adjustment, and respect for one another. Tolerance towards each other’s fault, to a certain bearable extent, has to be inherent in every marriage. Petty quibbles and trifling differences should not be exaggerated or magnified to destroy what is said to have been made in heaven.
‘Divorce’ is the “Dissolution of a valid marriage in law”. Once a divorce is granted, the parties are free from any kind of obligation, legal or otherwise, towards the other party. As per the Hindu law dating back to the latter part of the 19th century, divorce, per se, was not recognized as a means to put an end to the marriage, which was always considered to be of sacred nature.
The Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, at present, has existing grounds of divorce, as mentioned in sections 13 and 27 respectively. In addition to those grounds, and keeping at par with the changing times, several amendments were made in both acts. Section 13-B of Hindu Marriage Act and Section 28 of the Special Marriage Act; have through these amendments, provided for divorce by mutual consent as a ground for presenting a petition for dissolution of marriage.
Judicial separation will be granted on the grounds of divorce based on fault theory. What has to be noted, is that, neither party is at fault and that the marriage simply could not be worked out. Law of divorce based mainly on the fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce Courts are presented with concrete instances of human behavior as bring the institution of marriage into disrepute. Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interest of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie, by refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. Public interest demands not only that the married status should, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, the public interest lies in the recognition of that fact. Human life has a short span and situations causing misery cannot be allowed to continue indefinitely. Also, in many cases parties files the petition for divorce by mutual consent, and then one of the parties abstains himself/herself from attending the court proceedings diligently or willfully avoids being present in the court, thereby causing inconvenience and harassment to the party who is in dire need of divorce and thus keeps the divorce proceedings inconclusive for a long time.
In view of the demand from various quarters and taking into consideration a serious note of the above concerns; the Central Government referred the matter to the Law Commission of India for its 2 71st Report of the Law Commission of India consideration. The Law Commission in its 71st Report titled “The Hindu Marriage Act, 1955- Irretrievable Breakdown of Marriage as a Ground of Divorce” submitted in April, 1978 had examined the issue in detail and recommended amendments to the Hindu Marriage Act, 1955 to make irretrievable breakdown of marriage as a new ground for granting a decree of divorce among the Hindus. Accordingly, a Bill, namely, the Marriage Laws (Amendment) Bill, 1981, further to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, was introduced in Lok Sabha on the 27th February 1981. However, before the Bill could be considered and passed by Lok Sabha, the Seventh Lok Sabha was dissolved on 31st December 1984, and hence the Bill lapsed.
Subsequently, the Hon’ble Supreme Court in Ms. Jorden Diengdeh vs. S.S. Chopra had pointed out the necessity to introduce irretrievable breakdown of marriage and mutual consent as grounds for the grant of divorce in all cases. Similarly in Naveen Kohli vs. NeeluKohli , also the Hon’ble Supreme Court recommended to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate an irrevocable breakdown of marriage as a ground for divorce. Hence, The Law Commission in its 71st Report titled “The Marriage Laws (Amendment) Bill, 2010, Irretrievable Breakdown of Marriage: Ground for Divorce” has been proposed, which has taken a serious note of the above concerns and has made efforts to provide safeguard to parties in cases of a deadlock, by providing for amendment in sections 13, by adding sections 13C, 13D and 13E of Hindu Marriage Act and amending Section 28 of Special Marriage Act. This amendment Bill has been prepared on the recommendations of the Law Commission as well as the Supreme Court, after examining various legislations along with previous judgments, and has expressed its view that “Irretrievable Breakdown of Marriage” should be incorporated as a ground for divorce. The main objective of the bill is to further amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
WHAT IS HINDU MARRIAGE (AMENDMENT) BILL 2010?
The Bill mainly proposes for the addition of certain new provisions, such as, Section 13B, Sec 13C, 13D, and 13E were to be added to Hindu Marriage Act; and Section 28A, 28B and 28C to Section 28 of Special Marriage Act respectively. According to Section 13C (1), it lays down that the petition for dissolution of marriage has to be presented to the District Court. Such petition may be made by either party irrespective of whether the marriage was solemnized before or after the commencement of Marriage Law Bill of 2010. Sub-section(2) of the Act specifies that the court shall not hold any marriage to have broken down irretrievably, unless it is specified that the parties to the marriage have lived apart, at least for not less than 3 years immediately preceding the presentation of the said petition. According to sub-section (3) if the court is satisfied with the fulfillment of all conditions as required in the sub-section above, then, provided the court is further satisfied with all the evidence of the marriage has actually broken down irretrievably, only then will the courts grant a decree of divorce. Sub-section (4) furthers the condition of the time period requirement of living apart, which has been specified to be 3 years and also about the specifications made as to whether, such living apart, needs to be continuous. Sub-section (5) specifies what “living apart” actually means in the context of granting a decree of divorce based on this ground and also states that, a husband and wife shall be treated as living apart unless they are living together in the same household.
The proposed Section 13-D of the Act has invited a lot of controversies. It makes provisions for safeguarding the wife alone and hence appears to be gender biased. In case the wife happens to be the respondent in respect of a petition for grant of a decree of divorce on the ground of irretrievable breakdown of marriage under the proposed new section 13C of the Hindu Marriage Act, 1955 or under the proposed new section 28A of the Special Marriage Act, 1954, as the case may be, the wife is entitled to oppose the grant of a decree of divorce on the ground that a dissolution of the marriage will result in grave financial hardship to her . Similarly, Section 13 E of Hindu Marriage Act and Section 28C of Special Marriage Act provide for a provision to restrict grant of a decree of divorce on the ground of irretrievable breakdown of marriage if the 5 Section 13 d of Hindu marriage act and 28 b of special marriage act court is satisfied that adequate provision for the maintenance of children born out of the marriage has not been made consistently with the financial capacity of the parties to the marriage.
CONSTITUTIONAL VALIDITY OF THE AMENDMENT
Section 13C, D, and E of the Marriage Amendment Act 2010 does not violate Article 14, 15 21 and 25 of Indian Constitution. The law cannot pressurize a woman (who is emotionally and mentally unable) to cope with marriage. It can’t even bind in wedlock to her spouse when it is established that the marriage is dead. The compulsion upon the wife to obtaining the consent of the husband for filing the petition of divorce by mutual consent is violative of the principles, like, gender justice and thereby of the Article 14 and 21 of the Constitution .
Amendment of Section 13D of the Marriage Laws Amendment Bill, 2010 is irrespective of gender. There is a very severe and disturbing trend to create duplicate laws in the Gender area. When there are laws serve the same purpose. Indian Maintenance laws can be demanded by a wife by 5 separate laws namely Section 24 and 25 of Hindu Marriage Act 1955, Section 125 of Criminal Procedure Code, Section12 of Domestic Violence Act, and Section 18 of Hindu Adoption and Succession Act. Under this Amendment, any one of the party can ask for the divorce on the ground of Irretrievable breakdown of the marriage. And it can be said in accordance with Article 14 (equality) of the Indian Constitution. Being gender irrespective, it also satisfies Article 15 of the Indian Constitution.
A petition for a decree
of divorce may take five to ten years for a petition to be decided. But the life
of couples is thus wasted in courts to obtain a final verdict. Wife and Husband
approach Courts saying that they are being forced to live in an unhappy and
unwanted marriage. And this violates fundamental right to live life with
dignity which is guaranteed by Article 21 (right to life) of Constitution of
India. Hence this Act acts as the solution to their problems, and therefore,
this amendment Act is constitutionally valid and lies within the scope of
Article 21 of the Constitution.
 71st Report of the Law Commission of India
 AIR 1985 SC 935
AIR 2006 SC 1675.
 Section 13 d of Hindu marriage act and 28 b of special marriage act
3smiritishinde case available at http://feministmedia.wordpress.com/2009/12/17/double-standards-of-the-supremecourt.