The Union Cabinet should be commended for deciding to take on board sentiments widely expressed in Parliament during the discussion on the Marriage Laws Amendment Bill, 2010, and agree to amend it to provide for a clearly defined 50 per cent claim for a wife in her husband's immovable residential property. This is the first time in India — except in Goa where the ‘community property' principle in marriage has existed as a positive legacy from Portuguese times — that a woman's rightful share in marital property has become part of marriage-related legislation. Significantly, a wife will now have claim over residential property acquired by her husband even before marriage. The Cabinet's decision to retain the mandatory six-month waiting period even in case of a divorce by mutual consent is also a well-advised move that would give more room for reconciliation where possible. Under the provisions of the original Bill, this cooling-off period could be waived by a judge on a plea by either party. In large measure, this Bill, which introduces irretrievable breakdown of a marriage as a ground for divorce, could now be said to be a progressive piece of legislation in tune with the times in terms of empowering women. Yet, a wife's share in her husband's other assets is still left to the judge's discretion.
A possible upshot of the proposed enactment, which seeks to amend the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, will be that divorce-related litigation would become even more fraught and protracted than it is now. The stakes being higher for both parties, court battles will be that much more bitterly contested. Looking at the large backlog of pending divorce petitions, the need to take steps to speed up their disposal is clear. The setting up of courts under the Family Courts Act, 1984, does not seem to have helped cope with the rising tide of divorce litigation. More such courts are needed, and their proper and uninterrupted functioning in tune with the spirit of the legislation has to be ensured, in order to enable them to deal with the often traumatic proceedings in a sensitive manner. The objective of the establishment of Family Courts was “to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs.” The government and the judiciary ought to give a hard look at whether that objective has been met. This is also the time to reflect on whether amid all this, enough attention is paid to ensure that children caught in divorce battles get a just and fair deal, too. The child is the first, and often the worst, victim of a marriage gone wrong.
Keywords: Marriage Laws Amendment Bill, women property rights, India marriage laws, India divorce laws, divorce litigation
It is very sad,why government is so keen to destroy the Indian society, marriage is not all about money.the dishonest spouse will take advantage of irretrievable breakdown concept,if the marriage is already broken definitely the couple will go for mutual divorce.then what is the use of this new amendment. rich man will find advantage to leave their wife for younger woman,no fault divorce will completely destroy the Indian society.Men are very clever to buy properties in family members name if he wants to do it strategically.who will define a dead marriage?men intentionally will desert wife for younger woman and after 3 years claim the marriage is dead,will pay her huge amount or property,is this justice.why our government is so desperate to break the homes,and if it becomes a law,what is the use of marriage,even if in live in relationship the law protects the woman in monetary terms.is marriage is only about money.Please save marriages.In India,still marriages are arranged,most of the marriages are broken for mother in law and sister in law,how irretrievable breakdown will be applicable when husband wife donot get enough time to spend together. The culprit will be rewarded for her/his misconduct".The person can take the benefit of his/her own default. irretrievable breakdown is different from conventional jurisprudence on divorce, the person who is innocent will be punished,the person who cause the default can ask for the divorce.
It is very sad,why government is so keen to destroy the Indian society, marriage is not all about money.the dishonest spouse will take advantage of irretrievable breakdown concept,if the marriage is already broken definitely the couple will go for mutual divorce.then what is the use of this new amendment. rich man will find advantage to leave their wife for younger woman,no fault divorce will completely destroy the Indian society.Men are very clever to buy properties in family members name if he wants to leave his wife.
It is surprised to note that the courts are taking such drastic steps to protect the women interest. Women empowerment is one thing but the other side of the husband is ignored. Court says even if the property is purchased before marriage by the husband, the wife has right over the property. It is very imbalanced justice. The moment marriage is dissolved by way of divorce, there and their court has to decide the property of husband. At the most during the marriage and during the earnings of both, if the property is purchased and share is given to the wife after divorce, is understood but on what basis she is given right on property which bought before marriage? I think public opinion should also be considered before giving such decisiions.
I fail to understand why in India even learned people like the editor of a paper like Hindu can't understand the promise given to us by equality of gender? equality of gender does not mean favouring women but it means treating both men and women as same, why only husband has to share his hard earned money ? why not women also share all the property and money they have? what if woman of marriage have property and man of the marriage don't have any? will the Indian justice system give half the home to man to protect his life style as they do with women's? no they wont and there lies the hypocracy of indian society we are cruel to who ever is weak, man woman or whoever in a relationship is weak will get short end of the stick in india, shame of every one who can't even try to formulate a gender neutral bill.
''Even in the Western Countries, where such “No Fault Divorce” is in vogue, only that matrimonial property is considered for sharing that has been acquired during the subsistence of Marriage, by both the partners. The share of division, in the west, also depends on the duration of the marriage. Unfortunately, the present Bill, talks only of division of husbands’ property, whereas the Bill is totally silent on the sharing of wife’s property, which is not practiced, in any other civilized country. All women activists claim, that the wife should get that share, against which she had contributed, during the subsistence of marriage. However, the proposed Amendment is totally silent to justify, what is the contribution of a wife on the property of husband, which was acquired before the marriage.
There are many questions which the article didn't addressed. What
about the women's share in her father's property or her ancestral
property? why the bill not considered as matrimonial property. why
only man's property or his ancestral property considered? Men also
must get share from wife's ancestral property, if we want a fair deal
for both husband and wife. isn't it?
And what about the child custody when divorce is inevitable? Why
shouldn't we go for joint custody? because a child has the right to
access both parents love and care equally. But in this bill, no where
such provision for men. Why this partiality against men?
On the whole it (The bill) simply says.. "husbands money belongs to
family, wife's money only belongs to her". How can it be a progressive
step?
This editorial is disappointing in that it has winked at the
woes of young men dragged to courts under Domestic
Violence Act,2005 and/or Sec498A of IPC.Web site
498a.org will vouch for the predicament of many a groom
on account of ill-considered hasty marriage laws. The
propsed laws will add fuel to the fire.Moreover they will
entail the degeneration of Indian culture by their
seductive influence on marriageable girls to claim the
hand of a rich boy by stooping to any low level they deem
fit.Have we not seen girls vying with each other to marry
a boy from a rich family?This will pave the way for
spurious marriages for gains only to end up in divorces
raising divorces to alarming scale.Gender equality in
marriage laws should on no account be compromised in
marriage laws.Evidently the matter cries for an informed
nationwide debate as urgently as possible.Ripvanwinkles
will perish !
Why is it considered justified?
Girl who has no contribution to family, why should she get anything?
If the attempt is to copy US laws, the same law in US clearly says NO
DIVISION or even Alimony, if the marriage lasted less than 10 Years.
First contribute, clear your duties before asking for rights?
All those who support it are hiding behind women for their oblique
motives.
Seems the author is not aware of the recent ammendments made.
"Yet, a wife's share in her husband's other assets is still left to the judge's discretion. " The share is now 50%. Blindly every wife is entitled to 50% share of her "husbands" property. Whatever be the circumstances. So even if she has committed adultery, or any crime. She will get her 50% share.
The making of a common civil code is very essential for our country
This is a shocking review by an esteemed newspaper like The Hindu. You have commended the effort of giving 50% stake in husband's property acquired even BEFORE marraige as legitimate?? So you want marraiges to become a clear business?? Shame on you. In the west the law regarding this is simple and it is gender neutral. Both spouses are legitimate owners of each other's property acquired AFTER the marraige and that is fair...Please don't create a situation where innocent wives are murdered just for seeking divorce..
Indeed, it is high time that women got a fair share in divorce proceedings.
However, the implementation of these laws is the problem. Take for instance
property ownership which is notoriously difficult to prove in India. How could a
court prove that the land or flat belongs to the husband if it is nominally owned by
his parents or relatives? What about alimony and child support?
Also to be addressed are the issues of social stigma still associated with divorce
which primarily afflict the women. And we have our large rural population where
woman empowerment still remains a distant dream. Legislation which is not
enforced so as to reach out and benefit a majority of the population is toothless
and useless.
Eventually, we need to address other issues such as provisions for pre-nuptial
agreements for settlement of post-divorce issues, and of course a uniform civil
code treating all people the same way regardless of religion, a point which our
politicians are unwilling to tackle.
Any amendment in hindu or muslim marriage act is looked upon by one community as a betrayal of law on the other. Then why not have a Uniform Civil Code (one of the directive principle) for entire marriages in India? 'Marriages are made in heaven' this phrase has lost its essence because of many contributing factors. The most common are increased level of stress, nuclear families, introduction of western prospective towards marriage. Somewhere our baseline has been overshadowed by these factors. The most likely to suffer are children and instead of empowering the one of the two half, it must be insured that children should not have to pay for the misunderstanding between their parents. A law should be made in which both the parents have to contribute to secure a well organised future for their child. I totally agree with ajeet that instead of paying prices the very base of our women should be empowered.
It is, indeed, a commendable step on the part of the government to ensure women are empowered in India. The institution of marriage has failed to give a fair deal to women in this country. Men still decide the fate of their wives, and this is undesirable. The editorial rightly points out that while deciding on issues pertaining to marriage, it is pertinent to ponder over the plight of children who are caught in the divorce war. The State does not have the wherewithal to take complete responsibility of these children. So, laws need to address this issue so that no family acts against the interests of its children.
Rather than wasting money and time in establishing courts to ensure the
breakdown of marriage there should have been efforts to establish more
and more family courts to settle disputes and quash the anger of the
two spouses. No doubt there must be efforts to ensure women empowerment
but empowerment rendered by speedy and irretrievable breakdown of
marriage is not worth. Empower women by educating them, empower them by
letting them feel, their husband's property is not only 50% rather 100%
theirs. But also make them realize, to exercise this 100% right they
need not break away. The legislation, I am afraid, would make marriages
easily dispensable. The children will suffer as pointed out. Let there
be room be enough counselling, enough cooling and reunion. Times are
changing. Women too are earning bucks. In near future we'll need some
legislation entitling husband of 50% share in wife's earning by this
logic of "sense of broken entitlement"!!!!!
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