Recommendations for reforming the Marriage Law amendment bill 2010

Failure of Marital property distribution laws (Learning from China ?)

The Chinese Supreme Court very recently ruled that from now on, the person who buys the family home, or the parents who advance them the money, will get to keep it after divorce. In particular, more than a third of all marriages in Beijing, Shanghai and Guangzhou now end in divorce, and the fastest-growing segment of society is those aged 25 to 34. Almost half of all divorces see a court squabble over the family assets. "I would choose a luxury house over a boyfriend that always makes me happy without hesitation," said one 24-year-old contestant on If You Are the One, one of China's most popular television dating shows. "And my boyfriend has to have a monthly salary of 200,000 yuan (£18,900)," she demanded. China and Indian have the same sort of demographics and people of both China and India suffer from the same level of hyper materialism. In such circumstances the introduction of property distribution laws  based on senseless feminist pressure leads to a severe disruption in the society. Why are we making the same mistake that China made on property division on the unsubstantiated assumptions and presumptions of a few women's organizations?

Property laws will fail in a hypergamic Indian marriage market

Indian marriages are essentially hypergamic in nature, meaning the brides have an inherent and very strong desire to move up in the socioeconomic ladder through marriage. The Indian society like other societies is like a pyramid with increasing level of higher socioeconomic status as we move up the pyramid. This also means that as we move up pyramid the supply of boys with higher socioeconomic status declines sharply. This leads to higher number women from a lower level in the pyramid competing for a relatively smaller number of men higher in the pyramid. This inherent desire of families to place their daughters in a better socioeconomic position after marriage (higher in the pyramid) leads to a supply demand problem and leads to dowry. Dowry is a prize which the bride’s family pays to elevate place their daughter in a better socioeconomic position in the pyramid. Also men prefer to choose brides from a lower socioeconomic background with the belief that they will be more happier after marriage and will form  better caregivers.If property laws are introduced it will lead utter chaos in the society. 

1.  Women from lower level will compete and choose only those men who own property. As a consequence poorer men who do not own any property will find it extremely hard to find a match at their own strata.

2. Like China, property will become the determining factors for women in choosing a husband. Women will find a man owing property an extremely attractive match while rejecting the ones who do not,

3.  Marriage will look like an increasingly riskier proposition for men

Copy pasting American laws in an Indian context is a sure shot recipe for disaster

If we define household work as the "effort" that will entitle the wife to 50% of the assets then in joint families the husband’s mother, sister , and father also work for the welfare of the household the same time period as the wife does and on this premise they too will be entitled to equal shares of the property when it is being distributed. So in a marriage of 2 years in a joint family household the assets acquired by the spouses will be essentially divided into 5 equitable shares(husband, wife , mother-in-law, father-in-law and sister-in-law) and wife will be entitled to only one share. The above example shows the dangerous problems and issues that will occur when American laws are blindly copied in India without any thought. It is also prudent to note that marriage and family as an institution has completely failed in west on account of these laws. The failure has been so total and complete that surveys in the US have concluded that marriage is a terminal decline in west and single parent families will be new norm. Why are we trying to blindly import such laws at the insistence of a few radical women’s organizations? Do we want to destroy the Indian family system that has served us so well for 10,000 years?

Nobody except some feminist organizations feel that the law justified

Barring a handful of feminists groups speaking in favour of the law, we would want to quote from media reports some of comments from a wide cross section of the society. The comments reflect the shock expressed by the nation on this proposed amendment to award 50% of only the husbands property the wife. 

a. “The wealthy or high net worth individuals can be a target. We all know women are not the only victims in marriages these days. I have handled gold-diggers myself”…This is absurd!” - Mrinalini Deshmukh ( Eminent Lawyer)

b. “A law cannot be lopsided, favouring one side over the other — the legislation has to be fair and square to all sides. Otherwise it would be ultra vires of the Constitution!”- Mrinalini Deshmukh ( Eminent Lawyer)

c. "The proposed law is already instilling a fear pyschosis in men,”  Siddharth Shah, a divorce lawyer in Mumbai.

d. “This is a bad legislation,” Atindra Kumar Mukherjee, a senior divorce lawyer in Calcutta, stressing that there’s ample scope for abuse it were to come into force.

e.”Hindu Marriage Law Amendment Bill is anti-men, will destroy Indian families” – ehitavada paper Nagpur

f. “Every year, over 62,000 married men commit suicide due to verbal, emotional, economic, and physical abuse and legal harassment. The suicide rate of married men is double that of married women. One married man is committing suicide in every nine minutes.” – Indian Express Bangalore

The question of 50% property – Western law coupled with Indian Feminist Fanaticism?

What is perceived more attractive for a young hypermaterialistic female youth of modern India, a 2 crore house, coupled with a car, Half of the bank deposits, Gold and savings, all totalling over 3 crore house or her marriage?  If husbands and their families are perceived by the government to be greedy for dowry (wealth), why is it perceived the young women and their families would be any different?  The west does not have over 6 Maintenance laws like India does and neither does the west witness severe misuse of laws like 498a in India which has been called as “Legal Terrorism” by the honourable supreme court of India. However it is surprising to note that instead of curbing the misuse in the other matrimonial laws the government has for reasons knows nest to it has approved the formation of a new one, this one more draconian than the other. Indian Gender laws in particular are so badly drafted that they out rightly excludes even the possibility of a woman being the cause of any sort of marital discord. Irrespective of the fact on who is petitioning for the divorce, it the husband who is assumed to be one guilty of breaking the marriage.Just like a wife a husband also has every right to break out of an abusive relationship. With no legal recourse for domestic violence(DV) or marital harassment(498a) like available for wives the only tool available for Indian husbands to stay separate from abusive wives and to petition for a divorce to end the domestic harassment. However divorce is made painfully expensive for Indian husbands trying to break free from abusive wives and this law is another step in that direction.

Section 13(D) of MARRIAGE LAWS (AMENDMENT) BILL, 2010  is also  grossly  unconstitutional

Some sections of the bill are in clear violation of article 15 of the Constitution of India which prohibits discrimination against any citizen on grounds of religion and sex. Article 15(3) of the Constitution, (which is a subsection and BELOW Article 15), does allow the Government to make special provision for women and children, but now at the expense of discriminating against men or husbands.

a) Article 15(3) of the constitution merely provides for special provisions for women and children, it does not permit the framing of special laws which will violate the essence of the Main Article 15. Had that been the case, the constitution of India will become self contradictory.  Section 13D of the bill openly discriminates against husband by awarding the choice of opposing a divorce on financial hardship solely to the wife and totally denying the same to the husband even though it is amply clear that both genders can be in equal need of financial assistance.There are many families in India today where husbands have assumed responsibilities of the household and wives are the primary bread earners. This bill will discriminate against these husbands should their wives petition for divorce. Also in many households should husbands become unemployed, ill, handicapped or infirm and should if an earning wife chooses to abandon and divorce this husband under these circumstances, the husband would have no legal recourse to seek adequate compensation from the wife on the grounds of financial hardship.The current concept of gender neutrality like that of Section 24 of the Hindu Marriage Act which takes into consideration that both, the husband and the wife can face financial hardship has been totally ignored in this Bill, specially in this section.

b) Article 15(3) of the constitution although does allow the government to make special provisions for women, but the same article cannot be used to overlook the fact that in modern India women in many cases earn a lot more than the husband and just like the husband they too have a solemn responsibility to satisfy the condition of financial hardship of her husband before getting a divorce.  

Section 13D will be used as  the 5^th duplicate maintenance law

The duplication of laws, total ignorance of Universal declaration of human rights and principles of natural justice,  non constitutional language of offering protection solely to one gender coupled with very poor implementation of Perjury laws has created a dirty labyrinth in the Indian Gender laws where mostly female litigants and their families collude and then lie to any extent without the fear of ever getting punished just to harass the husband’s family and forcefully extort money. On the other hand the government which complains regularly of the backbreaking load on the judiciary does not care when it allows the duplication of gender laws. Some sections where gender laws are duplicated are,

• Indian Maintenance laws :- Maintenance can be demanded by a wife using an 4 separate laws namely HMA 24 , HMA 25 , CrPC 125 , DV Act Maintenance provision. Most female litigants use at least 3 at any time to maximize their gains from misusing maintenance laws and causing additional harassment and causing extra judicial burden.
•  Section 498A , DV :- Section 498a and DV Act 2005 was clearly not necessary when sections IPC Section 322 – Hurt  & IPC Section 322 Grievous Hurt were much better laws which served the same purpose and were less prone to misuse like 498a and DV which is misused in 98% of cases according to Govt statistics. Most female litigants use  both of them together just to harass their spouses.

Not having learnt its lesson from such outrageous misuse the Indian government continues to promote new gender laws which are again not “evidence” based but “assumption based” and out rightly exclude the woman from committing the same offence that it tries the man to prosecute for. Newer laws are “monetary settlement” driven and do not emphasize on “punishment” but on “settlement”! These dubious premises have given rise to an extortion and blackmail industry and have led to phenomenal distrust amongst the people of India on the Indian Gender laws.  Section 13D of the Irretrievable of Marriage Bill on the same lines as explained is but essentially will be used as a tool to block a divorce until unreasonable financial demands of a wife are met and will just and will be a 5^th maintenance law apart from the 4 already existing as has been elaborated earlier.

Section 13 D will lead to the husband having to “Buy” a divorce

The current version of Section 13D is drafted as below .

13 D . Wife’s right to oppose petition on grounds of “Financial Hardship”.

13D. (1) Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 13C, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage.

There is no doubt that this amendment safeguards the concerns of women’s groups that have vocally expressed their fear of financial destitution if they are abandoned by their husbands on the irretrievable breakdown ground.  However there also will be widespread misuse of this legislation since now the Husband will forced to ‘buy’ a divorce while wife can choose to walk out whenever she feels , also a husband who is unwilling or incapable to ‘buy’ his way out of a divorce from the wife will be dragged into a lifelong battle of judicial and spousal  abuse for divorce since the wife may drag the case on this premise for years together.

Section 13D of the act hence reduces the husband to a mere witness to the proceedings and grants the absolute control of circumstances and the decision making in the case in the hands of the wife. Husbands will be forced to buy their way out of abusive wife’s and this will lead to wide spread extortion.

Also in a scenario where the wife is the petitioner for divorce and is guilty of adultery, crime against the husband and his family including but not limited to Domestic Violence, Financial violence , Emotional violence or misuses the other unconstitutional gender legislations like 498a  etc , the wife can choose to just walk away with the divorce without having to satisfy any conditions whatsoever . In other words the husband will have absolutely no defence and will be stuck with court cases running for years on end while the wife can happily get the divorce and remarry as she likes.

Discrimination against Indians Fathers in Child Custody cases will increase

Clearly, the motivation to stay within a marriage changes dramatically reduces under a no-fault divorce framework and same will affect child cutody. To mitigate the worst effects of these distortions on children, 35 US states have found it necessary to introduce a strong presumption of gender-neutral shared custody and parenting laws, as well as gender-neutral alimony and child-support laws. There is a now a large body of Case Law on Joint Custody. In a Landmark judgement from United States , KENTUCKY: Chalupa v. Chalupa, Kentucky Court of Appeals, No. 90-CA-001145-MR; (May 1, 1992)., Judge Schroder, wrote for the majority:

“A divorce from a spouse is not a divorce from their children, nor should custody decisions be used as a punishment. Joint custody can benefit the children, the divorced parents, and society in general by having both parents involved in the children's upbringing.... The difficult and delicate nature of deciding what is in the best interest of the child leads this Court to interpret the child's best interest as requiring a trial court to consider joint custody first, before the more traumatic sole custody. In finding a preference for joint custody is in the best interest of the child, even in a bitter divorce, the court is encouraging the parents to cooperate with each other and to stay on their best behavior. Joint custody can be modified if a party is acting in bad faith or is uncooperative. The trial court at any time can review joint custody and if a party is being unreasonable, modify the custody to sole custody in favor of the reasonable parent. Surely, with the stakes so high, there would be more cooperation which leads to the child's best interest, the parents' best interest, fewer court appearances and judicial economy. Starting out with sole custody would deprive one parent of the vital input.”

A similar landmark judgment was passed in GEORGIA: Court of Appeals of Georgia, Case No. A93A0698, 7/2/93 IN the INTEREST of A.R.B., a child:

In a unanimous opinion, presiding Judge Dorothy T. Beasley stated: “Although the dispute is symbolized by a 'versus' which signifies two adverse parties at opposite poles of a line, there is in fact a third party whose interests and rights make of the line a triangle. That person, the child who is not an official party to the lawsuit but whose wellbeing is in the eye of the controversy, has a right to shared parenting when both are equally suited to provide it. Inherent in the express public policy is a recognition of the child's right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents' wisdom, judgment and experience. The child does not forfeit these rights when the parents divorce.”

These liberal democracies even go so far as to ensure that Grandparents have visitation rights to ensure that a custodial parent cannot erase them out of their grandchildren’s lives. They are also signatories to the Hague Convention that ensures that a divorcing spouse cannot go “forum shopping” to a favourable jurisdiction like India in particular to take shelter under the glacially slow judiciary and severely anti husband laws.

None of these checks and balances exists in the canon of Indian Family Law. Notably, Indian Family Law does not even pretend to operate under gender-neutral presumptions. The child-support responsibility falls disproportionately on the father, as does alimony on the husband. Similarly, child custody of a minor is rarely granted to the father. Finally, the father is almost always the primary legal guardian of the Child. Even the terminology in the Hindu Marriage Act is not gender-neutral: it refers to the rights and obligations of the “the husband” and “the wife”, rather than “the spouse”.

If one spouse can orchestrate a breakdown and unilaterally terminate a marriage this ground, it necessarily follows that the Family Laws governing shared parenting, child-support, alimony, and grandparent’s visitation rights must also be simultaneously overhauled. These laws must ensure that a divorcing wife cannot take advantage of a “no-fault” law to financially and emotionally exploit other equally-legitimate stakeholders in a child’s life. They must also ensure that one spouse cannot walk away the tangible and intangible assets acquired during the marriage in a winner-take-all contest. The glacial, idiosyncratic, wheels of the Indian Judiciary all but guarantee that fathers are severely discriminated against once this laws turns into existence. As regards the executive branch’s ability to enforce visitation and child-support, the less said about it, the better.

False 498a and DV cases will continue to run even after divorce  

•  This bill will reward the wife with the divorce while condemning lakhs of innocent mothers and sisters the torture of a criminal trail in Indian courts in 498a and DV cases since it does not mandate the closure of these matrimonial cases at the time of divorce? The Bill essentially grants freedom and happiness to wives through a divorce but is totally silent on how the false and frivolous cases that are filed by wives be dealt with, even when the wife gets the divorce and happily remarries?   Right now during a mutual divorce all the 498a and DV cases are normally quashed so that the families on both sides can part peacefully. The present draft of the bill aims to take away this resort too as the wife would now simply go away with a unilateral divorce, with the pending 498a and DV case running for years, which the wives normally do not even care to attend. We would like to reiterate the government facts that over 90% of all 498a are false and over 80% of all DV cases are filed with malicious intentions although the government continues to downplay the same.

•  The Law Commission’s 71st Report from where this recommendation was copied was drafted way back in 1978, when biased laws like 498a and DV Act were not in existence which were enforced only in 1983 and 2006. Hence Law Commission had not considered quashing of such cases against husband and his families as a precondition at that time, while granting divorce under Irretrievable Breakdown of Marriage.

•  Quashing all cases between the husband and wife while granting divorces under Irretrievable Breakdown Marriage, would immediately reduce the crores of pending cases in courts and will provide relief to crores of aged mothers and sisters condemned to a lifetime of judicial apathy in Indian courts due the Indian gender laws.

• Moreover there would be cases where the husband is all in will to save his marriage, so that his child can have both parents, but under the present format of the Bill, the husband will not have any legal remedy to save his own marriage, even for the sake of his own child.

Demands and Recommendations 

We recommend that the following sections be inserted into the MARRIAGE LAWS (AMENDMENT) BILL, 2010 to ensure fairness to both genders and to reduce the overall load on the Indian judiciary.

 Recommendation 1 . Amend 13D to make the law gender neutral(both husband and wife will have right to oppose divorce on financial hardship clause)

13D to amended to ensure that both spouses may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to them and that it would in all the circumstances be wrong to dissolve the marriage. The decision of satisfying the financial responsibilities will then depend on the court and this would be decided based on the merits of the case.

13 D needs to  be amended to

• Change “wife” to “respondent” , change “her” to “them”

“13D. (1) The respondent to a petition for the dissolution of marriage by a decree of divorce under section 13C,  may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to them and that it would in all the circumstances be wrong to dissolve the marriage.”

Recommendation 2 . Equal share in Debt also  

With credit comes debt and the wife cannot be entitled to only credit whereas the husband will be left with the burden of debt. There has been a defined mechanism to ensure that he debt incurred during the matrimonial time-frame is also shared equally between the husband and wife.

            Recommendation 3. Objective definition of “Financial Hardship”

The word “financial hardship” must not be allowed to be interpreted in a subjective manner since subjective interpretation of this term and will ultimately turn into a tool for extortion and will be used to block a divorce till the unreasonable financial demands of the respondent are fulfilled. One respondent person may claim Rs 10,000 /- to satisfy their face financial hardship condition while another respondent with a mentality for extortion may demand Rs 1 Crore to fullfill the condition of financial hardship. Unless an objective definition of “Financial Hardship” is provided the divorce process will again be reduced to but a dirty fish market like it has become now where the respondents will again essentially bargain the “price” of the divorce citing the condition of financial hardship and block the divorce till this condition is satisfied.  The tenure of the marriage and the relative capability of the respondent must also be clearly spelled out while determining “Financial hardship”.  Also there must be a predefined upper limit on the time and amount that can be paid to satisfy this condition.  Financial hardship terms must be defined based on the living standard of the nation and not on the unreasonable demands of the respondent. The ministry can learn the objective and mathematical implementation of divorce from the Laws from the United States where in the state the Texas for example alimony cannot be sought if the marriage is not more than 10 years old. Even when is granted, the alimony amount cannot exceed one 1/3 the income of the payer or at the most $2500, whichever is lesser. Further alimony is tax deductible on the payer and taxable on the receiver.

Recommendation 4.Condition of finishing all litigation before divorce is granted

Unlike the west in India a divorce case is normally accompanied by many cases namely, maintenance child custody, 498a, adultery, domestic violence, IPC Sec 506 and many more. Most of the tomes multiple maintenance cases and 498a and DV are filed together to harass the husbands and his family members and to extort money through nefarious means.

In the case of Swati Verma vs. Rajan Verma reported in (2004) 1 SCC 123 the honourable Supreme Court of India was cognizant of the same concern when it averred. “ Having perused the records placed before us we are satisfied that the marriage between the parties has broken down irretrievably and with a view to restore good relationship and to put a quietus to all litigations between the parties and not to leave any room for future litigation, so that they may live peacefully hereafter…”

In the case of Naveen Kohli vs. Neelu Kohli (AIR 2006 SC 1675), the Hon'ble Supreme Court recommended to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for divorce. The essence of the above case was large number of criminal cases were pending against each other. So in essence if either party initiates criminal cases against each other then it should be considered an ground for divorce.

If the current law comes into being in the present format, this will lead to the wife walking out with the divorce while the husband will still be stuck in a legal tangle of cases for many decades. I demand that an amendment will be inserted that decree of divorce be granted only when all litigation including but not limited to child custody between the husband and the wife has been resolved to the satisfaction of either of the parties, with the post condition that no party will initiate any other litigation against each other once the divorce decree has been granted.