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.
