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Suggestions on “Marriage Law (Amendment) Bill 2010 PDF Print E-mail
(6 Votes)
Written by CRISP   
To,
Shri K.P. Singh,
Director, Rajya Sabha Secretariat,
201, Second Floor,
Parliament House Annexe,
New Delhi-110001
Tel: 23034201, Fax: 23016784,

Sub: Suggestions on “Marriage Law (Amendment) Bill 2010” and request to depose to provide oral evidence

Honorable Members of the Committee,

We are writing this memorandum to you, in response to your call for feedback, comments and suggestions on “Marriage Law (Amendment) Bill 2010” and also humbly requesting an opportunity to present our views in person in front of the Honorable members of the committee.

About CRISP: We represent CRISP, an acronym for Children’s Right Initiative for Shared Parenting. CRISP is a registered, Non Governmental Organization (NGO) founded by a group of citizens, who recognize the serious effects of "parental alienation" on children due to single parent families on account of divorce or separation. CRISP also focuses on furthering the rights of a child to remain connected with both parents. While most NGOs pertaining to children deal with issues related to child labor, education, etc., we deal with issues related to unquestionable right of children to be cared for by both biological parents.

CRISP conducts regular press conferences and Dharnas on shared parenting and misuse of gender biased Laws.  

The Marriage Law Amendment Bill is just another gender biased law open to massive misuse. This Bill does not care that a child would be forced to be brought up in a broken family, and a father would not have any legal right, even to save his own marriage, under this Bill, even for the sake of his own child.

The Marriage Laws (Amendment) Bill, 2010, makes two totally vague, unscientific and misplaced assumptions.

The Bill falsely assumes that the husband will exploit the irretrievable breakdown clause and desert his wife. It ignores the fact that the wife in many cases today is the cause of marital discord - in other words irrespective of the fact on who is petitioning for the divorce, it the husband who is assumed to be one guilty of breaking the marriage, and relief – including child custody - can be claimed unconditionally only by the wife and is granted to her by the Law, in practice, even if not in statute. So long as this is the case, the proposed legislation will invariably decrease the odds of a settlement, and greatly increase the backlog of litigation, in whose name it is ostensibly being enacted. The double irony is that this legislation, if passed, will greatly harm the children of India, while chasing the mirage of reducing case-backlog in the Courts

The Bill also falsely assumes that financial hardship can only be faced by the wife and ignores the fact that financial hardship is also be faced by the husband in a number of cases which might lead to his wife seeking a divorce. It is evident from recent judgments that it is not uncommon for divorcing wives to extort money from their husbands, even though they are financially well-off, using children as a bargaining chip.

Create gender neutral shared child custody and parenting laws FIRST

Speaking on Father’s Day two years back, Barack Obama famously said that “any fool can have a child. That doesn’t make you a father. It’s the courage to raise a child that makes you a father”. True. But I have often times wondered what is it that fathers lack that reflects the cavalier attitude so many women — as well as the Indian judiciary — show about paternal involvement in the child’s life and parenting. A father who loves his child, is professionally qualified, and has the financial means to care for his child, should be as good as the mother in raising the child.

Certain rhetorical concepts like ‘paramount interest’ and “the best interests of the child” have come to dominate judicial pronouncements and decisions without there being a challenge to the basis of such vague, but worthy sounding, notions and platitudes. The uncaring and partisan orders and judgments that the Indian Judges deliver, sometimes by imposing their morally reprehensible and legally untenable notions of reconciliation on divorced couples, smack not just of condescension but also hold fathers guilty, as if they have committed some abominable crime just by being fathers.

To add insult to injury, the divorced husband faces the prospect of being separated from his children, under the maternal presumption of child custody, which case law in India sanctimoniously reinforces without scientific basis.

Implicit in Indian court orders arising out of matrimonial/divorce issues is ‘father knows least’ and that the child of divorced parents can grow up best in the mother’s care. It is my sense — and contention — that judges are not just biased in favour of mothers but, on most occasions, play to the gallery, as though women as a category are a constituency that must be appeased and pampered so they could win their promotional laurels in the judicial hierarchy and society at large. Justice is sacrificed on the altar of gender rights and politics.

In India, the maternal presumption of custody is the subtext that accompanies divorce judgments– and this evil has the added effect of separating the child from the father, for good, with crumbs under the rubric of “visitation”, all in the name of “paramount” importance of the child. From being a full-time father, he suddenly becomes a “visitor”, an outsider, who can catch an occasional “glimpse” of his child, his own flesh and blood.

Further, social science research in countries like the US and UK with liberal divorce laws has shown that expectations of being granted sole custody of the children, rather than cruelty or desertion, motivate women to file for divorce, and this was the primary reason for such a high divorce rate in these countries. In cases where the wife is professionally qualified, and fully able to support herself, she can walk out of a marriage with impunity knowing full well that the Law will grant her sole custody of the child. Placing absolute power, in the hands of the wife, - as in every other sphere of life - will corrupt absolutely.

Recognizing that the child is by far the most important intangible asset within a marriage – far more valuable than tangible financial assets - these western countries have taken care to simultaneously legitimize the concept of joint custody – both in statute, as well as in interpretation - alongside irretrievable breakdown. Joint custody implies equal (or near equal parenting time), and equal decision making authority on important matters concerning the child’s welfare.

These liberal democracies have understood that although it is expedient to separate divorce and custody as independent legal concepts in the clinical ambiance of the Court, in real-life, divorce and custody are tightly intertwined and has far-reaching impact on the life of the child as well as the parent. When divorce happens, custody invariably becomes the central issue because it is unnatural for the child to be separated from its parent. Therefore these countries have ensured that divorce is not liberalized without simultaneous reform in child custody laws by enshrining joint custody as a presumption in Law, especially when either parent is fully capable of raising the child - in keeping with the paramount importance to the child.

This humane concept has not yet dawned in India, where the archaic and conservative, maternal presumption for child custody continues to hold sway even as society rapidly modernizes. This important check - one that acknowledges, legitimizes, as well as safeguards, the equal relationship of the child to both parents, at a time when the child - the greatest victim of divorce - cannot speak for itself, is notably, absent in the proposed bill , which liberalizes divorce but is otherwise silent about child custody and parity in parental rights. This in itself suggests that the drafters of the bill, having not experienced divorce themselves, are blind to its damaging side-effects. This omission shows how naively the bill has been drafted – and what a recipe for disaster it will be without checks and balances to safeguard the child’s relationship with the parents, especially the father.  There is only one childhood – and time lost with a parent is gone forever.  The proposed law trivially focuses on costs, but ignores far more significant opportunity costs.

Clearly, the motivation to stay within a marriage changes dramatically reduces under an irretrievable breakdown of marriage divorce framework and same will affect child custody. To mitigate the worst effects of these distortions on children, 35 states in the United States have found it necessary to introduce a strong presumption of gender-neutral shared custody and parenting laws, as well as gender-neutral alimony and child-support laws. There is a now a large body of Case Law on Joint Custody. In a Landmark judgment from the United States , KENTUCKY: Chalupa v. Chalupa, Kentucky Court of Appeals, No. 90-CA-001145-MR; (May 1, 1992)., Judge Schroder, wrote for the majority:

“A divorce from a spouse is not a divorce from their children, nor should custody decisions be used as a punishment. Joint custody can benefit the children, the divorced parents, and society in general by having both parents involved in the children's upbringing.... The difficult and delicate nature of deciding what is in the best interest of the child leads this Court to interpret the child's best interest as requiring a trial court to consider joint custody first, before the more traumatic sole custody. In finding a preference for joint custody is in the best interest of the child, even in a bitter divorce, the court is encouraging the parents to cooperate with each other and to stay on their best behavior. Joint custody can be modified if a party is acting in bad faith or is uncooperative. The trial court at any time can review joint custody and if a party is being unreasonable, modify the custody to sole custody in favor of the reasonable parent. Surely, with the stakes so high, there would be more cooperation which leads to the child's best interest, the parents' best interest, fewer court appearances and judicial economy. Starting out with sole custody would deprive one parent of the vital input.”

A similar landmark judgment was passed in GEORGIA: Court of Appeals of Georgia, Case No. A93A0698, 7/2/93 IN the INTEREST of A.R.B., a child:

In a unanimous opinion, presiding Judge Dorothy T. Beasley stated: “Although the dispute is symbolized by a 'versus' which signifies two adverse parties at opposite poles of a line, there is in fact a third party whose interests and rights make of the line a triangle. That person, the child who is not an official party to the lawsuit but whose wellbeing is in the eye of the controversy, has a right to shared parenting when both are equally suited to provide it. Inherent in the express public policy is a recognition of the child's right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents' wisdom, judgment and experience. The child does not forfeit these rights when the parents divorce.”

These liberal democracies even go so far as to ensure that Grandparents have visitation rights to ensure that a custodial parent cannot erase them out of their grandchildren’s lives. Unlike India, they are also signatories to the Hague Convention that ensures that a divorcing spouse cannot go “forum shopping” to a favourable jurisdiction like India to take shelter under the glacially slow judiciary and severely anti husband laws, just because they were married under the “Hindu Marriage Act”. As India globalizes, this is another serious serious lacuna considering the increasing number of NRI divorces that clog our Family Courts today.

None of these checks and balances exists in the canon of Indian Family Law. Notably, Indian Family Law does not even pretend to operate under gender-neutral presumptions and the proposed legislation instead of redressing this, re-inforces it. The child-support responsibility falls disproportionately on the father, as does alimony on the husband (even if the wife is more qualified and earns more, which is becoming more common in India with dual-career couples). Similarly, child custody of a minor is rarely, if ever, granted to the father. Finally, the father is almost always the primary legal guardian of the Child. Even the terminology in the Hindu Marriage Act is not gender-neutral: it refers to the rights and obligations of the “the husband” and “the wife”, rather than “the spouse”.

If one spouse can orchestrate a breakdown (this is easy to do by simply moving out of the matrimonial home into the parent’s house, no-one can compel them to live in the matrimonial home) and unilaterally terminate a marriage this ground, it necessarily follows that the Family Laws governing shared parenting, child-support, alimony, and grandparent’s visitation rights must also be simultaneously overhauled. These laws must ensure that a divorcing wife cannot take advantage of an irretrievable breakdown ground law, with the certainty that she will be awarded sole custody, to financially and emotionally exploit other equally-legitimate stakeholders in a child’s life. The laws must also ensure that one spouse cannot walk away the tangible and intangible assets acquired during the marriage in a winner-take-all contest. This of course, includes the child.

The glacial, idiosyncratic, wheels of the Indian Judiciary all but guarantee that fathers are severely discriminated against once this laws turns into existence. As regards the executive branch’s track record in enforcing visitation and child-support, the less said about it, the better.

The marriage law amendment bill by providing the wife with all the control in a divorce case will only help in alienating fathers from their children. It will most certainly lead to increased litigation and the case backlog in the Family Courts in the country will increase far beyond what it is today. The proposed legislation is full of loopholes and is an invitation for abuse. Case backlog will decrease only when real Justice is meted out, in consonance with a progressive and humane statute that does not overtly discriminate against the husband or the child who cannot speak for itself.

False 498a and DV cases will continue to run even after divorce.

This bill will reward the wife with the divorce while condemning lakhs of innocent mothers and sisters the torture of a criminal trial in Indian courts in 498a and DV cases since it does not mandate the closure of these matrimonial cases at the time of divorce? The Bill essentially grants freedom and happiness to wives through a divorce but is totally silent on how the false and frivolous cases that are filed by wives be dealt with, even when the wife gets the divorce and happily remarries? Right now during a mutual divorce all the 498a and DV cases are normally quashed so that the families on both sides can part peacefully. The present draft of the bill aims to take away this resort too as the wife would now simply go away with a unilateral divorce, with the pending 498a and DV case running for years, which the wives normally do not even care to attend. We would like to reiterate the government facts that over 90% of all 498a are false and over 80% of all DV cases are filed with malicious intentions although the government continues to downplay the same.

The Law Commission’s 71st Report from where this recommendation was copied was drafted way back in 1978, when biased laws like 498a and DV Act were not in existence which were enforced only in 1983 and 2006. Hence Law Commission had not considered quashing of such cases against husband and his families as a precondition at that time, while granting divorce under Irretrievable Breakdown of Marriage.

Only by quashing all ancillary cases (such as custody, maintenance, guardianship, etc.) between the husband and wife – to the satisfaction of both parties - before granting divorces under Irretrievable Breakdown ground, would it be possible reduce the crores of pending cases in courts and will provide relief to crores of aged mothers and sisters condemned to a lifetime of judicial apathy in Indian courts due the Indian gender laws.

Moreover there would be cases where the husband is all in will to save his marriage, so that his child can have both parents, but under the present format of the Bill, the husband will not have any legal remedy to save his own marriage, even for the sake of his own child.

Article 15 (3) of the Constitution allows laws to be drafted for Women, but that does not mean it has to be done by openly violating Article 15 of the Constitution and that also by taking away all the basic rights of the husbands, even the right to defend him or save his own marriage, which is blatantly unconstitutional.

Emotional hardship needs to be emphasized

Unlike Family Courts Judges in advanced countries like the UK and the US, Family Court judges in India are utterly unaware of the psychological impact of divorce on children – they focus solely on superficial data like school report cards, shelter, and food, and their judgments are not based on modern scientific evidence. But the emotional damage that divorce inflicts on children far exceeds the physical wear and tear they suffer. As a case in point, in western countries with irretrievable breakdown as a divorce ground, a report by a qualified therapist on the child’s emotional condition, to give the court a scientific basis to determine child custody, is mandatory prior to granting divorce. But not so in India. The proposed legislation on irretrievable breakdown will certainly harm children in India, a country that fortunately, has been spared the single parent syndrome that afflicts every western country.

The parameters of “Financial hardship “ needs to be defined

Without a clear definition of the parameters that would be used to measure Financial Hardship, this amendment will not serve its purpose and will be used in the same way the badly drafted DV act and section 498a.

An Indian wife can currently claim Maintenance under all the provisions like CrPC 125, DV and HMA 24 thus overburdening the courts with duplicate petitions with an attempt to harass and increase the maintenance amounts. Without a clear and concise definition of the term financial hardship this section will be used only as another maintenance law and will be used to block a divorce from happening and will soon morph into a section of extortion.

Given the above reality the financial hardship conditions must be clearly spelled out so that neither of the parties is held to ransom under this condition. Tenure of the marriage and relative contribution of the parties in the marriage must be spelled out in the law itself otherwise spouses who have lived for less that 2 months will demand 2 crore for a divorce and will use this condition more like a weapon for extortion. Cases like this are not uncommon in our Family Courts today.

CRISP recommend the following:-

A Gender- neutral shared child custody and parenting law must be drafted on a scientific basis and implemented nationwide before this Marriage Law Amendment bill is even contemplated. The repercussion of the amendments of this will be that after the quick divorce the wife will have little interest in even attending court hearings thereby alienating the child forever from the hapless father.  Alternately, a separate section can be inserted explicitly stating that child custody cases must be resolved to the satisfaction of both the parties by mutual consent before divorce is granted on the ground of irretrievable breakdown.

Amend section 13D and making it gender neutral and allowing both the Husband and Wife to pray for ‘Financial & Emotional Hardship’.

Section 13D (1) should thus be reworded as under

The respondent to a petition for the dissolution of marriage by a decree of divorce under section 13C, may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to them as well as emotional hardship for the child and that it would in all the circumstances be wrong to dissolve the marriage. All cases pending, between the parties would also be quashed to the satisfaction of both parties before granting divorce under Section 13C”

Providing a clear & objective definition of “Financial Hardship’ so that this term is not interpreted in a wrong way and divorces are not sold by wives. All other maintenance cases filed by the wife, like Sec24, CrPC 125, DV etc, should not be allowed to continue, blocking the judicial dockets, as the relief sought in all of them, will also be available in this Bill only.

Creating objective parameters for calculating financial assistance like tenure of the marriage and relative sacrifice made by the parties in the marriage.

Include condition of finishing/quashing all litigation to the satisfaction of both parties before divorce is granted on the ground of irretrievable breakdown so that both parties can live peacefully and that judicial burden can be reduced.

Condition of closing child custody litigation by mutual consent or joint custody before granting divorce under Section 13C, so that rights of child to seek the involvement of both parents are not taken away from it.

Section 13 E should be reworded as under:

“The court shall not pass a decree of divorce under section 13C unless the court is satisfied that adequate provision for the visitation and joint custody and maintenance of children born out of the marriage has been made.”

 



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