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 As part of the continuing judicial reforms process in the country , necessary amendments were effected in the Personal Law Reforms during the Monsoon Session of Parliament in July this year.The Acts which came under the purview of the Amendments include the Special Marriage Act, 1954, the Hindu Marriage Act, 1955, the Parsi Marriage and Divorce Act, 1936 and the Indian Divorce Act, 1869 as well as the Code of Criminal Procedure, 1973 to fix a time limit for interim judgement within 60 days from serving of notices in divorce cases, and removal of bar on alumni amount which has been a maximum of Rs. 500 per month since 1955. These amendments have proved to be a milestone in the Personal Law Reforms as well as social reforms and widely welcomed by all sections of women . They are also intended to alleviate the miseries, traumas and personal agonies of women in distress. Besides, the inequity between men and women especially the injustices and discrimination against Christian women in matters of divorce and alimony have been rectified.

    These amendments in the above laws have been effected with a view to making provisions that an application for alimony pendente lite (pending final disposal) or the maintenance and education of minor children shall be disposed of within sixty days from the date of service of notice on the respondent. This amendment which, is in line with the expectations of thousands of families waiting for alimony or the maintenance and education of their children would provide immediate relief to them. In each case the maintenance would also be accompanied by litigation expenses. This is intended to bring substantial relief to women who earlier had to wait for years to receive maintenance.

Indian Divorce (Amendment) Act, 2001

    The issue relating to the changes in the Indian Divorce Act, 1869 has been hanging for more than forty years. Various Law Commissions in their reports starting with the 15th Report as well as various High Courts, particularly the High Courts of Mumbai, Chennai, Andhra Pradesh, Kolkata and Kerala have emphasized the need for bringing about gender equality in the matter on grounds of divorce as available to the Christian spouses. It was also pointed out that there was no need for a provision which required confirmation of decree for dissolution of a marriage by the High Court. In the Indian Divorce (Amendment) Bill, 2000, as introduced in the Rajya Sabha on December 15, 2000, the Government had sought to bring about gender equality by amending Section 10 and Sections 17 and 20 to do away with confirmation by High Courts of decrees of divorce or nullity of marriage. Other provisions of the Indian Divorce Act, 1869 were also sought to be amended to make certain consequential changes. The Government’s approach in the matter was to bring about minimal changes in consonance with rulings of the courts and uniformity of law among Christians.

    The matter was referred to the Department-related Standing Committee of Parliament on Home Affairs and the Committee in its report has recommended the Bill as introduced by the Government together with such amendments suggested by the Catholic Bishops’ Conference of India, the National Council of Churches of India and Joint Women’s Programme as may be accepted by the Government. The Government has decided to accept all the changes suggested by these organisations except the suggestion to permit ecclesiastical courts to grant decrees of dissolution of marriage. The Law Commission of India had declined to accede to a similar request. The Commission observed -"It is the courts constituted under the law of this country that can have exclusive authority to determine disputes relating to civil rights, and there can be no surrender or abdication of that authority."Apart from the amendments originally proposed by the Government in the Indian Divorce Act, 1869, the Government had given notice of the official amendments to further amend the Indian Divorce (Amendment) Bill, 2000 with a view to making further changes in the Bill.Accordingly, grounds of dissolution of marriage have been further widened on the lines of the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 in deference to the wishes of the Christian organisations which desired that the existing law applicable to Christians should be made more progressive.

    A provision has been made for dissolution of marriage by mutual consent. This is on the lines of Section 13B of the Hindu Marriage Act, 1955 and section 28 of the Special Marriage Act, 1954.Section 7 of the Indian Divorce Act, 1869 which provides that the High Courts and the district courts shall act and give relief on the basic principles applied by the English Divorce Courts, has been deleted since after attaining independence, this provision seems to have become redundant.Section 34 which provides that the husband may claim damages for adultery in a petition in dissolution of marriage or for judicial separation, or in a petition limited to that object, on the ground of his wife having committed adultery has been deleted.Section 35 provides that where in a petition by the husband, the alleged adulterer was made a co-respondent and the adultery is established, the court may order the respondent (adulterer) to pay the cost of the proceedings. This provision has also been deleted.Provision to Section 36 which provides that alimony pendente lite shall not exceed one fifth of the husband’s average net income for three years, the next preceding date of the order has been deleted.As also Section 39 which empowers the court to order settlement of the wife’s property for the husband’s benefit and children .

Code of Criminal Procedure (Amendment) Act, 2001

    An applicant, after filing application in a court under Section 125 of the Code of Criminal Procedure, 1973, had to wait for several years for getting relief from the Court. It was, therefore, felt that express provisions should be made in the said Court for interim maintenance allowance to the aggrieved person under Section 125 of the Code. Accordingly, under the Code of Criminal Procedure (Amendment) Act, 2001 i.e. during the pendency of the proceedings, the magistrate may order payment of interim maintenance allowance and such expenses of the proceedings as the magistrate considers reasonable, to the aggrieved person. It has also been incorporated that this order be made ordinarily within 60 days from the date of service of the notice.

    A ceiling of Rs.500 was made in 1955 under Section 488 of the Code of Criminal Procedure, and it was retained in section 125 of Code of Criminal Procedure, 1973. If a ceiling is prescribed and retained it would require periodic review taking into account the inflation and rise in the cost of living as well as amendment of the provisions of the Act from time to time. This would unnecessarily be time-consuming. Accordingly, Section 125 has been amended and consequential changes under Section 127 of the Code of Criminal Procedure to remove the ceiling of maintenance allowance made to base on the assets and income of the husband.This amendment is in line with the expectations of thousands of families waiting for justice and would provide immediate relief to them. In each case litigation expenses would also accompany the maintenance. This provision is likely to bring relief to women who had to wait earlier for years in order to receive interim maintenance and also in terms of adequate quantum of relief.

Family Courts

    The Family Courts Act, 1984 is an enabling Act. As per Section 3 of the Act, the State Government in consultation with the concerned High Court, may establish a Family Court for every area comprising a city or town whose population exceeds one million. No target has been fixed by the Central Government in this connection. So far, 85 Family Courts have been set up all over the country.

    In a recent conference of home secretaries of States and Union Territories it was decided that in all the cities with 12 million plus population, Family Courts will be set up during 2001-2002. Besides, the Government of India sanctioned last year 15 Family Courts to be set up in the National Capital Territory of Delhi.The concept of Family Court is to ensure harmony in family life through resolution of family disputes amicably without the intervention and help of lawyers in order to maintain personal dignity and privacy of family units.

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Category Family Law, Other Articles by - Prakash Yedhula