Loopholes in the marriage law

AMENDMENT & AFTER

Will the recent amendment to the Hindu Marriage Act and the Special Marriage Act protect women’s rights, wonders Lavanya Regunathan Fischer & Devadatt Kamat

Will the recent amendment to the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, protect women’s rights? Or will an easy divorce without adequate rights in matrimonial property and clear financial safeguards, leave an increasing number of women facing lengthy judicial processes for tangible maintenance rights? 

India is one of the few jurisdictions where the laws that govern marriage, divorce, maintenance, inheritance and adoption are based on religious affiliation. Separate laws have also meant that amendments to the laws of any one religious group affect only a section of the population and changes for the better also move at different speeds. Although parties can always opt for the secular Special Marriage Act, the religious law is often the one applied de facto. The amendments passed this year affect only those who are governed by the Hindu Act, including Jains, Buddhists and Sikhs, and those who marry under the secular Special Marriage Act. 

The amendments to the Acts mentioned above allow for a change in the procedure of obtaining a divorce when the marriage has irretrievably broken down. They also try to ensure that, at the very least, maintenance arrangements are more than a mere token. 

The Amendment Act recognises that the existing legal frameworks were inadequate. It also admits to a rather mind-boggling scale of delay in acknowledging that the legislative recognition of irretrievable breakdown as a clear ground for divorce was required to reconnect the law with existing social realities. After all, the 1978 Indian Law Commission Report had spoken in favour of these reforms almost 32 years ago. Likewise countless Supreme Court and High Court judgments had consistently echoed the demand for these reforms over the past three decades. Finally, the Law Commission on its own took up the issue again and submitted the suo moto report in 2009. This seems to have propelled the amendment through, giving the matter the necessary final push. 

The delay is partly the result of misconceived notions of the impropriety of divorce and the idea that it goes against traditional Hindu practice, both of which are wrong. The amendment can be seen in the light of recent progressive reform to the Hindu Succession Act and indicates that legislators today are more willing to take a fresh approach and less willing to make divorce the symbolic icon of Indian family values. 

Leaving the question of legislative delay aside, the question remains as to whether the amendment addresses the two main problem areas of divorce law: The balancing of rights of all the parties involved in a divorce and the welfare of the children after a divorce. In both these areas codified Hindu law has had mixed results till now. From a lawyer’s point of view this is because the courts, especially the lower courts, have not always dealt fairly with, or shown adequate sensitivity to, the financially or educationally weaker spouse, usually the woman. Also, the law has sometimes achieved in practise the opposite of what it had set out to do. 

Even if the court was sympathetic, as per law the application of the irretrievable breakdown of marriage as a ground for divorce was unnecessarily cumbersome. The method of obtaining a divorce, which was in reality based on the principle of irretrievable breakdown — was as divorce by mutual consent. For this type of divorce, the Act had required a six-month waiting period between the making of the application and the courts granting the divorce, and had required both parties to be present when such divorce was granted. The amendments now allow for a party wishing to obtain a divorce on the basis of the irretrievable breakdown of marriage to apply separately and obtain such a divorce upon the court being convinced that the marriage had permanently broken down. 

The prior requirements of both parties being present and the six-month waiting period have been removed. In the past, if one of the parties decided not to present themselves at court, it has meant lengthy, inhumane delays.  It is hoped that the removal of this requirement will speed up the process of obtaining a divorce by the party wishing to do so, and when read with the other amendment to maintenance, might secure for women a right to some financial security. As a safeguard against misuse of this provision, the wife has been allowed to contest a divorce on this ground if it would cause her grave financial hardship. The Court would then have the right to dismiss the petition or ensure that such hardship is eliminated. The husband has not been given such a corresponding right.

Overall, there can be no doubt that the amendment has thus rectified huge problems and is a major step forward. Both applicants as well as the courts no longer have to struggle with procedural unfairness or illegitimate non-cooperation by one spouse. Similarly, the law is no longer in denial about the everyday reality of irretrievable breakdown — mutual consent was an inappropriate proxy, distorting the actual reasons for divorce. Above all, is the gender sensitive framing of the new provision, the scope for the husband to play power games at the cost of the woman, has been reduced.  

 The amendment also makes it the duty of the judge to ensure the adequate maintenance of the children in the marriage and makes explicit mention of those with special needs — again a long overdue clarification and confirmation. The statutory articulation of maintenance for the family is a step in the direction of ensuring that children’s rights are made enforceable and the financial responsibility is to be borne by all able parties. However, although the maintenance for the children has been made ‘consistent’ with the ‘financial capacity’ of the parties to the marriage, the level of maintenance to be secured for the wife has been left to the discretion of the courts. This indeed gives ground for the fear, often raised by women’s groups, that the courts are not always sympathetic to the plight of women, or their desire for a certain degree of financial independence. 

Corruption within the judicial system, male biases, gender insensitivity, should make us doubt whether we can afford to trust these institutions blindly. In addition, as with all reform, legal empowerment on paper often does not translate into actual empowerment. Illiterate women or women ignorant of their rights would face much the same situation before an unsympathetic judge as they faced prior to the passage of the amendment, since knowledge of the law remains low. 

Even if there is an excellent litigation setting, equally strong parties, good lawyers and a responsive judge, good maintenance arrangements will still be difficult to arrive at, given the complexity of Indian property rights. There is no real, well-formulated concept of marital property. The owner of the property, even during the subsistence of the marriage, is the person who paid and bought the property and not the spousal unit. Secondly, many families still live in joint family arrangements, with the various inhabitants of the property not enjoying clearly demarcated rights. There is a whole jurisprudence that has evolved around the Hindu Undivided Family and maintenance will have to work hard to find its way in.

So while the amendments are a step in the right direction, the loopholes that remain perhaps call for a more coherent reading of what rights need to be secured for all the parties involved in case a family unit breaks down. There is still a gap between the law as it exists in the statute books and everyday realities.

(The writers are both practising lawyers based in London and New Delhi, respectively.)