Monalisa Roy. However, she dumped him within a few years, after
emptying out his bank account. Almost a year has passed since then and
Mitra wants a divorce but breaking his trust is not an acceptable
ground to file for divorce. He has to wait for another year before he
can seek divorce on grounds of desertion. "How I wish there was a law
to obtain a divorce immediately," he laments. "I feel helpless at
times. The marriage is beyond repair but I can't file for divorce. And
I'm scared that my wife will slap a cruelty case against me anyday. If
only I could file for divorce immediately, life might be a little
better."
If recent recommendations made by the Law Commission of India are
accepted, Mitra's wish could come true. In its 217th report to the
Union minister for law and justice, the commission has "suggested that
immediate action be taken to introduce an amendment to the Hindu
Marriage Act, 1955, and the Special Marriage Act, 1954, for the
inclusion of `irretrievable breakdown of marriage' as another ground
for grant of divorce."
At present, Section 13 of the Hindu Marriage Act, 1955, and Section 27
of the Special Marriage Act, 1954, provides grounds for seeking
divorce. "A couple can use irreconcilable differences as a ground to
seek divorce. But this clause is applicable only to divorce by mutual
consent, in accordance with Section 13 (b) of the Hindu Marriage Act,"
says Calcutta High Court advocate Jay Sengupta. To apply for divorce
under this clause, couples have to stay separately for at least a year
and state that they are seeking a divorce because they are unable to
cohabit. Sengupta goes on to explain the difference between
irreconcilable differences and irretrievable breakdown of marriage.
"As mentioned earlier, couples can cite irreconcilable differences if
seeking mutual divorce. The irretrievable breakdown of marriage clause
would be for a warring couple where one of the partners, for whatever
reasons, doesn't want a divorce."
The Supreme Court had in the Naveen Kohli vs Neelu Kohli (AIR 2006 SC
1675) case recommended that the Union of India consider amending the
Hindu Marriage Act, 1955. The commission suo motu took up the study of
the subject. It examined extant legislation as well as a number of
judgements of the Supreme Court and high courts on the subject and
concluded that "irretrievable breakdown of marriage" should be
incorporated as a ground for granting divorce under the provision of
the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954. The
recommendation also requests that the court examine whether adequate
financial arrangements have been made for the parties and children
before granting a decree for divorce on the ground that the marriage
has irretrievably broken down.
"This is not the first time that the Law Commission has made such a
recommendation," says Calcutta High Court advocate Protik Prokash
Banerji. "In fact, it had in the late Seventies recommended the
inclusion of the same ground in the Hindu Marriage Act. However, the
recommendation was not implemented." Will this recommendation meet the
same fate? "Perhaps not," says advocate Amjad Ali Sardar of the
Calcutta High Court. "In those days divorce was taboo. But a lot has
changed since then. Society is not the same nor are values. Today, the
inclusion of such a clause will have its merit. If a marriage is
already beyond repair, what is the necessity of keeping the tenuous
legal relationship intact?"
"According to my experience, it's best to sever a relationship if it
turns sour," says the Calcutta-based justice Malay Sengupta. "One
can't force a couple to stay together if one of the partners is not
keen on keeping the promises exchanged. I personally feel that with
changing times the divorce laws need to be modified. However, divorce
on this ground should be granted only if the couple has cohabited for
at least a year."
Most legal experts also feel that it is difficult to get a divorce by
proving grounds such as cruelty, desertion and others as mentioned in
the two acts. "It is easier to get a mutual divorce where both
partners want it. However, in most cases one of the partners contests
the divorce. The irretrievable breakdown of marriage clause will make
things easier in such cases. The procedure for seeking divorce under
this ground remains the same, but this becomes an additional ground.
This will be handy as it has been observed in many cases that a couple
is just incompatible but since that is no ground for divorce, certain
acts like cruelty, sodomy or mental abuse have to be proven and that
can be difficult," says Sardar.
Banerji, for one, does not believe in making it easier to get a
divorce. "With the Indian divorce laws being quite rigorous, the
divorce rate is quite low in our country. But once the recommendation
gets approved the divorce rate will soar for sure. The irretrievable
breakdown of marriage clause will make divorce easier, for then a
partner will be able to get a divorce even if the other refuses to
grant one."
Marriage therapists too feel that the implementation of this clause
would do more damage to the social fabric. Says Mumbai-based clinical
psychologist and marriage therapist Seema Hingorrany, "Getting such a
recommendation implemented would pave the way for an easy divorce. As
it is, divorce rates are on the upswing and people are seeking divorce
on flimsy grounds. This will just worsen the situation," she says.
"Accepting this recommendation might lead to an increase in divorce
rates," admits justice Sengupta. "But the amendment will be keeping in
sync with the changing times," he points out.
The inclusion of this clause might not push up divorce rates but it
will definitely make it a little easier for those who want to file for
divorce.
source : http://www.telegraphindia.com/1090610/jsp/opinion/story_11088399.jsp
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