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Knot for long
When Bollywood, unabashed drumbeater of the big fat Indian wedding, rewrites its script to include a divorce party, you know there's a new wind blowing. The film Jodi Breakers may have been a dud at the box-office but it did put its finger on the pulse of a new way of thinking, where divorce is as desi as chicken tikka masala. Having sniffed the wind and seen the rising divorce statistics, Indian lawmakers are getting up to speed too. The new Cabinet-approved marriage amendment bill is quite a game-changer, and if it does indeed become law, it has the power to radically transform the way divorce battles are fought. No longer will estranged couples be forced to prove that one spouse had committed one of several serious transgressions - from adultery to cruelty to desertion - in order to get a divorce. They can now cite "irretrievable breakdown of marriage" and not take recourse to false allegations. Not only will the break-up be less vicious and hurtful, it will, crucially for couples, be less prolonged as the bill allows courts to reduce or waive the cooling-off period of six months in case of divorce by mutual consent. After all, if a week is a long time in coalition politics, six months can be an aeon in an incompatible union. "In any case, " says Delhi-based activist Archana Kapoor, "The six months were used mostly to convince the girl to go back to the husband. But such tactics don't save marriages. "
Clearly, both courts and government are recognising that two people have the right not to get on - and the right to move on.
"The bill is positive and pragmatic, " says Mrinalini Deshmukh, a Mumbai-based lawyer who has fought many celebrity client cases including that of Aamir Khan and Mahesh Bhupathi. Divorce trends in India point to a rise in mutual-consent petitions filed by young couples. Given this, say reformist lawyers, the six-month waiver is an excellent step forward.
Statistics show that the number of people filing for divorce in family courts across big cities like Mumbai and Delhi, and even a small town like Madurai, has doubled in the last decade. Not only newlyweds, even retirees are rushing to family courts with divorce pleas. Wedlock, for better or worse, seems increasingly to be followed by deadlock. Lawyers admit that in the absence of irretrievable breakdown as ground for divorce in India, many petitions were heavily peppered with accusations of cruelty, even if the husband and wife had lived apart for years. "The other side will immediately defend the hurtful allegation, " says Mrinalini Deshmukh. Now, the new "less accusatory sounding ground" may make parties less adversarial though the court will have to decide if the marriage is indeed beyond repair. The other downside to not having an exit route that didn't involve beating or infidelity, was the abuse of "mutual consent", with one partner refusing to give his or her consent either out of spite or as a form of revenge. Witholding consent has become a nifty harassment tool. Union minister Sushil Kumar Shinde's daughter Smriti is one such example. The Supreme Court dismissed her ex-parte divorce decree granted by a Mumbai family court in a mutual consent petition as her husband did not consent again at the end of six months. Smriti is back to being legally married.
The proposed changes in the marriage law are based on the recommendations of the Law Commission, made first in 1978 and then in 2009, together with judgments of the Supreme Court. In fact, the apex court has led the way, recommending to the Central government in 2006 after a particularly acrimonious divorce case - of Naveen and Neelu Kohli - that it should include irretrievable breakdown as a criterion.
DIVORCE UP TO SPEED?
Those who oppose the legislation feel that it will only encourage a rash of frivolous divorce cases. "Couples are not willing to work at it. They are impatient, " says Dr Harish Shetty, Mumbai-based psychiatrist. Marriage counselors, once an unheard of job in India, now have lines outside their door. The complaints may appear trivial, but evidently, they are serious enough for couples to want out. "He is not ambitious enough and is just living off his father's wealth, " said a young wife who was working in a BPO. Another complained that her husband, "did not change the baby's nappy and I had to organise the kid's birthday party on my own".
They seek therapy for issues which, 20 years ago, would have been considered inconsequential. Adds Dr Shetty, "Everyone wants a sizzling relationship all the time. Living together requires understanding. You have to accept the Big 'O' with the BO. "
The Bill has attracted criticism from legal experts too. They want a more meaningful discussion before the "hastily pushed, half-baked bill" (as divorce lawyer Sunil Mittal calls it) is made into law. Veteran women's activist Flavia Agnes says the move to give a divorcing wife a share in the husband's property acquired after marriage is laudable but narrow and vague in scope. "The bill needs to clearly spell out what constitutes matrimonial property, what category of property is to be kept out of the common pool, and the rules of distribution. In India, a divorce still means destitution for most women, across cities and villages. They may have neither independent income nor separate residence. Without such stipulations, the proposed amendments may lead to an even greater level of destitution among divorced women. "
However, husbands, both new and old, are already running scared. Experienced divorce lawyers like Pinky Anand in Delhi and Mridula Kadam and Mrinalini Deshmukh in Mumbai say they have been inundated with calls from men who want to know how the propertysharing provision can impact them.
Deshmukh says that a husband called to ask if a property he purchased before his marriage but registered later would be treated as property acquired after marriage. Should I set up a trust, he wanted to know. The provisions can be defeated by those who wish to, points out Deshmukh. "What prevents a husband from transferring his property to some other family member?" Advocate Veena Gowda agrees that the matter is complicated. "Property in India is extremely complex with HUF, ancestral property, agricultural property. Unlike in other countries, tracing property and investments is difficult too, hence a proper formula needs to be worked out if the government has genuine intent, " she says.
TRIAL AND ERROR
Advocate Anand raises some valid doubts. Firstly it "could be a long way to go before it becomes a law". Also, unlike in the US, irretrievable breakdown doesn't guarantee a divorce. There has to be a trial and judges will decide whether a marriage is too broke to fix. But, she says, giving courts discretion in deciding the property share is pragmatic as it would have to be decided "case by case" as the woman may be earning too.
BIAS AGAINST MEN
The debate can go on. But what has come under attack from all lawyers is the provision that enables only the wife to oppose a petition filed by a husband on grounds of irretrievable breakdown. "I find it strange that only a wife can oppose on grounds of 'grave financial hardship'. It is against the principles of equality, " says Deshmukh, adding such a provision may be used by a wife to arm-twist husbands for financial gain. "Neither the wife nor the husband should feel short-changed. In the past, laws introduced to save women from domestic violence have been abused. "
Mittal agrees. "With changing times, more and more women are working, and they can walk out on a husband who has no financial resources. The amendment should have gender parity and a straitjacket formula such as equal division of all properties (movable and immovable) acquired after marriage by either husband or the wife. "
Divorce lawyer Neela Gokhale in Delhi points out another lacuna. "Desertion is already an existing ground for divorce and to establish it there has to be continuous two-year separation. But under the proposed ground of irretrievable breakdown, there has to be a three-year separation. " Lawyers say this could have been kept to two years or less. In New York, which introduced irretrievable breakdown only recently, one needs to show separation for six months only. Gokhale says the main problem lies in the tardy disposal and implementation of orders, which the Bill has not addressed.
There are other shortcoming in the amendment: The Bill for the first time makes irretrievable breakdown a ground for divorce, but a continuous three-year separation is still a pre-requisite. The waiver of the six-month cooling off period is not with retrospective effect. "The amendments are coming too late for me, " says a young CA in Mumbai. She had agreed on a mutual consent divorce, giving up her right to maintenance and he his right to child access. But just two weeks ago, he backed out saying he wanted visitation rights to his twoyear-old son. Now the couple is back at their lawyer's office. Advocate Mittal said the amendment hasn't taken into consideration a 1992 SC ruling that 'living separately' connotes not living like husband and wife and has no reference to the place of living. In an age where married couples live apart, across cities or even continents, due to career exigencies, the provision is liable to misuse, unless "separation" is specified as being due to "disputes and differences".
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