Shelving the decision to allow an amendment of the marriage laws to include ‘irretrievable breakdown’ as an additional ground for seeking divorce will be a regrettable step. This progressive amendment, conceived mainly on the recommendation of the Law Commission and on the strength of suggestions from the Supreme Court in a number of cases based on the experience of administering divorce laws, would help expedite what has always been a difficult and painful process. The draft has already been fine-tuned to protect the interests of women and children affected by divorce. When the amendment was initially introduced in 2010, it sought to waive the waiting or cooling-off period of six months before considering a motion for divorce by mutual consent, but a parliamentary committee found this unnecessary. Secondly, the panel wanted better safeguards for women’s property rights and also desired that the clause protecting the interests of children born during the marriage be extended to adopted children too. Subsequently, the draft was changed to the effect that the waiting period could only be reduced by the court under some conditions. If there was any evidence that it would cause financial hardship to the wife, the court cannot grant divorce without making arrangements for compensation, including a share in property, to her. Financial arrangements should be made for the maintenance of children, including adopted children and unmarried or widowed daughters with no means of financial support. The amendment was passed in the Rajya Sabha in 2013, but not in the Lok Sabha.
A common argument from those opposing the present amendment is that the provision for divorce by mutual consent adequately covers the situation of a marriage lapsing into dysfunction. Groups purporting to protect the ‘rights of men’ also argue that a woman could enter into a sham marriage and later walk away with the husband’s property by getting it annulled at will. Some make extreme claims that it could destroy the institution of marriage and even encourage live-in relationships. Such scenarios should not be used as a pretext to stymie well-intentioned amendments that seek to break matrimonial deadlocks by recognising breakdown as a judicially sound reason. In fact, the Law Commission and the Supreme Court suggested that irretrievable breakdown be added as a ground only to put an end to the ‘fault theory’ as the basis for annulment. Giving up this legislative change to the Hindu Marriage Act and the Special Marriage Act will be an unwarranted concession to moral conservatism. The government would do well not to abandon the long-overdue amendment that will take jurisprudence forward, strengthening as it does individual rights.
