Why divorce on mutual consent doesn't help women

By S. Murlidharan

As of now, a Hindu or one going for registered marriage can obtain divorce only with mutual consent that requires one to complete at least the first anniversary of the marriage besides allowing a period of at least six months. The intention behind this is to give a chance to allow negative passions to cool down and animosities lower between the couple seeking divorce.

The Marriage Laws (Amendment) Bill, 2013, passed by the Rajya Sabha, however, seeks to permit unilateral divorce by either the husband or the wife on the ground of irretrievable breakdown of marriage provided they have lived apart from each other for at least three years continuously after marriage, with temporary reunion, as it were, for a period not exceeding three months not vitiating the calculations.

In other words, even an off and on reunion, may be for old time’s sake to relive those memorable days overcoming the mutual hostilities for the nonce, will not disturb the meticulous three year separation calculus.

[caption id=“attachment_1124803” align=“alignleft” width=“380”] The post marital properties of the couples will be pooled and divided neatly into two halves, with each half going to the husband and wife.[/caption]

Though irretrievable breakdown criterion for divorce envisages a longer period of wedlock-three years as opposed to just a year under the mutual consent criterion-a lady would do well to plump for this course for two reasons. First the husband cannot fob her off by refusing to give his consent, and secondly, only this course could beget her a share of her husband’s property movable or immovable, acquired before the marriage or after except the inherited and inheritable properties.

To be sure, the Bill seeks to largely plump for the Texan model that vests the judge with the discretion to give a share or monetary equivalent thereof as he deems appropriate as opposed to the Californian model that vests the judge with no such discretion but mandates ruthless wielding of the surgeon’s scalpel, as it were, so as to give each a 50: 50 share of the couple’s post marital acquisitions. If she were to apply with mutual consent she would not get any indulgence from the judge as to share of her husband’s property but instead would continue to be fobbed off with a pittance-maintenance expenses.

One can always debate the models prevailing in the American states of Texas and California. The Californian model is fool proof insofar as it eschews in the bud the mischief potentials. There is no element of subjectivity. The post marital properties of the couples will be pooled and divided neatly into two halves, with each half going to the husband and wife.

But the Texan model which the Indian lawmakers seem to have made a pitch for has also got something to commend itself. It could address equitable issues what with the judge being vested with the power to divide the property equitably.

For example, the husband might be done in by the 50:50 regime if the scalpel were to be applied right down the middle if he had assiduously built up the family property by his untiring efforts. It could well be the other way round as well with the wife having toiled hard to build the family estate in which case she has every reason to be peeved if the idle husband were to pocket half the property without any efforts to show for it.

But then it is common knowledge that discretionary power has a corrupting influence, and there would also be a lurking suspicion on the part of the person losing out in the deal that the judge was bought off. The Californian model does not simply lend itself to this charge.

The India law makers have by and large plumped for the Texan model that would leave a sneaking suspicion by the one perceived to be losing out that the court was manipulated. This suspicion would appeal to the critics and the media given the atmosphere of pervasive, all-round, corruption prevailing in the country.

What is more, the lady has no guarantee that the court would grant her even a minuscule share of her ex-husband’s property what with the judge enjoying absolute discretion in this matter.

The Indian model has other lacks as well. It ropes into the divisible pool even the pre-marital properties accumulated by the husband. This is just plain unfair. The divisible pool should include only the properties accumulated or built up during the period of togetherness, i.e. when the marriage lasted.

Insistence on giving the wife a share could well result in the Indo-Pak partition being revisited on a smaller, microcosmic scale. A house may have to be crudely divided even though it might result in an unseemly partition just to placate the wife.

There is also a strident criticism from the men-folk that a property law should ideally be gender neutral especially when a Hindu woman is now a coparcener in Hindu undivided properties, rubbing shoulders with the more dominant male members of the family.

They contend that it is one thing to make the domestic violence law gender-specific given the fact that in the Indian society muscular males endowed with excessive testosterone are invariably the aggressors against the mute and submissive female, wife or a live-in partner, but quite another to make this a template for all women protection laws. In short, their gravamen is why not go Dutch, as it were, and divide the property pool of both the husband and wife acquired post marriage in an equitable manner like the state of Texas does.

The Bill warts and all nevertheless would be lapped up by ladies despite the longer biding time it involves before they can press the ground of irretrievable breakdown of marriage. Mutual consent was a mirage and it still could be under the new law in the making. Besides, mutual consent does not allow her even to dream of landing a share howsoever small of her ex-husband’s properties.