Marriage Laws (Amendment) Bill 2010: Constitutional Validity

The Marriage Laws (Amendment) Bill, 2010 is an attempt to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, to provide therein irretrievable break down of marriage as a ground of divorce. The Bill would provide safeguards to parties to marriage who file petition for grant of divorce by consent from the harassment in court if any of the party does not come to the court or willfully avoids the court to keep the divorce proceedings inconclusive.

At present, various grounds for dissolution of marriage by a decree of divorce are laid down in section 13 of the Hindu Marriage Act, 1955. The grounds inter alia include adultery, cruelty, desertion, conversion to another religion, unsoundness of mind, virulent and incurable form of leprosy, venereal disease in a communicable form, renouncement of the world and not heard as being alive for a period of seven years or more. Section 27 of the Special Marriage Act, 1954 also lays down similar grounds.  However, section 13-B of the Hindu Marriage Act and Section 28 of the Special Marriage Act provide for divorce by mutual consent as a ground for presenting a petition for dissolution of marriage. The said sections inter alia provide that a petition for dissolution of marriage by mutual consent, if not withdrawn before six months after its presentation or not later than 18 months, then, the court may, on being satisfied after making inquiry, grant decree of divorce by mutual consent. However, it has been observed that the parties who have filed petition for mutual consent suffer in case one of the parties abstains himself or herself from court proceedings and keeps the divorce proceedings inconclusive. This has been causing considerable hardship to the party in dire need of divorce.

Incidentally, it may be pertinent to point out here that such a legal proposition has been recommended by the Law Commission of India in its 217th report on ‘Irretrievable Breakdown of Marriage – Another Ground for Divorce’. Further, the Hon’ble Supreme Court, in the case of Ms. Jorden Diengdeh Vs. S.S. Chopra reported in AIR 1985 SC 935 and in the case of Naveen Kohli Vs. Neelu Kohli AIR 2006 SC 1675, has observed and recommended that irretrievable breakdown of marriage should be incorporated as another ground for grant of divorce.

In the case of Chandralekha Trivedi v. S.P. Trivedi [(1993) 4 SCC 232], the Supreme Court has not used the term irretrievable breakdown of marriage but has defined that the marriage is ‘dead’. Husband initiated a divorce proceeding on the ground of cruelty and also wife’s intimacy with young boys, after the nine years of marriage. Wife also made similar allegations against the husband. Their only daughter was already married when High Court granted a divorce decree. On appeal, Supreme Court felt that it would be futile to decide the allegations and counter-allegations as the marriage became dead.

The Act aims to provide safeguards to parties to marriage who file petition for grant of divorce by consent from the harassment in court if any of the party does not come to the court or willfully avoids the court to keep the divorce proceedings inconclusive.

In Sanghamitra Singh v. Kailash Singh AIR2001 Ori.151, the husband sought divorce. The wife informed the court that the husband had already clandestinely married another lady, and a criminal case had already been filed against him. Granting the divorce the court observed: “Whether the husband has married for second time or not, it is now clear that the marriage has irretrievable broken down and none of the parties’ wants restoration of marital tie…. Accordingly by applying the doctrine of irretrievable breakdown, we grant a decree of divorce upon consent of both the parties.”

Supreme Court in Naveen Kohli v. Neelu Kohli 2006(3) SCALE 252 has recommended an amendment to the Hindu Marriage Act, whereby either spouse can cite irretrievable breakdown of marriage as a reason to seek divorce. The Bench comprising Justice B. N. Agarwal, Justice A. K. Mathur and Justice Dalveer Bhandari said, “we have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of the fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of 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 the tie the law in such cases do not serve the sanctity of marriage, on the contrary, it shows scant regard for the feelings and emotions of the party.”

Marriage Amendment Act 2010 does not violate Indian Constitutional provisions:

In Smita Dilip Rane v. Dilip Dattaram Rane (AIR1990 Bom.84) it has been observed that the parties who have filed petition for mutual consent suffer in case one of the parties abstains him or herself from court proceedings and keeps the divorce proceedings inconclusive. “The law cannot compel a woman, who is emotionally and mentally unable to cope with a marriage, to remain bound in wedlock to her spouse even when it is established that the marriage is dead. The compulsion upon wife to obtain the consent of the husband to maintain and prosecute a petition of divorce by mutual consent is violative of the principles of gender justice and thereby of the Article 14 and 21 of the Constitution,”

At present, various grounds for dissolution of marriage by a decree of divorce are laid down in section 13 of the Hindu Marriage Act, 1955. The grounds inter alia include adultery, cruelty, desertion, conversion to another religion, unsoundness of mind, virulent and incurable form of leprosy, venereal disease in a communicable form. This Amendment is just adding one more Ground for divorce which is already a ground. Nobody thought much about the fact that divorce by mutual consent, sold to us as a recent ‘modern’ invention, has in fact always been an integral part of traditional Hindu and other personal laws, including Muslim law.

Conclusion

Thus we can conclude that seeking a divorce in case marriage goes bad will now become easier with the government on Thursday approving a bill that seeks to amend two Acts governing marriages. The amendment makes it possible for anyone to seek divorce by proving that there has been “irretrievable breakdown of marriage” and escape the delays and “harassment” caused because of one party not turning up in courts. The Marriage Laws (Amendment) Bill 2010 was approved by the Union Cabinet chaired by Prime Minister Manmohan Singh. The Bill provides for amendment of the Hindu Marriage Act 1955 and the Special Marriage Act 1954, The Bill would provide safeguards to parties to marriage who file petition for grant of divorce by consent from the “harassment” in court if any of the party does not come to the court or willfully avoids the court to keep the divorce proceedings inconclusive.

The amendment bill has been prepared on the recommendations of the Law Commission as well as the Supreme Court that “irretrievable breakdown of marriage” should be incorporated as another ground for grant of divorce. The new clause will be in addition to the existing grounds for divorce include adultery, cruelty, desertion, conversion to another religion, unsoundness of mind, virulent and incurable form of leprosy, venereal disease in a communicable form, renouncement of the world and not heard as being alive for a period of seven years and its provisions are not against the principles laid down in the Constitution of India.

Article by-

Abhijeet Singh

IVth year BBA.LLB

Symbiosis Law School

[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]

By Competition2011 on April 13, 2011 · Posted in Family Law

5 Comments | Post Comment

Dr. GK Goswami IPS says:

Dear Abhijit
very nice write up indeed. keep it up
gud luck
Dr. G. K. Goswami, IPS
Seninior Superintendent of Police
ATS Uttar Pradesh,
Lucknow- 226 001, India

Mobile: +91-9838822220
Email: goswamigk_ips@rediffmail.com
goswamigk.ips@gmail.com

Homepage: http://goswamigk.indianscholars.org.ingk goswami

Posted on April 14th, 2011

Akhil Dua says:

Abhijit,

Good job on the article. It is about time that the courts understand that marriages can break due to lack of compatibility amongst couples. Like you said, this is not a recent discovery but has always been around.

Although I am happy that two people who are not happy with each other will have another option to opt out from the marriage, I am also afraid that couples might not try enough to prevent their marriage from breaking down.

Statistics are showing increase in divorce rates every year in India and this will definitely contribute for further rise – good or bad for society, time will decide…

Posted on April 17th, 2011

swati vyas says:

very perceptive approch…….gr8 views dear…………

Posted on July 17th, 2011

jamai of law says:

I disagree and the analysis is absolutely shallow.

Intentions aren’t matching to actions here.

Who to decide ‘whether marriage is dead or NOT’?
(party who is claiming/walking out or opposite party?)
(Will any plaintiff of divorce petition ever say ‘marriage is in good shape but I want divorce!!!’)

What are the parameters/symptoms of ‘irretrievable breakdown?’
(Does ‘separation period of 3 years’ really say that marriage is broken? Is it not giving a culprit ‘and especially a wife’ an arbitrary option to just walk out and stay apart for 3 years and that’s it!!!)

Then why to have ‘divorce by court order/intervention from court/sanctity of of court to divorce’?
Isn’t the court/judiciary made redundent never than before? Court has only one thing to see whether there is separation of 3 years or not’ and print a stamp on the same!!!!

Why don’t we just make it as a ‘divorce registration’ process instead?

By making this amendment, we have nullified the very intention/importance of ‘Court’s consent or Court’s decision mandatory any marriage was about to break apart’.

Why we made ‘marriage by registration’ but ‘no divorce unless sanctioned by a court’?
Reason was that : Legislature wanted to save the institution of marriage. Now, vide this amendment, legislature has made judicial intervention absolutely useless/redundent.

If author is so concerned about so called

“The law cannot compel a woman, who is emotionally and mentally unable to cope with a marriage, to remain bound in wedlock to her spouse even when it is established that the marriage is dead. The compulsion upon wife to obtain the consent of the husband to maintain and prosecute a petition of divorce by mutual consent is violative of the principles of gender justice and thereby of the Article 14 and 21 of the Constitution”

Posted on April 24th, 2012

Amit says:

Dear,
I give below only one reason to show to you that the Marriage Laws(Amendment) Bill, 2010 is unconstitutional.
Only wife can oppose a plea of dissolution taken by husband, a husband cannot oppose a wife’s plea. It, even if made u/A 15(3) of our Constitution, violates A-14 as it fails to satisfy the test of constitutionality provided therein.

Posted on March 11th, 2014