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Raj Kumar Makkad (Adv P & H High Court Chandigarh)     26 August 2013

Hma amendment biill 2013 oassed by rajya sabha

·  IRBM BILL PASSED IN RAJYASABHA

IRBM after..2013 amendments.....

13-B.Divorce Mutual Consent (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

 

 (2) Upon receipt of a petition under sub-section (1), the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. Provided that an application being made by both the parties, the court may reduce the period specified under this sub-section to a lesser period and the court may waive off the requirement for moving the motion by both the parties, if it is satisfied that the parties to the marriage are not in a position to reconcile their differences. Provided further that where one of the parties fails to appear before the court within a period of three years from the date of presentation of the petition under sub-section(1), the court may on an application made by the other party, waive the requirement of moving the motion by both the parties.

 

13-C. (1) A petition for the dissolution of marriage by a decree of divorce may be presented to the district court by either party to a marriage whether solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 2013, on the ground that the marriage has broken down irretrievably.

 

(2) The court hearing a petition referred to in sub-section (1) shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years immediately preceding the presentation of the petition.

 

 (3) If the court is satisfied, on the evidence, as to the fact mentioned in subsection (2), then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce.

 

 (4) In considering, for the purpose of sub-section (2), whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months’ in all) during which the parties resumed living with each other, but no other period during which the parties lived with each other shall count as part of the period for which the parties to the marriage lived apart.

 

 (5) For the purposes of sub-sections (2) and (4), a husband and wife shall be treated as living apart unless they are living with each other in the same household, and reference in this section to the parties to a marriage living with each other shall be construed as reference to their living with each other in the same household.

 

13-D. (1) Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 13C, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage.

 

(2) Where the grant of a decree is opposed by virtue of this section, then,— a) if the court finds that the petitioner is entitled to rely on the ground set out in section 13C; and

 

 b) if, apart from this section, the court would grant a decree on the petition, the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if, the court is of the opinion that the dissolution of the marriage shall result in grave financial hardship to the respondent and that it would, in all the circumstances, be wrong to dissolve the marriage, it shall dismiss the petition, or in an appropriate case stay the proceedings until arrangements have been made to its satisfaction to eliminate the hardship.

 

 13-E. The court shall not pass a decree of divorce under section 13C unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.

 

Explanation.— In this section, the expression “children” means— (a) minor children including adopted children; (b) unmarried or widowed daughters who have not the financial resources to support themselves; and Insertion of new sections 13C, 13D and 13E. (c) children who, because of special condition of their physical or mental health, need looking after and do not have the financial resources to support themselves.

 

13F (1) Without prejudice to any custom or usage or any other law for the time being in force, the court may, at the time of passing of the decree under section 13C on a petition made by wife, order that the husband shall give for her and children as defined in section 13E, such compensation which shall include a share in his share of the immovable property (other than inherited or inheritable immovable property) and such amount by way of share in movable property, if any, towards the settlement of her claim, as the court may deem just and equitable, and while determining such compensation the court shall take into account the value of inherited or inheritable property of the husband.

 

(2) Any order of settlement made by the court under sub-section (1) shall be secured, if necessary, by a charge on the immovable property of the husband.

 



Learning

 84 Replies


(Guest)

A dooms day is coming very soon for Indian marriages. I bet Half of the population of India will get severe jerk due to this Pleasing gift offered by our Hon'ble Law minister Mr. Kapil sibal to our Modern Abla Naari.


 

But as it is read as IRBM some advantages are also there:


 

1. The couple who are in early days of turmoil will be really benefited by this law.As they will be soon freed from their dead marriages.

 

2. The husbands who were suffering from their lovely wife after giving maintenance also will be treated now with Land Lord for their said wife.

 

3. This amendment is boon for for such couple who had no child in wedlock. As the couple can be freed without any hardship i.e mentioned in U/s 13 E

 

4. All young husbands will be more smarter to get rid off from their own immovable & movable properties.So, no tension for Young brigades who are falsely trapped in social marriages just for extortions.

 

5.The Last difficulty is the First opportunity to get desired success.


Best of Luck for Indian Judiciary to tackle record numbers of divorce cases in future.


India is going to be divided by HMA amendment bill 2013.


regards,

A sufferer..




4 Like

sandykrish (Interested in Family LAW)     26 August 2013

Hi All,

 

Can you please brief and throw enlightenment on the new law being passed at Rajya Sabha?

R K........ (Analyst)     26 August 2013

Is there any minimum time period of marriage after which a women can claim right in husband self acquired property. In case the separation has happened just after 6-7 months of marriage, and the wife is working, even then this law will be applicable ?

Please put some light

Samir N (General Queries) (Business)     26 August 2013

I presume this does not apply to those who are divorced already but other proceedings may be ongoing?

"Without prejudice to any custom or usage or any other law for the time being in force, the court may, at the time of passing of the decree under section 13C on a petition made by wife, order that the husband shall give for her and children as defined in section 13E, such compensation which shall include a share in his share of the immovable property..."

So, if the decree is already passed, this is not applicable, even though, lets say maintenance disputes are ongoing?

fighting back (exec)     26 August 2013

Will the new law have retrospective effect or from now onwards after being passed in rajya sabha

Ranee....... (NA)     26 August 2013

Thanks Makkadji for the update.

Though inherited property is not included directly it is not safe.

fighting back (exec)     26 August 2013

though the bill still remains to be passed in loksabha..it hasnt taken the shape of law as yet.......so we have buffer time to sell of the property

Ranee....... (NA)     26 August 2013

If i am not wrong this law is passed in Loksabha last year.

Samir N (General Queries) (Business)     26 August 2013

It was passed by the cabinet last year not by the whole Lok Sabha. Thats what I understand.

The important question is: When will it become applicable. Retro is not possible but even prospective leaves questions: 

a. What about ongoing divorce proceedings. Would it be applicable.

b. What about divorce granted but appeal pending?

b. What about proceedings in which divorce is granted and finalized after appeal but maintenance issues remain?

IMPORTANT QUESTIONS.  


(Guest)

Since it has been passed by Rajya sabha with any of the amendments then Lok sabha will only look after this amendments and will finally sent to the President Mr. Pranab Mukherjee to make it an ACT.

The gals would pray to their god as plz pass it before 2014 election or else who knows A different Law minister with different government would aad something Less surprising either for gals or for boyz..


R K........ (Analyst)     26 August 2013

It should be for new cases. Should not be applicable on ongoing cases. Also some other important questions are

1) If the women has opted for divorce and husband didn't want it, even then his self acquired property will be in danger ?

2) If women is earning a good amount ?

3) If the women opts for divorce just after 6-7 months of marriage. There should be a time limit of minimum 3 years of marriage ?

If these things are not considered seriously, then marriage will become a business for women

2 Like

Shantanu Wavhal (Worker)     27 August 2013

soon we will see FANTASTIC INTERPRETATIONS by higher courts ...


all ur queries will be resolved very soon ...


यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... यम-पोवर्ड़ ... 

Tajobsindia (Senior Partner )     27 August 2013

1.    In my opinion “no need to panic”.

2.    This Amendment in HMA / SMA needs to be settled eventually by Hon’ble SC very soon on demands of aggrieved parties (mostly I see husband and his side of HUF, siblings) challenging the Amendment all the way to Hon’ble SC.

3.    The work load of seasoned ld. Advocates has doubled as Amendment is biased, un-Constitutional, not clear worded and leaves a lot to ld. Judges, ambiguously worded and division in self acquired and/or inherited property is not that easy when simultaneous Amendment to Hindu Succession Act is not carried out is my view.

4.    There is another grave area for seasoned ld. Advocates to challenge the Amendment which it is eventually going to leave behind i.e. “retrospective or prospective operation" just like Domestic Violence Act which still not decided in tombstone whether DV Act is retrospective or prospective by Hon’ble SC.

I am amused to note this passed Amendment and soon to become a Law has infact made young married woman more weaker.
Reasoning:
Legislature r/w Judiciary could not give a young married daughter her natal home inherited property rights upon her marriage literally, yet in over ambition they passed on the buck now to her husband, his siblings and In-Laws to do the Orwellian un-doing. 

This Law will keep a young daughter (now married without natal home inheritance) busy opting “irretrievable breakdown of marriage” as ground for divorce rest of her youthful productive years in various courts corridors when she sees not only her husband contesting but her In-laws and her husband sides siblings also contesting separately ‘saving their hard inherited properties’ against her OR a marriage now on will take place only when daughter receives her inheritance rights before marriage from her natal home on lines of
equity - parity
.

However, the workload and good fortunes of ld. Advocates has been thus blessed in coming General Election year 2014.
Amen..................

2 Like

fighting back (exec)     27 August 2013

great reply TAJOBS.................all questions answered...


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