Wife can’t be simply evicted from home after divorce: Supreme Court

Supreme Court of India


 A Hindu woman cannot be evicted out of the matrimonial home after divorce except through procedure established by law, as there is no provision for her automatic eviction, the Supreme Court has ruled. A bench of justices G S Singhvi and S D Mukhopadhyay, in a judgement, said that though a woman may not have a legal right to continue in the house of the ex-husband, yet the latter cannot forcibly evict her. The apex court gave the ruling while upholding an appeal filed by Ranjit Kaur challenging the decisions of the Punjab and Haryana high court which had upheld her eviction from the house of a disputed property upon a decree of divorce granted to the husband Major Harmohinder Singh, an Army officer. “Learned counsel is right in his submission that even though in the decree of divorce, the appellant has not been given a right of residence and her occupation of the suit property can be treated as unauthorised, respondent No 1 (Singh) cannot evict her except after following the procedure established by law. “The material placed on record shows that the appellant had entered into the property as the wife of respondent No. 1. Therefore, even though, after passing of the decree of the divorce she may not have a legal right to continue to remain in possession of the suit property, respondent No. 1 cannot be given liberty to forcibly evict her,” the bench said.




The sanctity of marriage cannot be allowed to be undermined by the whims of one of the annoying spouses. The law allows divorce by mutual consent, but its intent is not to facilitate the dissolution of marriage. To save marriage and  not to hasten its dissolution should be the core concern of courts

Marriages are made in heaven, or so it is said. But we are more often than not made to wonder what happens to them by the time they descend to earth. Though there is legal machinery in place to deal with such cases, these are perhaps the toughest for the courts to deal with. Such is the case presently before with us.” (emphasis added) This is how a Bench of the Supreme Court consisting of D.K. Jain and H.L. Dattu, JJ., prefaced its judgment in the case of Hitesh Bhatnagar v. Deepa Bhatnagar delivered on April 18, 2011.

Hitesh and Deepa got married in 1994. The following year they were blessed with a daughter. Sometime in 2000 due to “differences in their temperaments”, they began to live separately from each other and have been living thus ever since. In 2001 they filed a petition under section 13-B of the Hindu Marriage Act, 1955, seeking divorce by mutual consent. Subsequently, before the court could consider their case for a divorce decree, the wife withdrew her consent. This resulted in the dismissal of the petition by the district court.

The High Court through its “well considered order” dismissed the appeal of the husband against the decision of the trial court. On further appeal, the husband again failed to get the desired divorce decree from the Supreme Court.

Why it is tough

One reason that applies to the resolution of matrimonial disputes generally is of course the inherent complexity of human nature and behaviour defying the application of set standard formulas. The other reason is the persistent misconceptions or misgivings about the very nature, scope and ambit of the remedy of divorce by mutual consent itself.

The apex court in the Hitesh Bhatnagar case has not just decided the dispute but undertaken fairly an extensive survey of the law developed through judicial decision-making. A juridical analysis of this decision would, therefore, be instructive in unfolding the various nuances. The following misgivings often come into vogue.

A close reading of section 13-B of the Hindu Marriage Act, 1955, shows that a divorce decree by mutual consent is not really a divorce decree by mere consent of parties. In effect, it is with the consent of the court. It becomes operational “with effect from the date of the decree” granted by the court and not from the date of filing of the petition “by both the parties to a marriage together.” To this extent, the expression “divorce by mutual consent” seems to be a misnomer. Literally speaking, it seems to imply that as there is “marriage by mutual consent” by taking seven steps around the sacred fire, say, in clockwise direction, so is “divorce by mutual consent” as if taking seven steps in anti-clockwise direction!

Compared to the grant of divorce on grounds like adultery, cruelty, desertion, etc. under section 13 of the Act, the conditions for the grant of decree under section 13B are rather more stringent. Under the mutual consent provision, the parties intending to dissolve marriage are required to wait, not only for at least one year from the date of marriage, termed as the “trial period” under section 14 of the Act, but also obligated to show further that they have been living separately for a period of one year or more before the presentation of the petition, and during this period of separation “they have not been able to live together” as husband and wife. Besides, after filing the joint petition they must wait further for at least another six months, usually termed as the “cooling off period”. In short, mere filing the joint petition does not by itself snap the marital ties.

After the lapse of six months, if the said petition is not withdrawn in the meanwhile either singly or jointly, both the parties may move the court by way of joint motion within the stipulated period of 18 months from the initial date of filing of the joint petition. The interregnum is obviously intended to give more time and opportunity to the parties “to reflect on their move”, give a second thought or otherwise seek advice and counsel from relations and/or friends for maintaining their marriage.

 Withdrawal of consent

For pursuing divorce by mutual consent, it is imperative that mutual consent should continue till the decree is granted by the court. In case, even if one of the parties to marriage withdraws his or her consent initially given, the court instantly loses the jurisdiction to proceed further and grant relief under section 13-B of the Act. In this respect, the Supreme Court in the Hitesh Bhatnagar case reaffirmed its earlier decision in Sureshta Devi v. Om Prakash (1991), which overruled the view of the High Courts of Bombay and Delhi that proceeded on the premise that the crucial time for giving mutual consent for divorce is the time of filing petition and not the time when they subsequently move for a divorce decree.

The statutory expression “they have not been able to live together” under section 13-B(1) of the Act, is to be construed not just as a trite statement of pure volition. It bears a deeper connotation. It indicates, as the apex court has expounded, “the concept of broken down marriage”’ implying thereby that reconciliation between them is not possible. In this respect, the court is duty bound to satisfy itself “after hearing the parties and after making such inquiry as it thinks fit” about the bona fides and the consent of the parties, and then and then alone the court shall consider the grant of divorce decree.

The purpose of the period of 18 months from the date of presentation of the joint petition under Section 13-B (2) of the Act is for re-think and reconciliation. If the consent is withdrawn by either party to marriage, the petition becomes instantly ineffective and is liable to be dismissed at the threshold on this very count.

In view of the long separation of more than a decade from his wife, the husband, as a last resort, urged the apex court to dissolve his marriage by exercising its special jurisdiction under Article 142 of the Constitution. To buttress his claim he specifically cited a proximate decision of the Supreme Court itself – Anil Kumar Jain v. Maya Jain (2009) – wherein though the consent was withdrawn by the wife, yet the court found the marriage to have irretrievably broken down and granted a decree of divorce by exercising its special constitutional power.

Special power

However, in the instant case the apex court refused to invoke its special power in favour of the husband mainly for two reasons. One, the special power is to be used very sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions cannot bring about complete justice between the parties.

Generally such a power is exercised neither in contravention of statutory provisions nor merely on grounds of sympathy. Two, the sanctity of the institution of marriage cannot allowed to be undermined merely at the whims of one of the annoying spouses, more specially in the situation and circumstances, as in the present case, wherein the wife has stated that she wants this marriage to continue “to secure the future of their minor daughter”.

Invariably it is found that a petition for divorce on fault grounds under section 13 is replaced by the remedy of dissolution of marriage by mutual consent under section 13-B of the Act. This is advisedly done as if the purpose of the latter provision is to facilitate divorce by effecting compromise between the parties in respect of ancillary matters. This in our view is perhaps the most erroneous construction of the provisions of section 13-B of the Act. The purpose of the remedy of mutual consent, we repeat, is not to facilitate the dissolution of marriage, inasmuch as even the provisions of section 13-B are subject to the other provisions of the Act.

Thus, to save marriage and not to hasten its dissolution should be the core concern of the court. Spouses may think of dissolving their marriage if they so fancy provided the court is satisfied that any of the grounds for granting relief exists, and that in court’s view it is not possible to make them reconciled!

Divorce with Mutual Consent- What it is all about

 Section 13-B of the Hindu Marriage Act, 1955, deals with divorce by mutual consent

Compared to the grant of divorce on grounds like adultery, cruelty, desertion, etc. under section 13 of the Act, the conditions for the grant of decree under section 13-B are rather more stringent

A divorce decree by mutual consent is not really a divorce decree by mere consent of the parties. In effect, it is with the consent of the court

The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage

They have to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce and that during this period of separation they have not been able to live together as husband and wife

After filing the joint petition they must wait further for at least six months

It is imperative that mutual consent should continue till the decree of divorce is granted by the court

If the consent is withdrawn by either party to marriage, the petition becomes instantly ineffective and is liable to be dismissed on this very count. 

The writer is the Director (Academics), Chandigarh Judicial Academy. 


Fresh directions in custody battles

A recent judgment of the Supreme Court provides some direction in the ever-increasing battles for custody of children. But a legislative framework is also urgently required so that decisions are not just left to judicial subjectivity


The world has shrunk. Inter-continental travel is easier, affordable, faster and comfortable. As a corollary, it has lead to a surge in relationships between individuals of different nationalities and diverse backgrounds. International mobility has dismantled inter-cultural taboos. But when marriages break down, the children become the worst victims. Caught in the cross fire of broken human relationships with ensuing disputes over custody and relocation, children are traumatised and torn between parents. Attempts are often made to remove the children and take them to other countries. The hazards of international child removal are accentuated by the chronic problems of maintaining access or contact internationally and have often defied legal solutions.

However, the Supreme Court of India on 13 May, in a cross-border child custody battle, has laid down principles and created a precedent which is bound to have wide-ranging impact. The matter arose in a US based NRI couple’s case. The wife left her husband in the US and returned to India with her son. She moved a Delhi Guardian Court and got custody rights. In a suit filed in the USA by her estranged husband, who claimed that his wife had abducted the child, a US Court issued a red corner notice against the wife and directed her to return to the USA.

Courts differ

While the wife, who had decided to settle down in India, took refuge in a Delhi district court order allowing her custody of her son, the husband filed an appeal before the Delhi High Court, which set aside the lower court’s order. It upheld the appeal and ruled that since a US court had already issued an order in the custody case and since the parents and the child were all American citizens, Indian courts had no jurisdiction in the matter and all issues needed to be agitated before courts in the USA. The wife then preferred an appeal to the Supreme Court.

The Apex Court this month set aside the judgment of the Delhi High Court and directed that while the proceedings shall go on before the Delhi Guardian Judge to be disposed off as expeditiously as possible, till then, the interim custody will remain with the mother and the father will enjoy visitation rights only.

The Apex Court culled out three questions for determination. The first question related to the jurisdiction of the ‘Guardian Judge’ to entertain the petition for adjudicating custody issues. Interpreting the phrase “ordinarily resident”, the Court held that the intention of parties would also go to determine this important question. The fact that the child was studying and residing in Delhi for the past three years, the court held, had clearly established that both the mother and the child were ‘ordinarily residents of Delhi’. E-mails produced by the wife as evidence also established that the father of the child was a party to this arrangement. Hence, it concluded, the Guadian judge in Delhi had the jurisdiction and competence to decide the custody rights.

The Court also held that the jurisdiction of the Guardian Judge could not be declined on the principle of comity of Courts. Examining earlier precedents, the Court ruled that proceedings in Habeas Corpus matters are summary in nature which may lead to determination of custody issues when the child is within the jurisdiction of the High Court. Distinguishing and contrasting Guardianship proceedings based on evidence, it has been held that if the removed child is not ordinarily resident within its jurisdiction, the Guardian Judge has no jurisdiction to entertain the proceedings even if it is an act of violation of a foreign Court custody order.

Disapproving of the application of the “Comity of Courts” principle in the matter, the Supreme Court held that no foreign court order had been violated by the wife. There was no final decision by any US Court, the minor was voluntarily in India and there was no intention of the wife and the child to return to the USA. The Supreme Court held that the interest of the minor would be better served if the mother continued to have the custody of the child, which was also a more acceptable option.

Balanced view

With all fairness to the husband, the Supreme Court in the third question also modified the order of the Guardian Judge and granted visitation rights to him during the pendency of the petition before the Court in Delhi. Holding that the “father’s care and guidance” is necessary at the “formative and impressionable stage” of the child’s life, the Court viewed that for the “child’s healthy growth and to stay in touch and share moments of joy, learning and happiness with each other”, the father be granted visitation rights through telephonic contact, video conferencing and visits during vacations as determined by the Guardian Judge. This was indeed a humane and a benevolent view of the whole situation.

The well settled and balanced verdict is a harmonious blend of legal principles, a positive interpretation of parental rights, a decisive pronouncement of jurisdictional issues and brings out a confluence of earlier precedents by distinguishing them on factual basis. It is a much needed decree of the Apex Court on legal battles over child removal and normally fought on uncertain grounds with no legislation on the subject. There is, therefore, a dire need to enact a statutory law on inter-parental child removal to be uniformly followed in all such matters. An appropriate legislative solution will be in the larger interests of children. The yeoman effort by the Courts to carve out solutions on a case to case basis can only be a time consuming exercise which cannot be stretched indefinitely.

With the increasing number of Indians migrating to other countries and the growing number of Overseas Citizens of India status, inter-parental child removal needs to be resolved on an international platform. It is no longer a local problem. The phenomenon is global. Parallel Court proceedings in two jurisdictions by warring parents reduce the child to be won over as a trophy at the end of a legal war. Steps have to be taken by joining hands globally to resolve these conflicts by interaction of Courts and countries.

Till India does not become a signatory to the Hague Convention on Civil Aspects of International Child Abduction, this cannot be achieved. It is equally important to create a domestic uniform law with clear, authentic and universal child custody principles before India accedes to the Convention. The machinery to implement the convention must first be devised. Divergent views only divide children. Removed children cannot be allowed to live on a no man’s land. The temptation to wrongfully remove children must be deterred. The cruel abduction of children must find a legislative solution forthwith.

The writer, a lawyer, has authored several books including “India, NRIs and the Law” and is a member of the U.T. NRI Cell, Chandigarh.

Fresh guideline laid down by the Supreme Court of India

The Supreme Court laid down the following principles in its judgment on the case delivered earlier in May.

The expression “Ordinarily resides” in Guardian & Wards Act to be determined also by ‘intention’ of parties and not merely on residence abroad or overseas nationality.

Custody Orders issued by foreign courts not to be taken as conclusive and binding but should be considered as just one of the factors or consideration that would go into the making of a final decision by an Indian Court. “Objectivity and not abject surrender is the mantra in such cases, ” says the apex court’s order.

Habeas Corpus petitions being summary in nature can determine custody issue of children present in its jurisdiction and also embark upon a detailed enquiry in cases where welfare of a minor is in question. In Habeas Corpus proceedings, the legality of the detention of the alleged detenue in the territorial jurisdiction of the Court will be gone into.

The principle of “Comity of Courts” in child custody cases has generally held that foreign judgments are unconditionally conclusive. However, welfare of the minor being paramount, the Supreme Court now says, Indian Courts are duty bound to examine the matter “taking the foreign Judgment only as an input for final consideration.”

(Judgment delivered by Justice Tirath Singh Thakur for the bench on May 13)

No quick fix solution in custodial conflicts

The number of cases related to inter-parental child custody conflicts has gone up sharply. As more and more marriages fall apart, Non-Resident Indian parents often remove their children to India or to foreign jurisdictions either in violation of a foreign court custody order or in infringement of the other spouse’s parental rights.

The Hague Convention, a multilateral treaty developed by the Hague Conference on Private International Law provides an expeditious method of returning a child taken from one member nation to another.

But though the Convention concluded on 25 October 1980 and the treaty became effective from 1 December 1983, India is still not a signatory despite the fact that it has been accepted by 80 nations so far.

The Convention was drafted to “ensure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence.”

The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16.

But “Inter-parental child abduction” is neither defined nor is it an offence under any statutory law in India. Hence, it is extremely difficult to prove or establish child removal at the hands of a parent who is a natural guardian of the child.

The most expeditious remedy is to file a Writ of Habeas Corpus in the High Court or the Supreme Court for return of custody by a parent on the strength of a foreign Court order or in violation of parental rights.

The alternative remedy is to initiate guardianship proceedings under the Guardian and Wards Act, 1890 by leading evidence and placing all cogent material on the record before a Guardian Judge. Process is cumbersome, tedious and time consuming. Also difficult and slow for a foreign parent.

In 1984, in Surinder Kaur Vs. Harbax Singh Sandhu & in 1987, in Elizabeth Dinshaw Vs.Arvind M. Dinshaw, the Supreme Court exercising its summary jurisdiction returned the removed minor children to the foreign country of their origin on the basis of foreign court custody orders.

In 1998, in Dhanwanti Joshi Vs. Madhav Unde & in 2000, in Sarita Sharma Vs. Sushil Sharma, the Courts favored keeping the child’s welfare and best interests in mind over all other aspects. Accordingly, Foreign court orders became only one consideration in child custody disputes which were to be decided on the merits of each case without any summary return.

In 2010, in V. Ravi Chandran Vs. UOI and again in 2010 in Shilpa Aggarwal Vs. Aviral Mittal, the Supreme Court, following Habeas Corpus petitions, directed the summary return of children to USA and UK respectively, leaving all aspects relating to child welfare to be investigated by Courts in the foreign jurisdiction.

In May 2011, in Ruchi Majoo Vs. Sanjeev Majoo, in an appeal, in a Guardian and Wards petition, the Supreme Court has directed that the proceedings for deciding custody rights shall go on before the Guardian Judge at Delhi and till then the interim custody shall be with the mother. The father has been given visitation rights.

Why should India be interested in joining the 1980 convention?

India is no longer impervious to international inter-parental child removal

The present situation plays into the hands of the abducting parent

The offending parent at times usurps the role of the competent Court

India’s non-signatory status has a negative influence on a foreign Judge who often declines a parent from taking the child to India fearing non-return.

The Convention avoids the problems that may arise in Courts of different countries which are equally competent to decide such issues

The best possible solution would be to become a signatory to the Hague Convention and enact a Indian International Child Abduction Law and create a Central Authority for liaison and for seeking adjudication before designated existing Indian Courts to resolve such disputes to decide summary return or to render decisions on merit. In the interest of children, the stalemate must end.


Not all live-in affairs are ‘relationship in the nature of marriage’, says Supreme Court

J. Venkatesan in THE HINDU

NEW DELHI: If a man keeps a woman, this relationship will not be in the nature of marriage for her to claim the benefit of live-in to get maintenance under the Protection of Women from Domestic Violence (PWDV) Act, 2005, the Supreme Court has held.

A Bench of Justice Markandey Katju and Justice T.S. Thakur pointed out that the Act had used the expression “relationship in the nature of marriage” and not “live-in relationship” for the grant of benefit to affected women. “In our opinion, not all live-in relationships will amount to a ‘relationship in the nature of marriage’ [for women] to get the benefit of the Act. A ‘relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that the couple, although not formally married, must hold themselves out to society as being akin to spouses. They must be of legal age to marry. They must be otherwise qualified to enter into a legal marriage, including being unmarried. They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.”

(Earlier this month, Justices G.S. Singhvi and A.K. Ganguly referred to a larger Bench the issue relating to grant of maintenance to women in live-in relationships; whether it could be done under Section 125 CrPC or the PWDV Act.)Writing the judgment in this case, Justice Katju said: “Merely spending weekends together or a one-night stand would not make it a ‘domestic relationship’.

“To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. No doubt the view we are taking would exclude many women who have had a live-in relationship from the benefit of the 2005 Act, but then it is not for this court to legislate or amend the law. Parliament has used the expression ‘relationship in the nature of marriage’ and not ‘live-in relationship’. The court, in the grab of interpretation, cannot change the language of the statute.”

The Bench quoted the judgments of various courts in the United States. “In the USA the expression ‘palimony’ was coined, which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him. Although there is no statutory basis for grant of palimony in the USA, the courts there which have granted it have granted it on a contractual basis.”

However, “in the case before us we are not called upon to decide whether in our country there can be a valid claim for palimony on the basis of a contract, express or implied, written or oral, since no such case was set up by the respondent in her petition under Section 125 Cr.PC.”D. Velusamy was aggrieved over a Madras High Court judgment upholding a Coimbatore trial court order, awarding maintenance of Rs. 500 to respondent D. Patchaiammal, declaring her his wife, though his first marriage with Lakshmi was not dissolved.The Bench set aside the impugned judgment of the High Court and the Family Court Judge, Coimbatore, and remanded the matter to the Family Court Judge to decide the matter afresh in accordance with law and in the light of its observations.




Can a broken marriage be stitched together?


On June 10, 2010 the Union Cabinet approved the introduction of a Bill, i.e., The Marriage Laws (Amendment) Bill, 2010, to be tabled in the ongoing monsoon session of Parliament. It seeks to amend the Hindu Marriage Act, 1955 (HMA) and the Special Marriage Act, 1954 (SMA) to provide for irretrievable breakdown of marriage as a ground for divorce.

The long-awaited move comes more than a year after the Law Commission of India suo motu took up the study of the subject and in its 217th report in March 2009 strongly made the above recommendation.

The Commission examined the existing legislation as well as a number of judgments of the Supreme Court and the High Courts on the subject and was of the view that “irretrievable breakdown of marriage” should be incorporated as another ground for granting divorce under the provisions of the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. The Commission also recommended that before granting a decree for divorce on the ground that the marriage has irretrievably broken down, the court should examine whether adequate financial arrangements had been made for the parties and children.

Although such a ground for divorce is currently not mentioned in HMA, the Supreme Court has, in appropriate cases, granted a decree of divorce on grounds of “irretrievable breakdown of marriage” by virtue of the powers vested in it under Article 142 of the Constitution. However, different Benches of the Supreme Court have taken separate stands over this issue.

In March, 2006, a three-judge Bench of the Supreme Court granted divorce in Naveen Kohli vs. Neelu Kohli (2006) 4 SCC 558. But in February, 2009, a two-judge Bench of the court in Vishnu Dutt Sharma vs. Manju Dutt Sharma (2009) 6 SCC 379, refused to grant divorce on the ground of irretrievable breakdown of marriage. The court observed that it could not add such a ground to Section 13 of HMA as it would amount to amending the Act which is a function of the Legislature.

In the most recent view in May, 2010, in Neeti Malviya vs. Rakesh Malviya (2010) 6 SCC 413, the Supreme Court, while examining the question of waiving the six-month waiting period for divorce by mutual consent by invoking its extraordinary powers under Article 142 of the Constitution, has referred the question for consideration to a Bench of three judges.

Clearly, the underlining note of invoking irretrievable breakdown of marriage as a ground for divorce did not find favour with the Bench. Thus, from the views in the Judgment of the Supreme Court in V. Bhagat vs. D. Bhagat (1994) 1 SCC 337 allowing divorce on the ground of irretrievable breakdown of marriage to the pronouncement of the Supreme Court in Anil Kumar Jain Vs. Maya Jain (2009) 10 SCC 415, not allowing so, there has been a variant view on this controversial subject for 15 years. The Supreme Court, however, has been consistent in its view that neither the High Courts nor the subordinate courts can exercise such power vested only in it.

Realistically speaking, a broken marriage limps to dissolution. Law cannot reunite parties if the matrimonial bond has severed. Consequently, a peaceful parting is necessary if the parties cannot reconcile despite best efforts. Thus, the adding of irretrievable breakdown of marriage as a ground for divorce by Parliament by amending the marriage laws may be the best possible solution for the future of limping marriages.

However, the power of the court to grant divorce on the ground of irretrievable breakdown should be exercised with extreme caution only in circumstances warranting so and when it is in the interest of both the parties. Due regard for maintenance of the dependent spouse, besides welfare of children, must be safeguarded by enabling legislation. Hence, simultaneous amendments to other provisions of marriage laws in this regard must follow forthwith whenever such a law is made.

A balance needs to be maintained wherein the sanctity of the institution of marriage should be protected as well as the individual interests of aggrieved spouses addressed. Moral and cultural values are embedded in Indian ethos and emulation of western principles in matrimonial matters is not appreciable and should not be adopted with ease. Hence, the ground of irretrievable breakdown of marriage should be introduced cautiously and hedged with safeguards so that the provision is not misused.

Nevertheless, there is also an urgent need to set up a family court in every district of the country for adjudicating all kinds of matrimonial disputes. It is really unfortunate that even after more than 25 years of enactment of the Family Courts Act, 1984, only a miniscule number of such courts have been set up only in metropolitan cities.

Also, there must be marriage and divorce laws not just for Hindus but also for Muslims, Christians, Parsis and other religious denominations in line with contemporary practices of young generations who receive higher education and have more cosmopolitan thinking of the brave new world. Times have changed and the people of India must move ahead without living in the past. Harmony at home and peace at work is the most important component and quality of successful Indians in the 21st century. A stable family is an epitome of Indian society.

(Author of “India, NRIs and the Law,” the writer is a Chandigarh-based practising lawyer and can be reached at anilmalhotra1960@gmail.com)

NCW to SC: Is it cruelty to threaten divorce?

The National Commission for Women (NCW) wants the Supreme Court to rule on whether a woman can be held liable for cruelty under dowry law if she threatens to “force” her son to take divorce.

“Whether threatening a daughter-in-law that she (the mother-in-law) would force the son to take a divorce not amount to mental cruelty thereby clearly attracting Section 498A (dowry harassment) of the IPC?” the commission has sought a judicial clarification from the apex court. It has further asked the court to decide if “advising” a daughter-in-law to take divorce by mutual consent and inducing her with a monetary compensation amounts to cruelty as defined under Section 498A.

The top women’s body has sought these clarifications in a curative petition filed before a Bench headed by Justice P Sathasivam against a July 27, 2009 Supreme Court judgment.

The National Commission for Women (NCW) wants the Supreme Court to rule on whether a woman can be held liable for cruelty under dowry law if she threatens to “force” her son to take divorce.

“Whether threatening a daughter-in-law that she (the mother-in-law) would force the son to take a divorce not amount to mental cruelty thereby clearly attracting Section 498A (dowry harassment) of the IPC?” the commission has sought a judicial clarification from the apex court. It has further asked the court to decide if “advising” a daughter-in-law to take divorce by mutual consent and inducing her with a monetary compensation amounts to cruelty as defined under Section 498A.

The top women’s body has sought these clarifications in a curative petition filed before a Bench headed by Justice P Sathasivam against a July 27, 2009 Supreme Court judgment.

“In this judgment, this court has held that (a) kicking a daughter-in-law; (b) constantly threatening her that they (in-laws) would convince their son to take divorce does not amount to cruelty as under Section 498A (dowry harassment) of the IPC,” states the NCW petition filed by advocate Aparna Bhat.

The commission said it had, during the “course of its work”, found dowry harassment and domestic violence “more of a norm than an aberration and the law has to be interpreted in a manner beneficial to women in distress”.

The 2009 judgment of Justices S B Sinha and Cyriac Joseph had quashed dowry harassment charges instituted against Bhaskar Lal Sharma and his wife by their daughter-in-law, Monica, who accused them of physically harming her and threatening her with divorce.

Section 498A says it amounts to ‘cruelty’ if a husband or his relative wilfully subjects a woman to actions that may drive her to commit suicide or cause grave injury to herself. A person is liable to undergo a maximum imprisonment of three years if found guilty.

The petition asks the court whether “constantly interfering in the marriage of a newly married couple by advising a daughter-in-law to give divorce, kick her, and criticise her on a regular basis” match the definition of cruelty under Section 498A of the IPC.

India divorce just got easier — for some

By Hanna Ingber Win — GlobalPost  Published: June 26, 2010 08:45 ET in Asia

MUMBAI, India — Irrespective of class or caste, a fundamental aspect of Indian society remains: marriage is a must. Children are seen as giving women value, and uniting with a husband in order to produce those children is still often seen as the only option, say gender specialists. And yet, as more women become better educated, financially secure and independently minded, their ideas and expectations as to what marriage should look like are changing.While it is hard to make generalizations about a country as vast as India, “there is definitely a churning and a change that is taking place in the realm of marriage,” said journalist and columnist Kalpana Sharma who covers developmental issues and gender. “Women are not willing to put up with stuff that their mothers were willing to put up with.”

Women’s ideas and expectations are changing, often faster than Indian society can keep up, and an inevitable clash has arisen. As a result, more Indian couples are deciding to divorce.

The Indian government has responded to a rise in marital breakups and a backlog in court cases by proposing an amendment this month to make it easier to get divorced. In the past, couples have had to prove mutual consent, adultery or abuse. If, as expected, parliament approves this amendment to what is known as the Hindu Marriage Act 1955 and Special Marriage Act 1954, couples must only show “irretrievable breakdown” of the marriage or “incompatibility.”It can currently take couples anywhere from six months to 20 years to obtain a divorce, Supreme Court advocate Kamini Jaiswal told AFP. There are 55,000 divorce cases pending in courts across the country, according to Union Law Minister M. Veerappa Moily, as reported in the local press.

Despite the rise in number, divorce continues to be rare in India as it carries with it tremendous social stigma against the couple and families involved. Experts say 11 in every 1,000 marriages in India end in divorce, whereas the rate in the United States is about 400 in every 1,000.

While the stigma of divorce appears to have decreased in some communities, the woman is still almost always blamed for the breakup, journalist Sharma said. “There’s a feeling that the woman should ‘adjust.’ You have to adjust, which means basically you have to accept all kinds of crap,” she said.Leena Joshi, the director of Apnalaya, an organization working with women and families in Mumbai’s slums, said the women she works with are more likely to put up with husbands who are abusive, adulterous or alcoholics than go through the public humiliation of getting divorced. “Divorce is the the the the the last resort,” she said.

Society is unsympathetic to single women, whether they are unmarried, divorced or widowed. In some communities, widows are not allowed to attend wedding ceremonies because it is believed they would bring bad luck.“If married, [women] have more security, and society respects them,” Joshi said. When people meet a married woman, they think, “‘She’s married, she’s somebody’s property, so treat her respectfully.’”There are also practical realities that make divorce for poor women close to impossible, Joshi said. The women likely have no place to go as they had been living with their in-laws, and their own parents are unlikely to support them if they disagreed with the divorce. There are also few homes or affordable housing options in Mumbai for single women, especially those with children.

“A lot of women stay in marriage because they have nowhere to go,” Joshi said.Furthermore, while the change in the law will make it easier for those who married under Hindu or civil marriage law to get divorced, it will not impact women who had another type of marriage such as a Muslim one. For those women, it is almost impossible to get divorced, Joshi said.Muslim personal law in India stipulates that there are nine grounds on which a woman can file for divorce, and those do not include “irretrievable breakdown.” In practice, most Muslim women in India have little option for divorce, according to Noor Jehan of Bharatiya Muslim Mahila Andolan (Indian Muslim Women’s Movement).

Men can divorce by reciting the talaq, which translates as “I divorce you,” three times. A Supreme Court judgment prohibits this type of oral, unilateral divorce without an accompanying arbitration. And yet, most of the Muslim community’s ulemas or clerics believe this to be a valid form of divorce, and the practice continues, Jehan said.Afsha, 21, who asked to only be referred to by her first name, was working as a high school teacher while continuing her own studies when she married in December. Before marriage she told her husband and in-laws she would continue her education.

“They said I’d have the freedom to do everything and on that condition only I got married,” she said.But after getting married, everything changed. Her husband does not allow her to work, get her master’s degree, leave home or visit her mother without his permission, she said. Her job is to cook, clean and produce babies.“I cannot see any more future for myself,” she said while holding back tears. “My certificates are all in the cupboard.”Afsha said she considers leaving her husband, but she cannot get divorced because in her community, the only option is for the man to say the talaq three times.

”There is no way, he has to say it,” she said softy. “I have to convince him to say that.”For those married under Hindu or civil law, the ability to get divorced is likely to get much easier soon. The law will be on their side. Next hurdle: society.


Finally, a law to deal with dead marriages

Relationships between individuals depend largely on trust, respect and love for each other. Matrimonial relationships are more complex. For, they involve delicate human and emotional traits coupled with an intrinsic need for adjustment. Amid these complexities, both must also have breathing space to preserve their own individuality.

Realising that these complexities could impact on husband-wife relations, the Hindu Marriage Act, 1955, had made room for divorce if both or one of them realized that they were caged in a marital bond and it was better to quit then suffer. Section 13 of the act provided a long list of grounds for divorce given the complexities of human nature. One could seek divorce on the following grounds: adultery, conversion from Hinduism to another religion, unsoundness of mind, suffering from venereal or virulent diseases in communicable form for three continuous years, renouncing the world, missing for seven years or more, and no cohabitation for two years.

In addition, it entitled a woman to divorce if the husband was found to be guilty of marrying again or having a wife prior to marriage and if the earlier wife was alive; or he was found guilty of rape, sodomy or bestiality after the solemnization of marriage.

Despite the elaborate grounds, courts in the last two decades came across cases where a man and woman were living a dead marriage, unable to find a ground to untie the knot, mainly stemming from mental cruelty inflicted by one on the other.

The Supreme Court for the first time on January 13, 1995, in Romesh Chander vs Savitri [1995 (2) SCC 7], posed the question whether a marriage which is otherwise dead emotionally and practically should be continued. The problem — irretrievable breakdown of marriage — kept raising its head with frustrating regularity. A 3-judge bench of the apex court, in 2007, dealt with it elaborately in Samar Ghosh vs Jaya Ghosh [2007 (4) SCC 511].

Justice Dalveer Bhandari, the author of the unanimous judgment, examined the worldwide judicial trends starting from the 1864 British case of Prichard vs Prichard, where the court had felt that repeated acts of unprovoked violence by the wife were to be regarded as cruelty, although they might not inflict serious bodily injury on the husband.

The irretrievable breakdown of marriage theory was first formulated by the Law Commission of India in its report to the government on April 7, 1978, taking into account a two-decade long problem. This means, the Union Cabinet ratified the need to address the problem after its ill effects on marriage was diagnosed more than 50 years ago. The commission had said, “In case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfilment which they seek.

“Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances.”

But the breakdown theory, recognized by the commission and the apex court as a solid ground for annulling a marriage, does not give licence to any husband to walk into court seeking divorce claiming that his marriage has broken down irretrievably. The courts examining such pleas must apply the strict scrutiny test, the SC had said in its 2007 judgment.

A husband or wife must show that “they have separated and the separation has continued for a sufficient length of time and one of them has presented a petition of divorce” before taking recourse to the breakdown theory. Moreover, the courts faced with such a case “no doubt, should seriously endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld,” the SC said, adding, “The consequences of preservation in law of a unworkable marriage, which has long ceased to be effective, are bound to be a source of greater misery for the parties.”

Matrimonial and judicial cruelty

Soli J Sorabjee in The Indian Express

Cruelty is a ground for divorce under the Hindu Marriage Act. The problem is that this Act does not define cruelty. A bench of the Supreme Court comprising Justices Sathasivam and Ganguly in a recent illuminating judgment has dealt with this vexed problem. Justice Ganguly, speaking for the Court, rightly points out that cruelty in matrimonial cases can be of infinite variety. “It may be subtle or even brutal and may be by gestures and words. It may take the form of violence. At times, it may be just an attitude or an approach.” Again, the alleged cruelty “may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance”. In a realistic vein, the Bench approving the observations of Lord Reid in a House of Lords judgment ruled that in matrimonial cruelty cases there is no presumption that the parties are reasonable people “because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people”.

Thereafter follows a wholesome caveat: “We, the judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties.” One passage in this elegantly penned judgment—”silence in some situation may amount to cruelty”—is puzzling. When a spouse is ranting and shrieking, silence is the best option, otherwise there would be endless vociferous recriminations which would certainly add to noise pollution. There is real silence when a human being withdraws from the noise in order to find peace in his inner sanctuary.

Incidentally, silence can be cruel when a judge hearing a case maintains a monastic silence with the inscrutable face of the sphinx. Counsel has no clue about what the judge is thinking, whether he has understood counsel’s submissions or they have passed him by. Should counsel repeat his or her arguments or keep silent like the judge? A cruel predicament indeed and an instance of subtle judicial cruelty.


India’s Living Constitution

Ronojoy Sen,  23 January 2010,  in Times of India

A day before the Indian Constitution was formally adopted on November 26, 1949 after nearly three years of intense deliberations, Bhim Rao delivered one of his finest speech summing up the work of the Constituent Assembly, he said, “However good a constitution may be, it is sure to turn out to be bad because those who are called to work it happen to be a bad lot. However bad a constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot.” This was the onerous burden that Amebedkar and the framers of the Indian Constitution put on future governments and leaders. There was, however, no doubt in Ambedkar’s mind that along with time the Constitution would be amended. In his concluding speech, Ambedkar pointed out that compared to the American and Australian constitutions, the process for amendment of the Indian Constitution was much simpler. Indeed, the provisions for amendment is what makes a constitution a living document, and successive governments have not been shy of using it. So far the Indian Constitution has been amended 94 times; and there are plenty more on the way. This is in contrast to the US Constitution, ratified over two centuries ago, which has been amended a mere 27 times; the first 10 – or what is known as the Bill of Rights – happening within a few years of the Constitution coming into effect.

Of the several amendments to the Indian Constitution, all are of course not of equal importance. But like the
US Constitution, the First Amendment to the Indian Constitution must rank up there as one of the most critical. It would also set in motion a series of face-offs with the judiciary over who was the final arbiter of the Constitution – Parliament or the courts. It is estimated that of the first 45 amendments to the Constitution, about half were aimed at curbing the judiciary. Indeed, the First Amendment was primarily triggered by adverse court judgments. The Madras high court and subsequently the Supreme Court had struck down a legislation which put in place a quota system in government-run medical and engineering colleges for lower castes. At around the same time the major plank of the socialist policy of the Congress government in the 1950s — land reform — was being short-circuited by high courts across the country. The last straw was when the Supreme Court upheld the right to circulate a Communist journal in Madras against the state government’s wishes. Parliament stepped in by amending the Constitution to ensure that equality before law and provisions for ensuring caste equality did not bar legislation for providing reservation for backward classes. It also amended Article 19 – which guaranteed the fundamental right to freedom of speech among other things – by introducing “reasonable restrictions” on speech in the interests of the state.

Finally, The First Amendment inserted Article 31A in the Constitution which stipulated that nothing in the Fundamental Rights could be used to strike down laws for the appropriation of property. During the parliamentary debate on the First Amendment, Jawaharlal Nehru made the oft-quoted statement on the regressive nature of the judiciary: “Somehow we have found this magnificent Constitution we have framed, was later kidnapped and purloined by lawyers.” He added for good measure that the amendment was meant “to take away, and I say so deliberately, to take away the question of zamindari and land reform from the purview of the courts.” One of the more far-reaching components of the First Amendment was Article 31B, which created the Ninth Schedule into which legislation could be put and made immune from judicial review. Over time, over 280 Acts and Regulations have been put in the Ninth Schedule — a majority related to land reform but others on diverse areas ranging from mining to foreign exchange to monopolies — leading a commentator to label it a constitutional “dustbin”.

Since that first tweaking of the Constitution, amendments have flowed thick and fast. In subsequent years there have been several crucial amendments impacting creation of new states, electoral laws and federalism. But perhaps the one that has scarred, and scared, the nation the most was the infamous Forty-second Amendment rammed through during the Emergency. The amendment building on two earlier ones – the Twenty-fourth and the Twenty-fifth – empowered Parliament to make laws infringing on the Fundamental Rights and put curbs on the courts over the custody of the Constitution.

The Forty-second Amendment had inserted two clauses in Article 368 specifying that amendments made under this article could not be challenged in court and that there would be no limitation on the power of Parliament to amend the Constitution. It also gave the Directive Principles of the Constitution primacy over Fundamental Rights. In keeping with this sentiment, the words ‘secular’ and ‘socialist’ were inserted in the Preamble of the Constitution. When the Forty-second Amendment was introduced in Parliament, law minister H R Gokhale tried to sweeten it by saying, “If at all the powers [of Parliament] have been to a certain extent widened, they are not taken away in all matters in which really judicial action is justified.”

The future course of events would, however, show the resilience of Indian democracy. Once Indira Gandhi was voted out of power, the Janata government undid much of the harm done during the Emerging by bringing in the Forty-third and Forty-fourth amendments. The story of amendments and the turf battle between Parliament and the courts for custody of the Constitution is a continuing one. One of the more recent amendments – the Ninety-third in 2006 – which enforced reservation in unaided educational institutions came in the backdrop of a Supreme Court ruling putting a check on state regulation of admission procedures of private institutions.

The tension over who holds the key to the Constitution is going to remain so long as the power to amend is in the hands of Parliament and the courts have the authority of judicial review. This is true for older democracies such as the US too. Hence, political scientist Rajeev Bhargava points out, “We cannot treat the Constitution with sanctimonious reverence, too sacred to be touched, nor can we allow frivolous attempts to revise the Constitution every time a political deadlock occurs.” The Emergency showed the danger of the government of the day subverting the Constitution and its principles. But its aftermath also showed that reckless tampering would not go unchallenged. That is what makes the Constitution a touchstone for Indian democracy, however mixed the quality of our politics and leadership might have been since 1950.