New Delhi: Twenty-nine years after it was first attempted, the government has moved afresh to amend the law to facilitate easier divorce for estranged couples.
Accordingly, the cabinet on Thursday cleared amendments to include irretrievable breakdown of marriage as the fourth ground for divorce. The move is also an acceptance of the rapidly changing social reality with divorces, particularly in urban India, on the rise and recognizing the rigidity of the existing legal framework, which often results in prolonged and bitter disputes.
The proposed changes will apply to the Hindu Marriage Act, 1955, which also covers Buddhists, Jains and Sikhs, and the Special Marriage Act, 1954. A similar move had to be abandoned in 1981 after resistance to the move. The latest amendments will need Parliament approval before becoming law.
Presently, divorce can be obtained under Hindu marriage laws on grounds such as adultery, cruelty, desertion, frustration arising from specific circumstances and mutual consent.
To listen marriage and relationship therapist Kamal Khurana’s talks about how the new amendment may affect couples in troubled marriages (Click here)
If the amendments do indeed become law, they will allow an individual to approach the courts for divorce on the ground that the marriage has broken down beyond repair. However, to prevent misuse, the changes also propose that a woman will have the right to oppose divorce on this ground, provided she is able to justify financial hardship; the courts will have to be satisfied by the terms of the agreement before granting divorce.
Welcoming the changes, K.T.S. Tulsi, senior advocate in the Supreme Court, said: “Couples indulged in mudslinging during divorce proceedings which further deteriorated the relationship. In a number of cases, the divorce cases go on for years and wedlock turns into deadlock.”
The amendment reflects the growing acceptance of divorce in contemporary India. Divorce still has a social stigma attached to it, but, increasingly, unhappy couples are able to view it as a positive solution to their problems.
Kamal Khurana, a Delhi-based psychologist and marriage counsellor, whose company Purple Alley has been offering therapy to troubled married couples and divorcees for seven years, has seen a rise in the number of people seeking his help.
“Earlier, India was living in denial,” he says. “Now people are coming to us more aware that there is a problem.”
Though he acknowledges the need for a loosening of the rules, this should come with certain conditions.
“They make it so tough in this country to have a divorce, so people are dragging their feet and living in the problem. Earlier, the court was asking for so much evidence that it was too tough, and now that has been made easier.”
He cautions against a complete liberalization of the process: “The other aspect is that if it’s made too easy, then people will be changing their partners the way they change their dresses,” he says. “It should be more intervention-based, and people should be offered some form of counselling to help them in the process, not just the change in law.”
Since the law did not sanction breakdown as a ground for divorce, the courts had to use its extraordinary and discretionary powers to grant divorce. The proposed amendments will seek to address this issue.
It will also address the shortcomings of the existing law that allows an individual to first consent and then delay court proceedings deliberately.
The proposed changes are based on the recommendations of the Law Commission, first in 1978 and then in 2009, together with judgements by the Supreme Court. In fact, the apex court had recommended to the Central government in 2006 that it should include irretrievable breakdown as a criterion.
The apex court in particular has played a crucial role in progressively relaxing the conservative approach to matrimonial disputes. In 2008, it legalized live-in relationships and two years earlier it sought the changes that the cabinet approved on Thursday.
However, some are of the view that such facilitation, while making divorce less painful, could also encourage familial conflicts.
Khurana notes an increased tendency towards multiple relationships and Western-style cohabitation before marriage, among his clients, along with a general lack of interest in the traditions of marriage. “Today’s generation has no one to tell them what a marriage is for and why it should happen. So we are also going the same way (as the West),” he says. “Surely the center of marriage is slowly going away here. People think it is only about problems; relationships are breaking down.”