“Define ‘irretrievable breakdown of marriage'”
The Department related Committee on the Ministry of Personnel, Public Grievances and Law and Justice, — headed by Congress Member of Parliament Jayanthi Natarajan, — while being in favour of the introduction of ‘irretrievable breakdown of marriage' as a new grounds for grant of divorce in the Hindu Marriage Act and Special Marriage Act, has suggested that some vital social issues should be addressed before this was put in place.
Though the Committee, which went into the Marriage Laws (Amendment) Bill, 2010, was in agreement with the rationale behind the Bill, it was of the view that since some of its clauses had vital implications, it must be reviewed.
It stated so in its report on the Bill submitted to Parliament. The Bill, after its introduction in the Rajya Sabha in August 2010, had been sent to the Committee for feedback.
The Committee recommended that the Bill should provide for some safeguards so that the new grounds for divorce was not misused. It wanted the government to consider defining the phrase “irretrievable breakdown of marriage” in the Bill so that uniform standards were followed by the courts in dealing with divorce petitions.
The report said: “Though the Committee is in agreement with the rationale behind the Bill, [it] feels that some of its clauses, which have vital implications, need to be reviewed.”
On the provision for doing away with the six-month waiting period before moving a joint motion in the case of divorce by mutual consent, it said: “The Committee is of the view that the existing provisions of [the] law for divorce by mutual consent are fair and reasonable and that the prevailing cooling-off period be retained so as to protect and preserve the institution of marriage.”
The Committee said that during its deliberations it did not come across any view expressing hardship over the existing provisions providing for a cooling-off period in the case of divorce by mutual consent. The existing provision of law (that the parties to the marriage must have lived apart for a continuous period of not less than 3 years) seemed to function well as it provided an opportunity to the parties to a marriage to think coolly before finally moving jointly for divorce.
On the protection of the rights of wife and children, the Committee recommended that the term “grave financial hardship” be defined so that there was less ambiguity, and wanted the provisions in the Bill to be further reviewed so that the interests of women, during divorce proceedings, were better safeguarded.
The Committee wanted adopted children to be covered too, pointing out that the proposed Bill covered only those children “who are born out of the marriage, thereby leaving out the case of adopted children”.
The Committee wanted the government to make adequate provisions in the Matrimonial Law to ensure that the courts, while adjudicating on divorce petitions, also decided upon women's share in the matrimonial property so that they were not deprived of the assets/properties toward which they had contributed during the continuance of marriage.
Founder and President of the Children's Rights Initiative for Shared Parenting (CRISP) Kumar V. Jahgirdar, in a statement, welcomed the panel's recommendation for amendments on issues relating to children. “There is a presumption now that [the] child will be better served [if the mother is the sole custodian]. This is leading to a fatherless society as divorce rates are going up, and research has shown that children, without the love and affection and guidance of [the] father, are far more likely to turn out [as] school drop-outs, take drugs and become victims of teenage pregnancy etc.”