Women may be able to stake claim to marital property if an amendment to matrimonial laws is accepted by the Cabinet. Among the amendments proposed by the government are allowing courts to decide on how property acquired during marriage is shared and powers to waive off six-month period of staying together before divorce can be granted in cases where the separation is by mutual consent. Also, adopted kids are likely to get the same rights as natural-born kids. The Marriage Laws (amendment) Bill, which is likely to come up before the Cabinet on 22.03.2012, seeks to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
The amendments are based on the recommendations of the standing committee on personnel, public grievances, law and justice. The panel had recommended that the government make provisions to ensure that courts, at the time of divorce, can decide on the share of women in the matrimonial property, to which they have contributed during the marriage.
The committee had rejected the government’s proposal to remove the six-month waiting period before moving a joint motion in case of divorce by mutual consent. But giving in to concerns expressed by women’s rights activists, the government has suggested that the judge will have the power to waive off the waiting period. The amendments are likely to stir a debate, with activists opposed to such powers being left to the court’s discretion. Women’s rights advocate and former Law Commission member Kirti Singh said, “This is less than a half measure and requires widespread discussion with women’s groups.”
Studies have shown that in 80% cases, women have no place to go to after divorce and live with their parents. “Women should get half or more of the share of matrimonial property because they have contributed to it. They have no resources to take care of children and the aged, and that must be kept in consideration,” Singh said.
Women’s activist Kalyani Menon Sen, too, expressed concern over the amendments, “There have been a large number of brilliant judgments, but there is a huge section of judiciary that can be extremely anti-women and patriarchal. We have seen some examples of appalling moral policing and we can’t depend in the judiciary to be even-handed always.”
Union Cabinet approved the amendment to Marriage Laws
The Union Cabinet on 22.03.2012 approved the Marriage Laws (Amendment) Bill, 2010 to amend the Hindu Marriage Act The Union Cabinet today approved the introduction of a Bill, namely, the Marriage Laws (Amendment) Bill, 2010 to further 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 wilfully avoids the court to keep the divorce proceedings inconslusive.
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 reported in AIR 2006 SC 1675, has observed and recommended that irretrievable breakdown of marriage should be incorporated as another ground for grant of divorce.
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