TOI - Amendments in Hindu Marriage Act 1955 and Special marriage act 1954

In a major step towards making marriage laws more women-friendly, Rajya Sabha on Monday passed the bill to amend theHindu Marriage Act (1955) and the Special Marriage Act (1954) that provides for "irretrievable breakdown on marriage" as a ground for divorce as well as grants women the right to a share in the property of their husbands. 

The Marriage Laws (Amendment) Bill, 2010, will of course also have to be passed by Lok Sabha before it can become law. Most Rajya Sabha MPs cut across party lines to welcome the "progressive" bill, though some held it should have been made more "gender-neutral", while a few others expressed reservations about its probable misuse against men. 

Replying to the debate, law minister Kapil Sibal said there was an urgent need to "protect women rights more" because the Indian society was still quite patriarchal. "So let's be clear. This historic piece of legislation is a message that MPs are on the side of women in our patriarchal society. Even across the world, women constitute 50% (of the population) but own only 2% of the assets," he said. 

The minister assured MPs that the "irretrievable breakdown on marriage" clause was "gender-neutral" since even men could move the court for it. Both parties have to live apart for at least three years before filing such a divorce petition. "Don't worry, we are taking care of both men and women," he said. 

Dwelling on the amendments, the minister said courts would decide the "extent" of the wife's share in her husband's self-acquired property, both moveable and immoveable, in case of a divorce. While the wife will have no share in inherited property, its value will be taken into account by court while fixing the amount of compensation or alimony to her. "The judge will decide as per the facts and circumstances of each case," he said. 

Earlier, participating in the debate, Najma Heptulla of BJP criticised the UPA government for not bringing in "one law for all women". Holding that the country's "100 million Muslim women" were being ignored by the government, she said, "Have they thought of any reforms for Muslim women?"


FROM IE
Marriage bill treads a tricky path between a liberal approach to divorce and protecting women's rights

A fair balance between individual freedom and responsibility is the crux of any just law on marriage and divorce. The Marriage Laws (Amendment) Bill just passed by the Rajya Sabha updates the marital contract, giving greater agency to both spouses while protecting women, for whom divorce is a more punishing event, and who have so far had little legal recourse.

Under the new bill, either partner can petition for a divorce citing irretrievable breakdown, without having to supply proof of adultery, leprosy, conversion, unsoundness of mind, desertion or other dire circumstances. This change puts Indian law on par with other jurisdictions, starting with New Zealand in 1920, allowing unhappy partners to be released from their bonds and respecting their reasons. After the specified waiting period, a judge can use her discretion to grant divorce even if one of the partners does not move a second application within three years. While a woman can oppose a divorce plea on the grounds of financial hardship, a man cannot. The more substantive change in the bill is the recognition that women are entitled to a share in marital property — a principle acknowledged around the world. Women often invest disproportionately in the household, compared to remunerated work. They stand to lose more, emotionally and financially, when the marriage breaks down, and assets are usually registered in the man's name. India did not have a law on marital property division, leaving the woman financially disadvantaged and burdened with child support. She had even less leverage if she had initiated the divorce. Now, the judge can again use her discretion to ensure a fair share of property or guarantee spousal support. This part of the bill has been seen to be contentious, with many questioning why a woman is entitled to her husband's inherited or inheritable property. Given that its implementation leaves so much to the subjective assessment of a judge, it is crucial that such decisions are just on both men and women.

During the parliamentary discussion of the bill, many MPs questioned the seeming asymmetry of the bill, and asked why the principle of compensation was not gender-neutral. The reason is that social institutions are usually tilted against women, and it is rare for men to have sacrificed their earnings for the sake of the marriage. And so, a gender neutral law in a context of inequality could create situations where a woman's plea is reflexively countered, leading to massive litigation rather than progress. When Lok Sabha takes up the bill, this logic must be more thoroughly articulated, and all views considered.