By Kamayani Bali Mahabal, Womens Feature Service
Irretrievable Breakdown of Marriage if introduced now would be detrimental for women’s rights. We need to give importance to the economic security of the divorced women.
Proposed amendments to the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, will say “irretrievable breakdown of marriage” is ground enough for divorce. The six-month reconciliatory period has been waived.
Many western countries introduced this remedy in their matrimonial statutes during the Seventies. But they woke up to the reality that the remedy causes immense hardships to women particularly housewives.
In India, the issue of introducing this remedy in the early Eighties failed precisely for the reason that it will cause great hardship to women. Many women’s organizations opposed this move.
More recently, in some instances, even the Supreme Court has declined to grant this remedy. When the trial court did grant a divorce to an errant husband who was not able to prove any matrimonial fault against his wife, and where he himself was guilty of desertion, bigamy or cruelty, the High Courts set aside the decree of divorce on the grounds that the husband cannot be allowed to take advantage of one’s own wrong [Section 23 (1)(a) of HMA].
The consultation with about 100 participants from across the country included lawyers who have negotiated economic rights for women and academicians and activists, who have worked on division of matrimonial property rights.
Noted lawyer Flavia Agnes said, “The main reason we oppose IBM is that women contribute to the marriage and that helps the husband to accumulate property. In other countries, such property is termed matrimonial property.”
If a husband can opt out of marriage at his whim and fancy, a woman who has spent her entire life hoping the marriage would provide her with financial stability in old age, would be left in the lurch.
Kirti Singh, former Law Commission member described the amendment as “disastrous” if it came without adequate safeguards. Most women get a pittance from the courts and most do not want to get out of a marriage only because there is nothing to sustain them outside it.
The Court has also stated that Parliament should make amendments to matrimonial laws to give effect to the mandate of Article 15(1) in the Constitution. Unless women are treated as equals in a marriage and given the same financial and other security that men have on its breakdown, it would be discriminatory to further liberalize the grounds of divorce.
The law of maintenance also places the unjustifiable burden of proving the husband’s income upon the woman seeking maintenance. This is often impossible as the woman does not have the necessary documents wich are usually in the exclusive possession of the husband.
Some of the key points that were raised during the consultations were: Unless safeguards are in place IBM would be unfavorable for women. With IBM women would lose their power to negotiate their right to property. On divorce women suffered various losses – her social status, her sense of identity, her economic security, her home, and so on. Additionally, they have to complete responsibility of raising the children.
The ground of IBM cannot be made a blanket rule otherwise this will deprive women of their crucial economic rights was the general consensus came out from the National Consultation.