In a society like ours, is it necessary to rush through with the “irretrievable breakdown of marriage” clause without examining its impact on the vast majority of poor women? Divorce is still relatively uncommon in India compared to many other countries. The incidence of divorce is barely 1.9 per cent of registered marriages.
What are the laws that need the urgent attention of the government? One that deals with the increasing, and horrific, instances of so-called “honour” killings, where young women and men are being murdered for no other reason than choosing whom they will marry, a right that is guaranteed to them as citizens of this democratic country? Or one that will make divorce easier for those who want to opt out of marriage?
These are not mutually exclusive choices. But because they have a direct impact on the lives of millions of women and men, they cannot be rushed through without adequate thought and debate. On the former, there is still some discussion and no conclusion yet. On the latter, strangely enough, the government seems to have made up its mind and is contemplating introducing a new provision in The Hindu Marriage Act that will permit divorce under “irretrievable breakdown of marriage”.
Divorce is still relatively uncommon in India compared to many other countries. The incidence of divorce is barely 1.9 per cent of registered marriages. This figure of course would not include a much higher percentage of desertions that routinely occur, where men leave their wives and children and live a bigamous life without any fear that the law will ever catch up with them. Such women are left in a limbo, still legally married, unable to go into another relationship, and left without financial support. In a country where poverty and illiteracy are common, the figures if ever collated of such women would be staggering.
Under the Hindu Marriage Act and the Special Marriage Act there are specific grounds on which divorce can be sought. These 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 13-B of the Hindu Marriage Act and Section 28 of the Special Marriage Act also provide for divorce by mutual consent. Under this, both parties have to file a petition in court and are given six months after its admission and up to 18 months to change their minds. If neither party withdraws, the divorce is granted.
The government, and the Law Commission in its 217th report (March 2009), holds that the introduction of a provision of no-fault divorce, that is where neither party has to prove that the other committed an offence such as adultery, or cruelty or desertion to file for a divorce, will assist many couples who get caught in legal wrangles when their marriages have already broken down. Sometimes, even when they use the provision of mutual consent, one or the other party pulls out part way through the proceedings, leaving the other with no choice but to resort to a lengthy legal process to get a divorce. The government believes it is introducing this provision to bring such situations to an end.
But lawyers and women's groups, who have known first hand the problems deserted women, or those who are victims of cruelty within their marriages, or have to live with adulterous husbands, say that such a provision will place a bigger burden on women. At present, a mutual consent divorce is the easiest and only possible way if both parties want to break up. Otherwise, one or the other has to prove a “fault”. Women often do not take the first step, particularly those women who are not financially independent, as they cannot pay for the litigation and also fear that even if there is a divorce, the final settlement will not suffice for them to survive on their own. For instance, apart from maintenance, sometimes the court awards a lump sum if a woman is able to prove her husband falls under any of the categories listed for grounds for divorce. But if the woman has to leave her matrimonial home, she would not have the resources to get another house unless that was part of the final settlement. And the current law does not mandate a formula for a financial settlement that would take care of the woman's shelter needs.
In countries around the world, including the United States, where the grounds of “irretrievable breakdown of marriage” are part of the statute, there has been considerable debate over its introduction and it has been followed by clear and specific mandates on division of property. In some states in the US, everything is divided equally between the couple after a divorce on these grounds. In India, there is no such provision in the existing law or in the contemplated new addition.
What this will mean in real life is that an adulterous husband can file under this addition to the divorce law and even if he agrees to pay alimony, he is not bound by law to ensure that the woman has adequate resources to survive on her own. Also, in a society where being married grants women “respectability”, a divorce means losing that status. There is no legal compensation for this and no sign that our society is likely to change its attitude toward divorced or unmarried women in a hurry. Hence, women will always hesitate before filing for divorce.
The bottom line is that provisions for divorce are not gender neutral in a society like ours where there is no level playing field for men and women. Therefore, before any such provision is introduced, there needs to be a much closer scrutiny of its impact on poor women without independent economic resources who constitute the majority in this country. You cannot bring in a law that would ease the way for a small minority without considering the impact on this majority.
This is not to say that women or men should be permanently tied into loveless or cruel marriages. Divorce is a way out of such situations and marriage is not sacrosanct as some hold. But the provisions for divorce must be just. Of course, women who have a hard time proving that their husbands are cruel, or bigamous, could also use this provision to end their marriages. But such women are usually those with financial independence and the ability to negotiate a decent settlement. The majority of women would not dare use the provision for fear that they would be left with nothing. On the other hand, for their husbands, this would be a very handy piece of law to opt out of the marriage, and then go in for another.
Let me end by quoting from a reader who responded to the news that the government was going to introduce this provision. Writes Dr. Mitu Khurana from Delhi on the Economic Times website (June 14, 2010):“My husband threw me out because I could not give him sons. I have two daughters. After trying for four years to make my marriage work, for the sake of my daughters, now I have initiated legal action against my husband. So has my marriage broken down irretrievably? Now my insistence not to take any more abuse, has it become a ground for my husband to take divorce and remarry to have sons, which he so badly desires? And what is the fault of my daughters in all this? Just that they were born daughters. That means now no mother should take the stand I took, and simply go ahead with female feticide.”
This is just one voice. There are many more. They need to be heard and heeded. Why is the government in such a hurry?
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