Recent Amendments in Divorce Law in India

Marriage in India:

A marriage in India does not take place on pen and paper. It is solemnised duly in a ceremony by chanting a number of holy mantras. There are plentiful variations in marital practices.

Yet, R.N.Sharma’s definition of marriage is considered as one of the most appropriate definitions of a Hindu marriage. He said it is “a religious sacrament in which a man and a woman are bound in permanent relationship for the physical, social and spiritual purposes of dharma, procreation and sexual pleasure.

It is one of the most sanctified ceremonies that brings, two consenting souls together.

However, there is an upsurge in the number of divorce cases in India. The stumbling block is the incompatibility between the partners due to not having known each other scrupulously or for that matter sometimes, marriages just fail to survive certain adversities that, life brings along.

Either way, human beings are complex creatures and the decision to spend the rest of their lives together is one of the most difficult decisions to make. With both arranged and love marriages ending bitterly, it is important to understand the maintenance laws in India.

Law on Maintenance in India:

The provisions that govern maintenance in India are:

Section 24 of the Hindu Marriage Act, 1955 under which either the husband or the wife is entitled to be paid for the expenses of any proceedings under the Act.

Also, under Section 25 of the Hindu Marriage Act, the court may direct the respondent to pay maintenance or to pay such gross sum or monthly or periodical sum for a term not exceeding the life of the applicant.

The other relevant provisions are Section 18 and 19 of the Hindu Adoption and Maintenance Act, 1956 and Section 125 of the Code of Criminal Procedure, 1973.

However, it is crucial to note that Section 13 of the Hindu Marriage Act lays down various grounds for divorce but does not include irretrievable breakdown of marriage as one of the grounds.

The law on taxability of maintenance after divorce has been covered in HERE.

Irretrievable Breakdown of Marriage:

Irretrievable breakdown of marriage means that the man and wife cannot live together any longer. It has to be proved to the court that their relationship is so faulty that there are no chances of getting back together.

There are many instances in today’s world where couples are living together but their marriage is commensurate to a separation and there is no codified law to govern a situation like this. Ideally people face one of the three situations, (i) where both the parties believe that the marriage is failing, they can apply for divorce, (ii) when both agree that the marriage is failing, they can file divorce by mutual consent but what if (iii) one party believes that the marriage is failing but the other party refuses to believe it. Not including the third point in our Divorce law has catapulted divorce as one of the most major social problems.

In the light of this, a Law Commission Report was forwarded to the Government of India in 2009, in order to add irretrievable breakdown of marriage as a ground for divorce under Section 13 of the Hindu Marriage Act, 1955.

This was mainly brought to rumination by the Supreme Court’s recommendation to the Government to amend Hindu Marriage Act in the case of Naveen Kohli v. Neetu Kohli.

It has also been observed in V. Bhagat v. D. Bhagat by the Supreme Court that, irretrievable breakdown of the marriage is not a ground for divorce by itself but, while scrutinizing the evidence on record, if the court deems fit, divorce should be granted.

Marriage Laws (Amendment) Bill, 2013:

Ensuing several years of discussion, the UPA Government introduced Marriage Laws (Amendment) Bill, 2013 proposing amendments to the Hindu Marriage Act, which was passed by the Rajya Sabha but could not be taken up for discussion by the Lok Sabha.

Notwithstanding the fact that the present Government had decided to introduce the bill again, Law Minister Sadananda Gowda issued a statement saying that the Government has contemplated against the Bill since as much as 70 representations have been made against the Bill. Objections have been raised by, senior citizens and various non-governmental organisations like Save Indian Family contesting that the amendment would bring down the marriage rate in India.

Nevertheless, this amendment can be a boon in terms of maintenance as it entitles wives to husband’s share of the immovable property that he acquired in the course of their marriage in cases of irretrievable breakdown of marriage.

Drawbacks of the Bill:

However, this benefit is only limited to cases of irretrievable breakdown of marriage and not in other cases which, manifests Government’s hiccup in fostering this as there is no rationale behind why it should not be availed in all cases of divorce. The Goan family law allows wives to have a share in both self-acquired and inherited property in all cases of divorce.

Further, the Amendment Bill provides that a woman can oppose the divorce claiming financial hardships while the husband cannot do so. Again, this was uncalled for as in a country where we are fighting for gender equality day in and day out, it is important that Bills such as this, keep both genders on equal pedestal especially at a time when we have been witnessing an increase in false 498A cases against men.  Besides, the provision is also a violation of the Indian Constitution.

Also, under Section 13F of the Amendment Bill, wife can claim property acquired by the husband both before and after the marriage. This includes both ancestral and self acquired property.

In cases of divorce with mutual consent, the judge can grant divorce to one of the parties after three years irrespective of the stand of either party. Many a times, one party withdraws consent for various reasons including harassment. However, with this amendment, the judge can grant divorce even in the absence of one party.


The limitations in the Bill, some of which I discussed above, are highly disquieting. The bill seems to be women friendly but at the cost of the rights of the men. For instance, Section 13F should have addressed the rights of the men as well.

On the other hand, for those who are dissenting the rights of the wives in the husband’s property, it is un-varnished that a divorced woman should not just be safeguarded from hardships as is stated in the law but should be given a share in the assets.  A man and a woman both fabricate a family. It is true when said that, men make house and women make it home.

Giving a share of the property to women would be a huge milestone in the laws of a country that is mainly known for having a patriarchal outlook and would overshadow the belief that women have been subjugated in our society. Be that as it may, the Bill needs to undergo a lot of changes for it to be accepted by all especially in terms of gender equality.

Bill was circulated for inter-ministerial discussion in September 2014. However, due to various representations against it, the ministry decided to keep the bill on hold before taking the final call.

Picture Courtesy: Pixabay

Related Posts Plugin for WordPress, Blogger...