For the vast majority of Indian women, seeking divorce is not an easy option if they want an escapefrom being victims of cruelty and torture, insult and abuse, adultery, persistent demands for dowry and various other forms of harassment in marital life,. Apart from the social stigma associated with a broken marriage, economic dependence of the woman and her children on the husband is a major deterrent. Lack of adequate maintenance, lack of a share in the marital property often forces the divorced woman and her children into destitution or into becoming a burden on her family and other relatives. In such conditions, many women continue to suffer silently because the consequences of walking out of a marriage are far too intimidating.
On May 17, 2012, in an apparent attempt to make divorce easier and more favourable to women, the government approved fresh amendments to the Marriage laws (Amendment) Bill 2010, to give the wife a clearly-defined share in the husband's immovable residential property. This bill has been pending in the Rajya Sabha for the past two years.
Earlier this month, in a meeting chaired by the Prime Minister, the Union Cabinet also approved a provision that in case both husband and wife mutually seek divorce, they would have to file petitions together for waiver of the mandatory six month cooling off period.
The draft Bill seeks to amend the Hindu Marriage Act, 1955 which codifies the law relating to marriage among Hindus and the Special Marriage Act, 1954 that provides for special form of marriage in certain cases.
The Bill seeks to include “irretrievable breakdown of marriage” among the grounds for divorce. The claim of “irretrievable breakdown of marriage” can be made by either husband or wife. Once this becomes a law, it will be no longer necessary for either party to provide proof of “cruelty”. “Marital disharmony”, “extra marital relationship” etc., as is presently the case.
Consent of both parties to the divorce will also no longer be necessary. The claim of “irretrievable breakdown of marriage” by either party will be considered sufficient grounds for divorce.
Apparently to offset any consequences of misuse of this clause, the government has proposed changes to the Bill to the effect that the court may grant the wife and children “a well-defined share of the property acquired during the subsistence of marriage, including immovable residential property”.
Once the divorce is granted, the woman will have to move an application to get a share in her husband's property, as part of the settlement.
It may be noted that at present, in case of divorce, a women is entitled only to maintenance, the amount of which is decided by the courts on a case-to-case basis.
Women's organisations have justly opposed the introduction of the proposed changes without strengthening the existing laws relating to maintenance for women in case of divorce. They have pointed out that if the proposed amendments are passed, in most cases they are likely to work against the interests of women. The quantum of the share in marital property that the woman is to receive remains to be decided by the courts on a case-to-case basis. Life experience with the courts has shown that in most cases the courts are heavily biased against women on the question of granting maintenance for women and children. When women approach the courts for maintenance, they are usually awarded sums that may range from 5% to 35% of the man’s income, even if there are children to be supported! The courts’ evaluation of what constitutes “adequate maintenance” often falls far short of what the woman and her children require, in order maintain the conditions they were used to before the breakdown of the marriage. Allowing the courts to decide on the share of the marital property will be no guarantee that the woman will receive her just entitlements.
It has been pointed out that in other countries where “irretrievable breakdown of marriage” has been introduced as a ground for divorce, there also exist laws relating to an equitable division of all marital assets. In those societies, the role and contribution of the woman in building up the household and taking care of the children is legally recognized and considered as economically valuable as work outside the house. But in Indian society, where women are not treated as equals in marriage and where the society as well as the legal and judicial system are heavily biased against women, any moves to further liberalise the grounds for divorce would only serve to intensify the discrimination against women.
Women's organisations have therefore demanded that the amendments for “irretrievable breakdown of marriage” as a ground for divorce be introduced only after a law has been enacted for giving women equal rights in marital property on separation as well as divorce. They have demanded that the laws related to maintenance for the woman and her children living with her must be strengthened to ensure that they receive their due share. In the absence of such laws and their strict implementation, what the estranged woman and her children receive in the event of a divorce; in the name of the proposed “well-defined share of the marital property” will be left to the whims and fancies of individual courts.
The move to defer the passage of the Bill and amend it by taking into account the concerns expressed by women's organisations is a result of the sustained campaign of women's organisations and their vigilance in defence of the rights of women.