"indian Divorce Law Needs Amendment" - Law Minister
DIVORCE LAW AMENDMENT AS PER LAW COMMISSION"S RECOMMENDATION IN
2009 "" NOT YET DONE
Another case of: - JUSTICE DENAIED when
JUSTICE DELAYED
Groom: Aged about 40yrs, Bride: 41 yrs, Son: Aged about
12yrs
PAST
On or about 1984, I, at the age of 15 years proposed to a 16-year girl "" and the story began. I forgot that I lost my father at the age of 11 years, had a sister aged 6 years and my widow mother. I had lots of responsibilities to carry out as the only son of my beloved father. In a romantic mood, I forgot the difference in financial status of the two families. The story could have been entirely different if the girl would have refused me then and there, but she accepted me. But her family was "matured" and they opposed it in every possible way. I had my first big exam (10+) just at door. In spite of broken heart I tried my best and got 70% in the exam.
Thereafter I could realise the real state of affairs, as the girl became totally silent. But I wanted to meet the girl at least once and finally found her in July 1988, in her college, 15 km away from her home. In between, the girl never informed me about her whereabouts. Again on that day the girl agreed to "CARRY ON" the romance for the time being.
In 1994, myself got married after lots of inside drama from her family. Her father could never accept me "from heart" as an
eligible husband of his daughter and he did a "FAVOUR" to us; by
managing to get a job for her, in a school 65 km away from her in- law"s house, just a month before the said marriage. Meantime I managed to make a house with the proceeds received from LIC, obtained after my father"s death. At that time, I was looking after the "small" business left by my father. But her father could never rely on my financial condition and his daughter continued with the service by ferrying daily up and down 130 km. She used to stay very often at her father"s house (close to workplace). She conceived in 1995, but had a miscarriage, and she had two more miscarriages after that in two consecutive years. I lost the joy of being a FATHER and the doctors told specifically that all these miscarriages happened due to her daily strenuous journey. In between, I have decided to take up a job. And my wife finally decided to leave her job, her father also agreed (after some drama again) to the decision. And just after that she became the "proud mother" of our only son. But she could never forgive me for that decision, although she made her own decision always.
I started feeling humiliated for the indirect responsibility for the cause of leaving her job. The misunderstanding began and it increased day after day. I concentrated on my job, and obtained recognition from my employer. I was earning enough to carry on my responsibilities. I built up another floor in the house, since my mother had a long desire for that. I performed my last pending duty by getting my sister married in 2006. I started realising slowly, that I am nothing but a moneymaking machine for my wife. Needless
to say, in between, the marriage lost all its charm in all way. My wife became a "lady" by then and was reasonably satisfied with
her monetary status, and I became a late 30"s gentleman and kept
myself satisfied with my job with an understanding that for the sake of my son, we should stay together.
But from 2007, she started taunting me even in front of my son. I became mentally broke. My health was broken, started suffering from IBS, BP etc. (diseases from tension and mental unrest) and
started thinking about separation and divorce. I had to take sedative regularly. At the same time I was worried about my son"s future. We were sleeping in different rooms from 2008. My wife stopped using Sindoor from 2006. I really wanted to forget all her past begaviours as bad dreams, but I couldn"t. I love my job; it has given me my own identity and before the situation affects my job performance, I wanted to end it. I was in a dilemma till April 2009 (on the death anniversary of my father); when she humiliated me about my parents and myself with some nasty words ("you have some problem in your blood, that"s why I am worried about my son"s future staying with you"). I have finally decided for DIVORCE. Previously, she said many times that she would also prefer the mutual application for Divorce. But this time she disagreed and after discussing with her father, they demanded huge ransom money as "compensation". She also told me that as divorce is inevitable, one of us should leave the house. I wanted to provide my son at least the same house after separation, which I felt necessary for my son"s upbringing. I shifted to a rented apartment near my place of work in July 2009. She was taking money (whatever needed) from me as usual and delaying the filing
process for any separation, keeping the same humiliation process on. I agreed (also paid till date) to pay all necessary expenses for
maintenance of my son and wife, including the maintenance for the
house where they are still staying with my mother. After all this in
25 years, her father again failed to rely on me. Earlier, I had no money, so they hesitated to get myself married to her. But now, they do not know how much money to claim from me, to spoil me even after Divorce, and that is why they are hesitating to go for a mutual divorce. So I had no other alternative to file the divorce petition in September 2009. I know lots of odds will come from my mother and relatives, as divorce is still considered as a social taboo. Each marriage is between two individual "" not between "Ideal Wife" and "Ideal Husband". I am responsible for my job (doing it last 13 years) as well as my family. I belong to a social class and agree to pay any reasonable maintenance (the only sub
clause was recommended as check measure for divorce for
Irretrievable Break Down) as decided by the Honourable Court.
Contest divorce itself is a very tough decision. Even in my professional life, people are not taking it easily. Still I want to take my own black spots, my failure in the marriage - to the public, at least to the people who matters; cant play hide and seek game anymore. I stopped myself several times; thinking about my son, but he should also better see one parent than parents without love or respect for each other. Perhaps by staying apart both of us can maintain a healthy relation with him.
PRESENT
[ Lots of incidents happened in between: -
In October, I felt sad for my son (but nothing for my wife) and came to my old address. But the "drama" continued. I got seriously depressed after noticing my wife"s behavior. Actually she got
much more "CRUEL", and silently (sometime with abusive language in a very low voice) she started humiliating me. Finally,
I went to a psychiatrist. I was suffering from a tremendous depression and trauma for my wife"s behavior. After being checked up by 2 more doctors, I am taking anti-depressant drugs
since then. Recently (January, 2009) I got a "fit certificate" from Doctor, but still having medicines. In between, she forced to bring all household goods from my rented apartment and stopped to me
sell the same, although some items (like fridge) were duplicated. I really got spellbound noticing her attitude. She forced me to shift to 1st floor leaving my mother on ground floor. On 1st floor we were sleeping in different rooms .Now I am again residing at my rented apartment. ]
Now it"s already 5 months gone after my filing. The first date was in Dec 2009. On that day I just got another date. And on the next date also, I shall surely get just "another date."
Is not this the right (if not delayed already) time to address the problem associated with Indian Divorce Act itself? Please note, I am not the 1st to say this, the law commissions already felt this in
1971 and 2009 (reports enclosed). Both "seriously" recommended introducing THE IRRETRIEVABLE BREAK DOWN OF MARRIAGE as another ground for divorce. We have now a "Fault divorce" and mutual divorce. When my partner and me can"t agree on a less affecting thing like "mutual divorce" (which means to break the tie of marriage), how can we STAY TOGETHER in marriage thereafter? All of us know that, staying together (in any form) requires much more agreement between any two people than to stay apart. That means I have to request (or beg or buy) my wife to be free from marriage, just like a sentenced captive from the
Jail. Judiciaries indirectly being used as a tool to bargain terms for divorce, in cases like this. Yes, when there is legal battle between
couple, who are staying separate over a year, the only motto can be
to get a "good bargain" or to harass one spouse by mere non- cooperation. My wife now more " cruel" in behaviour. She is fighting legally with me "" that means she don"t have any
"emotional" dependence on me. When we talk about our "old tradition of marriage" we often forget that, no "traditional" wife
will come to court to keep or leave her marriage.
I would like to mention another thing. My petition primarily based on "CRUELTY", as the most suitable "available ground" for divorce. But one has to understand that fairer sex normally don"t act "cruel" by physical nature. Even in some cases "SILENCE" or "ABSENCE OF CORDIAL NATURE" between husband and wife can be cruelty of severe nature, which happened in my case. And when a person like me, who act as a Manager in a reputed company, files the divorce for wife"s cruelty, it can effect my
professional reputation to a great extent. Actually it"s very much humiliating for me to file the petition and fight for that. It"s not explainable to anyone, but one who is in similar condition, can very well understand this. Broken marriage is not a crime and by the recommended amendment, divorce law can address that break with far less complexity. As we all know, nobody or nothing can compel a couple or any two people to live together. Present Divorce Law can delay (and make more bitter) the process of divorce, but can"t really change the direction in this scenario.
Can the Judiciary ask me to point out very private part of my life like marriage? Is not this hampering my basic fundamental right as a citizen? When there is no such law for a "father & son" or "mother & son" relation to be in that tie for ever (although maintenance clause is there), why would be such gross disparity in case of marriage? Are later the more "NOBLE" or "MUST ON" relations than the earlier? Is institution of marriage a serious "offense", which if I have
done once, can"t be freed till my death? Is wedlock means deadlock?
Now as an effect I have two options ""
EITHER to stay in my marriage forgetting about my own negative feelings compromising with my health and peace of mind
OR
To badmouth my son"s mother in the court to prove her fault to get rid of her.
In both cases either my wife or I would be sufferer, not the Honurable Judiciary or the legislative body! Won"t the chances of any healthy relation would decrease or diminish just because of amount of tension created between us during the process, as more dates means more blames or more defense (which is also a part of
attack mechanism)? Even the child would be indirectly sufferer for the bitterness between the parents as helpless witness of the whole event. Breaking up is a hard decision for anyone, but while doing, why we (in the process itself for its duration & nature) need to be nasty instead of peaceful? If a marriage can be done in a one- month notice period, why the divorce would be delayed for YEARS?
I am referring to some very pertinent cases where Honourable Supreme Court of India understood the gravity of the circumstances and granted the decree of divorce by dissolving the marriage, sometimes even after the lower court"s verdict in an opposite direction. In most of the cases, petition filed against wife"s cruelty. Judiciary understood that delaying the process would only increase bitterness between the couple. Whenever we delay something, it affects. In this scenario its affecting unfortunate people like me.
(1) N. G . Dastane Vs S. N. Dastane
DATE OF JUDGMENT : 19/03/1975
BENCH: CHANDRACHUD, Y.V. GOSWAMI, P.K. UNTWALIA, N.L.
CITATION: 1975 AIR 1534 1975 SCR (3) 967, 1975
SCC(2) 326CITATOR INFO : RF 1988 SC 121 (7,10)
(2) SIRAJMOHMEDKHAN JANMOHAMADKHAN HAFIZUNNISA YASINKHAN & ANR
DATE OF JUDGMENT14/09/1981
BENCH:FAZALALI, SYED MURTAZA BENCH:FAZALALI, SYED MURTAZA SEN, A.P. (J)
CITATION:
1981 AIR 1972 1982 SCR (1) 695
1981 SCC (4) 250 1981 SCALE (3)1400
(3) Shobha Rani Vs Madhukar Reddi
DATE OF JUDGMENT12/11/1987
BENCH:SHETTY, K.J. (J), RAY, B.C. (J) CITATION: 1988 AIR 121 1988 SCR (1)1010
1988 SCC (1) 105 JT 1987 (4) 433
1987 SCALE (2)1008
(4) V. Bhagat Vs D. Bhagat
DATE OF JUDGMENT 19/11/1993
BENCH: JEEVAN REDDY, B.P. (J), KULDIP SINGH (J) CITATION: 1994 AIR 710, 1994 SCC (1) 337
JT 1993 (6) 428 1993 SCALE (4)488
(5) Romesh Chander Vs Savitri "" DATE OF JUDGMENT 13/01/1995
BENCH: SAHAI, R.M. (J), MAJMUDAR S.B. (J) CITATION: 1995 AIR 851 1995 SCC (2) 7
JT 1995 (1) 362 1995 SCALE (1)177
(6) SMT. KANCHAN DEVI Vs. PROMOD KUMAR MITTAL & ANR.
DATE OF JUDGMENT:03/04/1996
BENCH:ANAND, A.S. (J)
BENCH:ANAND, A.S. (J)FAIZAN UDDIN (J) CITATION:JT 1996 (5) 655 1996 SCALE (3)293
(7) Ashok Hurra Vs Rupa Bipin Zaveri
DATE OF JUDGMENT: 10/03/1997
CIVIL APPEAL NO 1835 OF 1997
(8) G.V.N. KAMESWAR RAO Vs G. JABILLI DATE OF JUDGMENT:10/01/2002
CASE NO.:Appeal (civil) 140 of 2002
BENCH: D.P. Mohapatra & K.G. Balakrishnan
(9) Praveen Mehta Vs Inderjit Mehta
DATE OF JUDGMENT 11/07/2002
CASE NO.: Appeal (civil) 3930 of 2002 (10) A. Jayachandra Vs Aneel Kaur
CASE NO.:Appeal (civil) 7763-7764 of 2004
BENCH: RUMA PAL, ARIJIT PASAYAT & C.K.THAKKER
(11) Durga Prasanna Tripathy Vs Arundhati Tripathy
DATE OF JUDGMENT : 23/08/2005
CASE NO.: Appeal (civil) 5184 of 2005
(12) Vineeta Saxena Vs Pankaj Pandit
DATE OF JUDGMENT: 21/03/2006
CASE NO.: Appeal (civil) 1687 of 2006
BENCH: Ruma Pal & Dr. AR. Lakshmanan
(13) K R MAHESH Vs MANJULA DATE OF JUDGMENT: 11/07/2006
CASE NO.:Transfer Petition (civil) 947 of 2005
BENCH:ARIJIT PASAYAT & S.H. KAPADIA
(14) Kajol Ghosh Vs Sanghamitra Ghosh
DATE OF JUDGMENT: 20/11/2006
CASE NO.: Transfer Petition (civil) 228 of 2004
BENCH: G.P. MATHUR & DALVEER BHANDARI
(15) Rishikesh Sharma Vs Saroj Sharma
DATE OF JUDGMENT 21/11/2006
CASE NO.:Appeal (civil) 5129 of 2006
(16) Sujata Uday Patil Vs Uday Madhukar Patil
DATE OF JUDGMENT: 13/12/2006
CASE NO.: Appeal (civil) 5779 of 2006
BENCH: G.P. Mathur & A.K. Mathur
(17) Mayadevi Vs Jagdhish Prasad
CASE NO.:Appeal (civil) 877 of 2007
DATE OF JUDGMENT: 21/02/2007
BENCH: Dr. ARIJIT PASAYAT & DALVEER BHANDARI
(18) Samar Ghosh Vs Jaya Ghosh
CASE NO.: Appeal (civil) 151 of 2004BENCH: B.N. Agrawal, P.P. Naolekar & Dalveer Bhandari
(19) Satish Sitole Vs Smt Ganga
DATE OF JUDGMENT : 10/07/2008
CIVIL APPEAL No. 7567 of 2004
(20) Suman Kapur Vs Sudhir Kapur
DATE OF JUDGMENT 07/11/2008
CIVIL APPEAL NO.6582 OF 2008
And Last but not the least, THE LANDMARK JUDGEMENT
(21) Naveen Kohli Vs Neelu Kohli
Dt DATE OF JUDGMENT 21/03/2006
CASE NO.:Appeal (civil) 812 of 2004
Some Newspaper articles about our present
Divorce Law: -
"Examining the irretrievable breakdown of marriage as a ground for divorce
Ankit Kejriwal, Prayank Nayak
Irretrievable breakdown of marriage can be defined as such failure in the matrimonial relationship or such circumstances adverse to that relationship that no reasonable probability remains of the spouses remaining together as husband and wife for mutual comfort and support. It is the situation that occurs in a marriage when one spouse refuses to live with the other and will not work towards reconciliation. When there is not an iota of hope that parties can be reconciled to continue their matrimonial life, the marriage can be considered as Irretrievable Breakdown of marriage.
This concept was first introduced in New Zealand. The
Divorce and Matrimonial Causes Amendment Act, 1920
included for the first time the provision for separation agreement for three or more years was a ground for making petition to the court for divorce and the court was discretion whether to grant divorce or not. In England, the gate for this theory was opened up in the case of Masarati v. Masarati, where both the parties to the marriage had committed adultery. The court of appeal, on wife"s petition for divorce, observed breakdown of marriage. The law commission of England in its report said, The objectives of good divorce law are two: one to buttress rather than to undermine the stability of marriage and two, when regrettably a marriage has
broken down, to enable the empty shell to be destroyed with maximum fairness, and minimum bitterness, humiliation and distress. On the recommendation of the Law commission, Irretrievable Breakdown of Marriage was made the sole ground for divorce under section 1 of the Divorce Law reforms Act, 1973. The Matrimonial Causes Act, 1959 of the Commonwealth of Australia provided for divorce on the grounds of breakdown of marriage. In India, breakdown of marriage is still not ground divorce in spite of the recommendation of the Law Commission and various Supreme Court judgments to include breakdown of marriage as a ground for divorce. This paper examines the need to introduce irretrievable breakdown of marriage as a ground of divorce.
Theories of divorce
The provisions relating to divorce are contained in Sec 13 of Hindu Marriage Act, 1955. The Act recognizes two theories of Divorce: the fault theory and divorce by mutual consent. Under the fault theory, marriage can be dissolved only when either party to the marriage had committed a matrimonial offence. Under this theory it is necessary to have a guilty
and an innocent party and only innocent party can seek the
remedy of divorce. However the most striking feature and drawback is that if both parties have been at fault, there is no remedy available.
Another theory of divorce is that of mutual consent. The underlying rationale is that since two persons can marry by their free will, they should also be allowed to move out of their relationship of their own free will. However critics of this theory say that this approach will promote immorality as it
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