Some revised take after the previous discussion on board already here as in 2 defunct links off-late re-discovered;
Any non violent protest from your end to following application of generic mind of this author to burning generic issue under Family Law ? [J]
The proposed Bill totally ignores the Law Commission’s 71st report and gives no reasonable justification of choosing the period of separation as 3 years instead of 5 years as suggested by Law Commission’s 71st report. It is extremely unfortunate that it seems that such a Bill and a clause has been hurriedly introduced, without any public debate, just to satisfy the case of the daughter of Minister. Just a few days back there were allegations as reported in the Media that one of the Minister was trying to bring her own daughter into a government job and subsequently the entire incident got exposed in the Media. No doubt, the outgoing CVC chief has said that 30% Indians totally corrupt, while 50% borderline.
Suggestion # 1:
Section 13 C(2) should be reworded as under:
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 five years immediately preceding the presentation of the petition.
Again, this Bill unfortunately excludes the possibility that a woman can also be a cause of any sort of marital discord and financial hardship can also be faced by the husband. It just takes into consideration that irrespective of the fact on who is petitioning for the divorce, it the husband who is assumed to be one guilty of breaking the marriage and relief can be claimed unconditionally only by the wife.
This Bill would be widely misused as the husband will be forced to ‘buy’ a divorce, while the wife can choose to walk out, at her whims and fancies. Moreover this Bill totally excludes the possibility that the husband can also face financial hardship. The current concept of gender neutrality like that of Section 24 of the Hindu Marriage Act which takes into consideration that both, the husband and the wife can face financial hardship has been totally ignored in this Bill, specially in this section.
The present Section 13D of the Bill, reduces the husband to a mere witness to the proceedings, even when he is facing financial hardship. Husbands will be thus forced to pay their way out to wife’s and this will lead to condition as similar to the observations made by Hon’ble Supreme Court in misuse of 498a as “Legal Terrorism”.
However in cases where the wife is petitioner for divorce and where she may also be guilty of adultery, or crime against the husband and his family or misuses the other gender biased legislations like 498a and DV, she can easily choose to just walk away from the divorce without having to satisfy any conditions whatsoever. In other words the husband will have absolutely no defense and will be stuck with court cases like 498a and DV, running for years on, while the wife can happily get the divorce as she likes. Moreover there would be cases where the husband is all in will to save his marriage, but under the present format of the Bill, the husband will not have any legal remedy to save his marriage. The Government is thus forcing a Divorce on an unwilling husband just because the wife want’s it (or rather one Minister’s daughter wants it) and thus the husbands will have absolutely no legal remedy, relief or right, even to oppose the same, even for the sake of his children. This is simply shocking!
Moreover this Bill is totally UNCONSTITUTIONAL and it takes away all the rights of the husband, even to defend himself or even to save his own marriage. A wife would stay away from the husband and would automatically get a divorce by default after 3 years, without any fault of the husband who would also have no right or say altogether on the same. Article 15 of the Constitution of India, prohibits discrimination against any citizen on grounds of religion and s*x, which is exactly this Bill is currently heading for. Article 15 (3) of the Constitution allows laws to be drafted for Women, but that does not mean it has to be done by openly violating Article 15 of the Constitution and that also taking away all the rights of the husbands, even the right to defend himself and save his own marriage, which is blatantly unconstitutional.
It is even more shocking that when on one hand the Government talks of Gender Neutrality in all Laws, the same Government on the other hand the is now trying to frame laws which are horribly gender biased.
Moreover the Law Commission’s 71st Report was drafted way back in 1978, when biased laws like 498a and DV Act were not in existence which were enforced only in 1983 and 2006. Hence Law Commission had not considered quashing of such cases against husband and his families as a precondition at that time, while granting divorce under Irretrievable Breakdown of Marriage.
Currently more than 3 crore cases are pending before various courts. The National Mission for Delivery of Justice and Legal Reforms in its blueprint for Judicial Reforms have suggested the top two cases which are presently choking the dockets of magisterial and specialized courts, are:
1. Matrimonial cases.
2. Cases under Section 498A of the Indian Penal Code, 1860.
Quashing all cases between the husband and wife while granting divorces under Irretrievable Breakdown Marriage, would immediately reduce the crores of pending cases in courts.
Suggestions # 2:
Section 13D (1) should be reworded as under
13D. (1) Where the husband or the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 13C, he or she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial or other hardship to him or her and that it would in all the circumstances be wrong to dissolve the marriage.
All cases pending, between the parties choking the dockets of magisterial and specialized courts, as also identified as the top two types of cases, in the Blueprint for Judicial Reforms, would also be quashed before granting divorce under Section 13C
Child custody and visitation rights should also be decided while granting divorce under Section 13 C
Child custody and visitation rights should also be decided before granting divorce, while deciding maintenance of the child under this Bill.
Suggestion # 3:
Section 13 E should be reworded as under:
13E. The court shall not pass a decree of divorce under section 13C unless the court is satisfied that adequate provision for the visitation and custody and maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.
In view of the above, Gender Human Rights Society (Regd.) submits that the Union Government may take the following steps immediately
1) That special provision should be made in the Marriage Laws (Amendment) Bill, 2010, to meet the case of your petitioner (s) to ensure that both spouses may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to them and that it would in all the circumstances be wrong to dissolve the marriage, with the amount of financial hardship, being decided by the Court, based on the merits of the case.
2) That special clauses should be inserted in the Bill so that all litigation between the parties are quashed before divorce is granted under this Bill, including but not limited to child custody and visitations between the husband and the wife.