INSAAF (Indian Social Awareness and Activism Forum)

USA : 808 Kinwest Pkwy Apt 74, Irving Tx , 75063, USA India : No 3 , Thindlu Main Road , Vidyaranyapura, Bengaluru 560097 Coordinators: - Arnab Ganguly : +91-9886641682 ; Niladri Das : +91-9811052770 Website: - www.insaafngo.blogspot.com ____________________________________________________________________________

Hon Min of Law and Justice, Shri Kapil Sibal,

Date: 24/July/2013

Sub: - Repeal the Irretrievable breakdown of Marriage Bill 2010 with immediate effect Dear Sir, It is baffling to contemplate that the GoM which consists of senior ministers most of whom have served as eminent lawyers in the past has jointly recommended a law as ultravires as the Marriage Law Amendment bill . The nation is outraged as this law in its current form is not only absurd but is also the final nail in the coffin for the sacrosanct religious institution of Hindu Marriage reducing it to mere contract with a 3 year term in which one party unfairly benefits and the other counts his losses. 1. The department related parliamentary standing committee on Personnel, Public Grievances, Law and Justice in the report titled Forty Fifth report on the Marriage Laws (amendment) bill, 2010 tabled in the Rajya Sabha on 1st march, 2011 recommended The Committee, accordingly, recommends the Government to make adequate provisions in the Matrimonial Law to ensure that the courts, while adjudicating on divorce petitions, also decide upon womens share in the matrimonial property while granting divorce so that they are not deprived of the assets/properties in which they have contributed during the continuance of marriage. 2. However notwithstanding the fact the above report was made after consultations with many stakeholders and eminent thinkers , Mr Salman Khurshid during his very brief tenure as Min of Law and Justice without any consultations or public review and very likely under immense pressure from a handful of womens groups suddenly added a set
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of amendments under clause 13F and 28D, which for no apparent reason included property acquired by the husband before and after the marriage and also the ancestral property in a divorce settlement ! Also interestingly this was made applicable to Hindu marriages and not for other religions. 3. The argument that this law will benefit poor women is completely false and planted to mislead the public. Over 75% of India lives at less than $2/day and in such cases the family cannot make even two square meals a day leave alone acquiring property. Under this law and in such desperate conditions what property if any will a woman stand to get ? Will the husband give half of his plough and oxen(in villages) or half of his autorickshaw( in cities) ? This law is squarely aimed at families in the rich, upper and middle class where women are educated, capable, working and the husband and his families own movable and immovable properties like flats, bank deposits, automobiles and household articles. Claiming that providing free property to an elite, educated, capable and in most cases a working woman without any contribution whatsoever is women empowerment is as absurd an argument as the law itself. 4. The Hindu marriage is not a contract but is sacrosanct with deep rooted religious beliefs. The UPA Governments determination to give divorced women a share in the inherited and inheritable property of their ex-husbands is a direct and blatant assault on the Hindu family and the sanctity of a sacrosanct marriage, as it incentivizes divorce by giving women a sense of false empowerment that comes from unearned wealth appropriated by unjust means. It discriminates against the male gender by assuming that all divorce stems from the fault of men, another violation of Constitutional provisions. Thirdly, it opens a third party parents and grandparents to expropriation of their wealth when they are not a party to the divorce. 5. As per the Hindu succession amendment act 2005 the daughter has been provided with a right of equal inheritance at par with a son from her ancestral and parental property. If every woman in India gets an equal share in her paternal and ancestral property at par with her brothers, would the question of any women not owing property ever arise? If parents do not give daughters a part and parcel of their own property as has been enshrined in the law, then that must be enforced first! Husbands and their families cannot be penalized for the crime committed by the womans parents of alienating her from her rightful share of ancestral and parental property.

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6. If the Hindu marriage is to be indeed reduced to a contract with a 3 year tenure after which it can be nullified with one party losing and the other benefitting unjustly without any fault, then prenuptials contracts must also be legitimized with immediate effect so that the no party can unfairly profit from the marriage through unjust means. 7. The law allows the wifes to claim, unopposed a major share of the husbands other movable property too, whether acquired before or after the marriage. Strangely this Bill preaches that, it would be more profitable for women to break their family, rather than staying in it, as the married woman who stays in marriage, will not get share of property of her husband. She would get the share ONLY if she breaks her family. Such laws will increase in family disharmony, and a corresponding increase in crime rate including spousal murders. 8. When the husband files for a divorce the proposed law empowers the wife to oppose the divorce at any point of time based on her financial hardship. However if the wife has filed for divorce, the law once again shockingly restrains the husband from opposing the divorce under any grounds whatsoever. Poor, Paralyzed, Handicapped husbands and husbands who have fallen out of love will have no way to defend their divorces should the wife choose to unfairly leave the marriage. Is this constitutional under Article 14 ? 9. While the western divorce laws divide marital assets equitably amongst partners based on multiple factors like duration of marriage, contribution towards marriage and behavior of the partners, the government under pressure from womens groups has introduced another severely biased amendment by which only wives will be legally empowered to annex 50% of the husbands property that has been acquired both before and after the marriage. The proposed law is completely silent on the property of the wife and makes no mention of how the assets will be divided based on duration, contribution and behavior during the marriage of either partners. 10. Media has reported on numerous occasions stated that the Government is under severe pressure from a handful of aggressive womens groups and is introducing ultravires amendments because of this illegal pressure. No sane legally educated and balanced individual would ever approve the ultravires and highly anti husband amendments that have been inserted into the bill. Noted Social worker Madhu Kishwar

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has trashed this law stating that the solution proposed in this bill and championed by aggressive womens groups is worse than the problem itself. 11. The Chinese Supreme Court greatly concerned on the severe misuse of the Matrimonial property act by women in China ruled in 2011 that whosever buys the house in a marriage gets to keep it in the event of a divorce, effectively nullifying the law. [2] Given the similar socioeconomic and materialistic aspirations of the populations of India and China the government needs to understand that biased and anti-husband property annexation laws do not work in developing countries and only leads to a parallel extortion industry. Why is India keen on making the same mistake which China suffered for and then just corrected? 12. Providing such ultravires sections increases and promotes greed amongst people who desire unfair gains. The same has been seen with section IPC 498a and DV Act under which millions of false cases are filled annually chocking the judicial dockets. In fact a major drive in the judicial reform bill is to eliminate matrimonial cases most of which are nothing more than malicious litigation. Biased clauses and unfairness in the law will lead to appeals in higher courts and most cases will reach the Supreme Court. By incentivizing divorce greatly this absurd act will at least quadruple the number of pending contested matrimonial cases in all courts thereby hastening the process of total judicial collapse of the country.

List of Proposed Amendments

Current Section :13D(1) Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 13C, she may oppose the grant of decree on ground that the dissolution of the marriage will result in grave financial hardship to her and that in all circumstances be wrong to dissolve the marriage.. INSAAFs View and amendment: Right to oppose should be given to both parties .Amend the word wife and or husband in all places is to be replaced by the word "spouse". Current Section: 13F and 28D:( Special provisions relating to disposal of property in proceedings under 13C) Without prejudice to any customs or usage or any other law for the time being in force, in any proceeding under section 13C, at the time of passing
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of the degree , the court may on a petition made by wife order that the husband shall pay for her and children as defined in section 13E, as financial support such gross sum or share in the movable or immovable residential property towards settlement of property rights as the court may deem it to be just and equitable and any such payment shall be secured , if necessary , by change on the immovable residential property of the husbands. INSAAFs view and amendment A spouse of 2 years cannot have the same right to property as a spouse of 25 years. The word wife and husband to be replaced by spouse which as is followed all over the world. Either spouse should not have any right to property acquired before marriage , property division should be considered after the marriage has crossed a term of 10 years. Amendments to 13F and 28D: (Special provisions relating to disposal of property accrued during subsistence of marriage in proceedings under 13C) "Without prejudice to any customs or usage or any other law for the time being in force, in any proceeding under section 13C, at the time of passing of the degree , the court may on a petition made by "either spouse" order that the "other spouse" shall pay for "her/his" and children as defined in section 13E, as financial support such gross sum or share in the movable or immovable residential property towards settlement of property rights as the court may deem it to be just and equitable, "considering the duration of marriage" and any such payment shall be secured , if necessary , by change on the immovable residential property of the other party. For any claim each others spouses property, the minimum marriage duration should be considered as 10 years. Provision to close all pending litigation to reduce 3 crore case pendency and allowing bot spouses to oppose the divorce in financial hardship As per 13C(2), if a wife is separated for 3 years, she would most likely have already approached the court in most cases simply to settle scores with misuse of 498a and DV act. Additionally there are other provisions of maintenance HMA 24/25, CrPC 125, DV Act.Rampant misuse of these sections have been observed many times even by the Honble SC of India. The Divorce degree should be awarded only when all other cases against each others had been quashed or withdrawn and in future no cases will be filed against each other spouse. This is severely reduce the judicial pendency problem.
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INSAAFs view and amendment 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 and that it would in all the circumstances be wrong to dissolve the marriage. All cases pending, between the parties would also be quashed before granting divorce under Section 13C..All case like 498A, DV Act and other litigations should be quashed before the grant of decree.

List of actionable recommendations

1. STOP all progress on the property annexation law with immediate effect. Do not introduce this law in its present absurd form. 2. Form a larger national commission on this law with equal representations for the rights of the husband, wife, children and extended family members under the overall guidance of a retired Supreme Court judge to filter out ultravires sections. 3. To avoid needless litigation and judicial pendency create a simple and easy to apply formula on equitable property division and alimony like in the west. Example: Term of alimony in a childless marriage (if allowed) will be limited to 1/2 the length of the marriage in months. For a 1 year marriage the alimony (if approved) will be for a period of 6 months and no more. Property acquired jointly by the couple during the subsistence of the marriage to be partitioned after taking in account contribution, conduct and genuine need of the parties. 4. Alienating daughters from ancestral and parental property must be made a crime punishable under appropriate sections of law. This will ensure that most women get their rightful share of property from parents and ancestors just like sons. 5. Remove all references to Husband/Wife in the law and replace them with the word spouse. 6. Legalize prenuptial agreements before introducing this law.
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7. Introduce proper language in the bill to take into account parameters like duration of the marriage, children and behavior of the parties before property distribution is even considered. Create to the length of a marriage, which is a standard practice in the West where pre-nuptial contracts determine the compensation due to women according to the length a marriage survives. There is usually nothing for a marriage that does not last five years. Moreover, any sharing of assets must be based on property/wealth earned or created by the couple during the duration of the marriage only, and cannot legitimately extend to cover property/wealth created by either before marriage. 8. If pre-marital assets are to be brought into the division, then this must be genderneutral and a man married to a richer woman must get equal access to her and her familys wealth. Then, while the rights of children, if any, are undeniable, there is no case for alimony for working women. The courts are aware that there have been several cases of affluent working women giving up their jobs when the marriage broke down in order to claim robust alimony as the price of consenting to divorce. This trend will be reinforced under the present proposed changes in divorce law, which will encourage women to take punitive action against their in-laws on the slightest pretext. 9. Introduce strong misuse clause on the same lines that was introduced on the Governments version of the Lokpal Bill. When the government fully aware of the chances of misuse of laws against government employees cares for their protection, why should the same protection not be extended to the public in other laws? 10. Remove all aggressive womens groups from law making process with immediate effect to preserve sanctity of law making process and judicial sensibility. Thanks, Yours Truly Arnab Ganguly

CC: The Honble Prime Minster of India ; The Honble President of India
[1] http://legalfighter.wordpress.com/2012/08/01/consolidate-media-coverage-about-indiademanding-rollback-of-marriage-amendment-bill/ [2] : http://www.telegraph.co.uk/news/worldnews/asia/china/8714097/China-tries-to- stopwomen-marrying-for-money-rather-than-love.html
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