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  1. Reported by Jeevan Prakash Sharma in Hindustantimes.com on April 10, 2015 CAG report touches just the tip of the iceberg as crores flow out through land law loopholes A report released on March 25, 2015, by the Comptroller and Auditor General of India was widely reported in the media because of its reference to M/s Skylight Hospitality Private Limited (a company owned by Robert Vadra). One part of the report, titled Profits on sale of land, mentioned five companies, namely Skylight Hospitality Private Limited, Sun Star Builders Private Limited, Witness Pvt Housing Limited, Uppal Housing Pvt Ltd and Mark Builtech Pvt Ltd for selling “land for Rs. 267.47 crore they had purchased for Rs. 52.26 crore and earned a profit of Rs. 215.47 crore in such transactions”. According to CAG, these transactions deprived the state government of crores in revenues. What the CAG missed mentioning, however, was that hundreds of developers in Haryana were bypassing real estate rules and licence conditions to avoid paying the state government its share of profits. Realty rules require developers to keep 15% profit they made from a project and deposit the rest with the government. Legally, in Haryana, only a landowner can apply for a license to set up a colony. Land prices shoot up once such licenses are granted. To get a licence, government rules require that the owner “derive maximum net profit at the rate of 15% of the total project cost of development of a colony after making provisions of statutory taxes. In case the net profit exceeds 15% after completion of the project, the surplus amount shall either be deposited within two months in the State Government Treasury by the owner or he shall spend this money on further amenities/facilities in his colony for the benefit of the residents.” Bypassing rules is simple. Developer A plans a project and sells it to developer B without completing a project and making a huge profit as value of his land has appreciated after he acquires a licence. Since he has sold the project before completion, A does not comply with the licence provision of depositing extra profits with the government. And that’s not all. Some developers have floated subsidiaries. One company gets the licence on the basis of land it owns; it sells the land to another company at double the cost; another company does the construction work and reports that its profits have not exceeded 15%. However, calculations of the profits made by one developer through subsidiaries paint a different picture – and show that one entity makes profits that are double and even triple the total cost of the project. An official of the Department of Town and Country Planning of Haryana, on conditions of anonymity, says ”Often, a memorandum of understanding (MoU) or collaborative agreement is signed between two different companies to bypass rules. “A company which gets the license on the basis of ownership of land can’t transfer or sell the license to any other company. So it sells the land to another company (which can also be its subsidiary) by signing an MoU or collaborative agreement. As per the agreement, the second company pays the total land cost to the first company but gets construction and marketing rights to the whole project. The first company earns a huge profit as land is the most expensive component of any project and the second company reports it has failed to make profits in excess of 15%. This is one of the instances. In many cases, a real estate firm has floated many subsidiary firms to evade the 15% profit clause.” This is why the CAG in its report has recommended that “A proper mechanism needs to be put in place to ensure that in cases where land has been sold without completion of the project, net profit beyond 15% of the total cost as such sale should be deposited with the state government.” “Procedures for entertaining applications for developing commercial colonies, criteria for determining area norms, timelines for completion of projects etc need to be clearly spelt out. There is an urgent need to make the whole process transparent and clear. Further, licenses should only be allotted to genuine developers after a careful and proper scrutiny of the applications,” the report adds. Realty experts say that Haryana is the only state in which there is a provision under which a developer can’t make more than 15% profit as the state government thinks housing is not a money-making business. The 15% profit clause applies to both residential as well as commercial construction. Keeping the profits – how developers do it The CAG report tabled in the Haryana Assembly last week highlighted losses to the state exchequer through dubious land deals, but the state government needs to urgently address the problem of most developers bypassing rules requiring them to deposit with the state treasury the extra profits they make over and above 15% from housing projects. For instance, developers are allowed to get their licenses renewed every five years and as many times as possible. Also, there is no time limit for completion of the project and for acquiring a completion certificate. As a result, projects which were started in the 80s did not get completion certificates till 2011. “Developers normally take partial completion certificates, and not the full and final completion certificate, for which a final audit report has to be submitted. Some developers have submitted the annual audit report but a majority has not done so. However, the actual profit can be assessed only through a final audit report,” says Sanjay Sharma, a Gurgaon-based property consultant. Says Ashish Kaul, an RTI (right to information) activist, “As per an RTI reply, no developer has taken any completion certificate till 2011. If he does so then he would have to submit a full and final audit report to the Department of Town and Country Planning, revealing his total earnings.” In March 2011, the previous Haryana government had amended the Haryana Development and Regulation of Urban Areas Act, 1975, allegedly giving developers an escape route from the 15% profit clause. The developer now has the option to either deposit something called an ‘infrastructure augmentation charge’ of just Rs. 20 lakh per acre as applicable from time to time at any stage before the grant of completion certificate and get exemption from the 15% profit restriction. Saurabh Prakash, a Delhi High Court lawyer and a resident of a group housing project in Gurgaon, says “What is surprising is that the maximum amount for `20 lakh per acre for the infrastructure augmentation charge is applicable with retrospective effect. Under the amended provision, developers can now pay Rs. 20 lakh and not be held accountable for profits they have made over and above 15% of the construction cost of the project.” To find out how many developers took completion certificates after March 2011, Kaul filed an RTI application for the Department of Town and Country Planning, Haryana, but did not get a satisfactory response. “The provision has been made to help developers get completion certificates without depositing profits over 15%. This was done by the previous Hooda government and we expect the BJP government to set aside the amendment in the interest of the homebuyers and the state,” says Kaul.
  2. akhilesh yadav

    You can’t lie under right to service law

    MUMBAI: Not only officials, but also citizens may get punished under the proposed Right to Services Act. The pertinent bill, which was introduced by the state government in the assembly on Thursday, suggests action against a citizen if false and frivolous information or documents are submitted to obtain public services. But penalties can be imposed and disciplinary action against errant officials can be ordered only by a state-level officer after a two-tier hearing process involving the first and second appellate authorities. For this, the bill proposes to constitute a State Commission for Right to Services and designate some officials in the departments concerned as first and second appellate authorities on the lines of a structure that works under the Right to Information (RTI) Act. Read at: You can?t lie under right to service law - The Times of India
  3. Referring to the brutal murder of an RTI workerin Masaurhi (Patna district), leader of opposition in legislativeassembly, Nand Kishore Yadav, today demanded an impartial inquiryinto the incident and stern punishment to criminals involved in thecrime. Read at: BJP condemns slide in law and order, RTI worker's murder
  4. NEW DELHI: Lok Sabha and Rajya Sabha secretariats and Delhi High Court are among some prominent offices which have not filed mandatory annual reports of compliance of RTI Act even once since the transparency law was enacted nine years ago, according to an advocacy group. Read at: Lok Sabha and Rajya Sabha secretariats, Delhi High Court not filing RTI compliance reports: Study - The Economic Times
  5. The reported move by Nagpur Municipal Corporation (NMC) to shift stray dogs to Bhandewadi Shelter for Animal Birth Control (ABC) surgeries created a stir and forced an RTI activist to shoot a hard-hitting letter to Municipal Commissioner. Apart from objection raised by People for Animals (PFA), which is informally running the shelter since more than three years now, the RTI activist has charged the NMC of mocking at law and the law makers as well. Read more at: RTI activist charges NMC of mocking at law & law makers over move on stray dogs - Nagpur Today : Nagpur News
  6. Recently i applied to have the bye law snd tbe amendments moved from time to time by the KARNATAKA LINGAYAT EDUCATION Institution in Karnataka. I applied seeking the information to the deupty director of vo operative soceity, belgaum (regional office), but the office had forwarded to the district registrar belgaum. The office had replied in their letter to confirm the registration no. and the year of registration. I searched in theie website to found the year in which it started. But i couldn't find the reg. No. Kindly help to have the bye law of the KLE institution. Thanks, vujae kirthi
  7. BHOPAL: The Madhya Pradesh BJP government may introduce an Anti-Harassment Bill in the next session of the state assembly to "curb blackmailers from continuously disrupting developmental works and wasting the time of law courts." .......................... No sooner was this decision passed by the council of ministers than the Congress decided to take the issue to court justifying it would be a dangerous weapon meant "to gag whistle-blowers, Opposition members and RTI activism." "We will fight this Bill in the streets and in the law courts," said chief state Congress spokesman K.K.Mishra. "This is a tyrannical bill being introduced to save a corrupt government. It is undemocratic, against Constitutional provisions and violation of human rights. The RTI Act becomes ineffective if such a Bill becomes a law." Read at: MP to enact law against disruptive activism - The Times of India
  8. [h=1]Bring new law in 6 months for protection of witnesses: HC tells Maharashtra govt[/h] Mumbai: The Bombay High Court Tuesday directed the Maharashtra government to frame a new law within six months for protection of witnesses and also consider bringing whistleblowers and RTI activists under its purview. The government had last week informed the High Court that instead of a policy, it would come out with a law to provide protection to witnesses in sensitive cases. A draft of the proposed law was also submitted to the court. The issue of protection to witnesses, whistleblowers and activists was taken up suo moto (on its own) by the court after the murder of RTI activist Satish Shetty. The court was today informed that a committee has been formed to look into the issue and a law for the protection of witnesses would be enacted soon. Amicus curie (appointed to assist the court) Dinyar Madon, however, submitted that the new Maharashtra Witness Protection Act will not provide protection to whistleblowers and activists and may give cover only to witnesses in sensitive cases. A division bench of Justices A S Oka and A K Menon then asked the government to consider including whistleblowers and activists also under the purview of new law. The court directed the government to enact the new law within six months. In October 2014, the High Court, while ordering the government to frame a fresh policy, had also directed that protection should be provided immediately to whistleblowers and witnesses even during the investigation stage, if such a person makes a request for protection. Read More: Bring new law in 6 months for protection of witnesses: HC tells Maharashtra govt | Zee News
  9. [h=1]Law panel to Modi Govt: Bribery for 'good intention' should not be considered a crime[/h] New Delhi, Feb 17: Prime Minister Narendra Modi, throughout his electioneering, sought votes to curb widespread corruption and bribery in the government offices, but if reports are to be believed then Law Commission has come up with a recommendation that might promote bribery. Bribery to be legalised in India? As per reports, suggesting amendments in the Prevention of Corruption Amendment Bill, 2013, the Law Commission wants to decriminalisation of bribery 'if taken for a right cause'. That means, the law panel has suggested the government to not to penalise a government employee if he is caught seeking bribe for a good cause. For this, the panel has come up with a justification that Indian employees do not seek bribe only for their personal interests, infact bribe here is taken to get some of the work done on time. If this recommendation is accepted then only those public servants would be punished who misused their office by taking bribe. It must be noted that taking money or favours to get the work done is legal in several countries, there it is termed as 'facilitation fee'. A person is free to pay some extra money to get his/her work done quickly. With India bidding big ticket investments, the Law Commission, last week, recommended mandatory norms by government for commercial organisations to prevent bribery. Recommending amendments to the bill, the law panel proposed introducing a "statutory obligation" on the government to publish guidance about the procedures that commercial organisations can take to put in place "adequate systems" to prevent bribery to public servants. It said in Section 9, a new sub-clause can be added to make it clear that "the central government shall prescribe and publish guidelines about the adequate procedures, which can be put in place by commercial organisations to prevent persons associated with them from bribing any person, being or expecting to be, a public servant". It said the guidelines shall be prescribed and published by the Centre "after following a consultation process in which the views of all the interested stakeholders are obtained". Section 10 of the bill pending in the Rajya Sabha extends the liability of the commercial organisation to every person who is in charge of and is responsible to the organisation for the conduct of its business through a deeming provision. The panel in its latest report submitted to the Law Ministry has also recommended amending Section 10. The revised Section 10 now states that if an offence by a commercial organisation is proved to have been committed with the consent or connivance of any director, manager, secretary or other officer of the commercial organisation, then such person shall be guilty of the offence and will be liable to be proceeded against and punishable with imprisonment which shall not be less than three years but which may extend to seven years. OneIndia News (With inputs from PTI) Read More: Law panel to Modi Govt: Bribery for good intention should not be considered a crime - Oneindia
  10. There was a JS (Law) in the CIC - Akash Deep Chakravarty. He had got into several problems with various RTI activists (including myself) and was actually caught by me for giving "misleading legal" advice to the Chief Information Commissioner and also for not revealing the entire judgment to the CIC. After a long and hard battle by Mr R K Jain, his extensions in CIC were regularly rejected by DoPT. He moved court and lost. He was sent to Agartala. From there he was trying to come back to DERC as Executive Director (Legal) but thankfully it was found that he had applied for the job illegally. He approached Delhi HC and the single judge bench hauled him up for hiding facts. Now, his LPA has also been dismissed with the Judges again hauling him up for not having clean hands. It seems such people never change. Full judgment of Delhi HC can be read here: Aakash Deep vs Union Of India & Anr. on 20 February, 2015 ================================== My question: If such are the people who are appointed in CIC, then there is there any hope for RTI ?
  11. Ram Kulkarni

    RTI for Abortion Law

    Hello, Where shud I put application for RTI about abortion Law?
  12. The cabinet has cleared the bill to protect whistleblowers and punish those exposing identity of people disclosing information. The proposed legislation, Public Interest Disclosure and Protection to Persons Making The Disclosure Bill, 2010 provides the Central Vigilance Commission powers of a civil court to hand down harsh penalty to people revealing identity of whistleblowers. The CVC will be empowered to take action against those who reveal the identity of whistle-blowers or those who threaten the whistleblowers while those who make frivolous complaints will also be liable to punishment. As media reports, that the killing of whistleblowers Manjunath Shanmugam and Sayyendra Dubey and many Right to Information activists by anti-social and vested interests has promoted the government to draft the Bill. Read the news here: http://www.rtiindia.org/forum/content/203-saving-rti-activist-cabinet-clears-whistleblower-protection-bill.html http://www.rtiindia.org/forum/57545-govt-introduce-bill-protect-whistleblowers.html How will this bill when it becomes the law protect RTI Activists? Will this Law really fuel Activism and bring down corruption? Are there chances of misuse of this Law under 'Frivolous complaint'? What are your opinion?
  13. Hi, I am the resident of mumbai, last year we got possession of our flats our building went into the redevelopment projects we are facing many problems in our room like leakage,no support under the hall window,door doesn't lock properly several others we have given the written application to the society but we haven't got any reply society has started charging the maintenance from june 2010 but we haven't paid they have started charging us the fine we went to BMC they have took the tax we paid to them for the period of july 2010-august 2011 Are we supposed to pay to our society also I would like to know do society allowed to charged fine on the maintenance we have lots many complaints regarding the society but they are ot paying the attention they are giving us the letter if we don't pay the maintenance they will cut water supply , electricity supply also can anyone guide us for the same what we need to do for the same
  14. Hi, I had joined an organisation in Jan 2011 . My salary as per appointment letter was to be credited every 7th of the month . But after joining the organsiation came to know it was not so and nobody got salary on time. The Jan salary i got in the end of Feb2011 after repeated followups. Same happened with Feb salary , i had to follow up but as dint recieve the same till March 15th finally walked out of the job on March 16th . I had gone to the HO of my office on March 16th inquiring for my march salary but she dint have an answer which finally made me walk out of the job. Today the company is aksing me the recovery amount for not giving 2 months notice period. Kindly advise ..
  15. Hello, I am doing some research work in Hamburg, Germany. I need data on judicial system in India like the number of courts (including district courts), number of cases filed, disposed and pending in courts of India state wise. Also, if possible the number of computers in each court. Such information is not available on the internet. So I thought I might ask for them using RTI. Kindly tell me who should I ask for this information. Do I need to write to the Union Law ministry or to every state government? Also, is it possible to get this information in Hamburg? There is an Indian consulate here. This is the first time I am using RTI, so do not know how to proceed with it. Thank You.
  16. jeet_nk

    Making a law

    Dear friends dont you all think that govt should make law as decided by the general people not decided by the govt. Or other politicians. Coz i think that they should make law what the general people want. Let take an example: "Suppose law on health insurance for all citizens should be made." We (general people) can pledge a sign and sent it the govt. And the president. The pledge must be signed by a minimum no. Of people say one lac. How about the idea.
  17. friends my friend(girl) who was forced to marry at age 17 has 1 child of 3yrs age now.now she is 20 yrs old and seeks divorce. she is in southern tamilnadu and no economic background. whom she have to contact now
  18. We go to the courts for justice and they give us next dates of hearing. Can we ask the Govt. through RTI that under which constitutional law they go on evading justice to its people? If yes please tell me the procedure in details.
  19. clickrajat

    Medical Records

    If a patient asks for disclosure of his/her medical records, is the doctor liable to provide the same? should the original document should be provided to the patient or a xerox? is it required to take a written request from the patient for the same?
  20. Hi, I am an Indian, interested where our country is progressing or regress into pre-independent feudalistic era. My home state, Andhrapradesh, is highly corrupt and no one seems to worry about the system. When there were murders, police did not even register the FIR with the magistrate due to political interference. Andhra did not implement police reforms and appointed a non-elected politician as a member to control law and order. Can any NGO take this matter seriously enough to get police reforms are implemented in all states without any delay and get crime investigation agency separated from political power? How can one use RTI t achieve the fundamental correction required in our society, i.e., restoration of the ability to live safely in a society and attain justice in a stipulated time? In other words, can we achieve constitutional amendments in law and order situation that is outdated to suite our needs through RTI?
  21. DIVORCE LAW AMENDMENT AS PER LAW COMMISSION’S RECOMMENDATION IN 2009 – NOT YET DONE Another case of :- JUSTICE DENAIED when JUSTICE DELAYED Groom: Aged about 40yrs, Bride: 41 yrs, Son: Aged about 12yrs PAST On or about 1984, I, at the age of 15 years proposed to a 16 year girl – and the story began. I forgot that I lost my father at the age of 11 years , had a sister aged 6 years and my widow mother. I had lots of responsibilities to carry out as the only son of my beloved father. In a romantic mood, I forgot the difference in financial status of the two families. The story could have been entirely different if the girl would have refused me then and there, but she accepted me. But her family was “matured” and they opposed it in every possible way. I had my first big exam (10+) just at door. In spite of broken heart I tried my best and got 70% in the exam. Thereafter I could realise the real state of affairs, as the girl became totally silent. But I wanted to meet the girl at least once and finally found her in July,1988, in her college,15 km away from her home. In between, the girl never informed me about her whereabouts. Again on that day the girl agreed to “CARRY ON” the romance for the time being. In 1994, myself got married after lots of inside drama from her family. Her father could never accept me “from heart” as an eligible husband of his daughter and he did a “FAVOUR” to us; by managing to get a job for her, in a school 65 km away from her in-law’s house, just a month before the said marriage. Meantime I managed to make a house with the proceeds received from LIC, obtained after my father’s death. At that time, I was looking after the “small” business left by my father. But her father could never rely on my financial condition and his daughter continued with the service by ferrying daily up and down 130 km. She used to stay very often at her father’s house (close to workplace). She conceived in 1995, but had a miscarriage, and she had two more miscarriages after that in two consecutive years. I lost the joy of being a FATHER and the doctors told specifically that all these miscarriages happened due to her daily strenuous journey . In between, I have decided to take up a job. And my wife finally decided to leave her job, her father also agreed (after some drama again) to the decision. And just after that she became the “proud mother” of our only son. But she could never forgive me for that decision, although she made her own decision always. I started feeling humiliated for the indirect responsibility for the cause of leaving her job. The misunderstanding began and it increased day after day. I concentrated on my job, and obtained recognition from my employer. I was earning enough to carry on my responsibilities. I built up another floor in the house, since my mother had a long desire for that. I performed my last pending duty by getting my sister married in 2006. I started realising slowly, that I am nothing but a moneymaking machine for my wife. Needless to say, in between, the marriage lost all its charm in all way. My wife became a “lady” by then and was reasonably satisfied with her monetary status, and I became a late 30’s gentleman and kept myself satisfied with my job with an understanding that for the sake of my son, we should stay together. But from 2007, she started taunting me even in front of my son. I became mentally broke. My health was broken, started suffering from IBS, BP etc. (diseases from tension and mental unrest) and started thinking about separation and divorce. I had to take sedative regularly. At the same time I was worried about my son’s future. We were sleeping in different rooms from 2008. My wife stopped using Sindoor from 2006. I really wanted to forget all her past begaviours as bad dreams, but I couldn’t. I love my job; it has given me my own identity and before the situation affects my job performance, I wanted to end it. I was in a dilemma till April 2009 (on the death anniversary of my father); when she humiliated me about my parents and myself with some nasty words (“you have some problem in your blood, that’s why I am worried about my son’s future staying with you”). I have finally decided for DIVORCE. Previously, she said many times that she would also prefer the mutual application for Divorce. But this time she disagreed and after discussing with her father, they demanded huge ransom money as “compensation”. She also told me that as divorce is inevitable, one of us should leave the house. I wanted to provide my son at least the same house after separation, which I felt necessary for my son’s upbringing. I shifted to a rented apartment near my place of work in July,2009. She was taking money (whatever needed) from me as usual and delaying the filing process for any separation, keeping the same humiliation process on. I agreed (also paid till date) to pay all necessary expenses for maintenance of my son and wife, including the maintenance for the house where they are still staying with my mother. After all this in 25 years, her father again failed to rely on me. Earlier, I had no money, so they hesitated to get myself married to her. But now, they do not know how much money to claim from me, to spoil me even after Divorce, and that is why they are hesitating to go for a mutual divorce. So I had no other alternative to file the divorce petition in September 2009. I know lots of odds will come from my mother and relatives, as divorce is still considered as a social taboo. Each marriage is between two individual – not between “Ideal Wife” and “Ideal Husband” . I am responsible for my job (doing it last 13 years) as well as my family. I belong to a social class and agree to pay any reasonable maintenance (the only sub clause was recommended as check measure for divorce for Irretrievable Break Down) as decided by the Honourable Court. Contest divorce itself is a very tough decision. Even in my professional life, people are not taking it easily. Still I want to take my own black spots, my failure in the marriage - to the public, at least to the people who matters; cant play hide and seek game anymore. I stopped myself several times; thinking about my son, but he should also better see one parent than parents without love or respect for each other. Perhaps by staying apart both of us can maintain a healthy relation with him. PRESENT [ Lots of incidents happened in between: - In October, I felt sad for my son (but nothing for my wife) and came to my old address. But the “drama” continued. I got seriously depressed after noticing my wife’s behavior. Actually she got much more “CRUEL”, and silently (sometime with abusive language in a very low voice) she started humiliating me. Finally, I went to a psychiatrist. I was suffering from a tremendous depression and trauma for my wife’s behavior. After being checked up by 2 more doctors, I am taking anti-depressant drugs since then. Recently (January, 2009) I got a “fit certificate” from Doctor, but still having medicines. In between, she forced to bring all household goods from my rented apartment and stopped to me sell the same, although some items (like fridge) were duplicated. I really got spellbound noticing her attitude. She forced me to shift to 1st floor leaving my mother on ground floor. On 1st floor we were sleeping in different rooms .Now I am again residing at my rented apartment. ] Now it’s already 5 months gone after my filing. The first date was in Dec 2009. On that day I just got another date. And on the next date also, I shall surely get just “another date.” Is not this the right (if not delayed already) time to address the problem associated with Indian Divorce Act itself? Please note, I am not the 1st to say this, the law commissions already felt this in 1971 and 2009 (reports enclosed). Both “seriously” recommended introducing THE IRRETRIEVABLE BREAK DOWN OF MARRIAGE as another ground for divorce. We have now a “Fault divorce” and mutual divorce. When my partner and me can’t agree on a less affecting thing like “mutual divorce” (which means to break the tie of marriage), how can we STAY TOGETHER in marriage thereafter? All of us know that, staying together (in any form) requires much more agreement between any two people than to stay apart. That means I have to request (or beg or buy) my wife to be free from marriage, just like a sentenced captive from the Jail. Judiciary indirectly being used as a tool to bargain terms for divorce, in cases like this. Yes, when there is legal battle between couple, who are staying separate over a year, the only motto can be to get a “good bargain” or to harass one spouse by mere non-cooperation. My wife now more “ cruel” in behaviour. She is fighting legally with me – that means she don’t have any ‘emotional” dependence on me. When we talk about our “old tradition of marriage” we often forget that, no “traditional” wife will come to court to keep or leave her marriage. I would like to mention another thing. My petition primarily based on “CRUELTY”, as the most suitable “available ground” for divorce. But one has to understand that fairer sex normally don’t act “cruel” by physical nature. Even in some cases “SILENCE” or “ABSENCE OF CORDIAL NATURE” between husband and wife can be cruelty of severe nature, which happened in my case. And when a person like me, who act as a Manager in a reputed company, files the divorce for wife’s cruelty, it can effect my professional reputation to a great extent. Actually it’s very much humiliating for me to file the petition and fight for that. It’s not explainable to anyone, but one who is in similar condition, can very well understand this. Broken marriage is not a crime and by the recommended amendment, divorce law can address that break with far less complexity. As we all know, nobody or nothing can compel a couple or any two people to live together. Present Divorce Law can delay (and make more bitter) the process of divorce, but can’t really change the direction in this scenario. Can the Judiciary ask me to point out very private part of my life like marriage? Is not this hampering my basic fundamental right as a citizen? When there is no such law for a “father & son” or “mother & son” relation to be in that tie for ever (although maintenance clause is there), why would be such gross disparity in case of marriage? Are later the more “NOBLE” or “MUST ON” relations than the earlier? Is institution of marriage a serious “offense”, which if I have done once, can’t be freed till my death? Is wedlock means deadlock? Now as an effect I have two options – EITHER to stay in my marriage forgetting about my own negative feelings compromising with my health and peace of mind OR To badmouth my son’s mother in the court to prove her fault to get rid of her. In both cases either my wife or I would be sufferer, not the Honurable Judiciary or the legislative body! Won’t the chances of any healthy relation would decrease or diminish just because of amount of tension created between us during the process, as more dates means more blames or more defense (which is also a part of attack mechanism)? Even the child would be indirectly sufferer for the bitterness between the parents as helpless witness of the whole event. Breaking up is a hard decision for anyone, but while doing, why we (in the process itself for its duration & nature) need to be nasty instead of peaceful? If a marriage can be done in a one-month notice period, why the divorce would be delayed for YEARS? I am referring to some very pertinent cases where Honourable Supreme Court of India understood the gravity of the circumstances and granted the decree of divorce by dissolving the marriage, sometimes even after the lower court’s verdict in an opposite direction. In most of the cases, petition filed against wife’s cruelty. Judiciary understood that delaying the process would only increase bitterness between the couple. Whenever we delay something, it affects. In this scenario its affecting unfortunate people like me. (1) N. G . Dastane Vs S. N. Dastane DATE OF JUDGMENT : 19/03/1975 BENCH: CHANDRACHUD, Y.V. GOSWAMI, P.K. UNTWALIA, N.L. CITATION: 1975 AIR 1534 1975 SCR (3) 967, 1975 SCC(2) 326CITATOR INFO : RF 1988 SC 121 (7,10) (2) SIRAJMOHMEDKHAN JANMOHAMADKHAN HAFIZUNNISA YASINKHAN & ANR DATE OF JUDGMENT14/09/1981 BENCH:FAZALALI, SYED MURTAZA BENCH:FAZALALI, SYED MURTAZA SEN, A.P. (J) CITATION: 1981 AIR 1972 1982 SCR (1) 695 1981 SCC (4) 250 1981 SCALE (3)1400 (3) Shobha Rani Vs Madhukar Reddi DATE OF JUDGMENT12/11/1987 BENCH:SHETTY, K.J. (J), RAY, B.C. (J) CITATION: 1988 AIR 121 1988 SCR (1)1010 1988 SCC (1) 105 JT 1987 (4) 433 1987 SCALE (2)1008 (4) V. Bhagat Vs D. Bhagat DATE OF JUDGMENT 19/11/1993 BENCH: JEEVAN REDDY, B.P. (J), KULDIP SINGH (J) CITATION: 1994 AIR 710, 1994 SCC (1) 337 JT 1993 (6) 428 1993 SCALE (4)488 (5) Romesh Chander Vs Savitri – DATE OF JUDGMENT 13/01/1995 BENCH: SAHAI, R.M. (J), MAJMUDAR S.B. (J) CITATION: 1995 AIR 851 1995 SCC (2) 7 JT 1995 (1) 362 1995 SCALE (1)177 (6) SMT. KANCHAN DEVI Vs. PROMOD KUMAR MITTAL & ANR. DATE OF JUDGMENT: 03/04/1996 BENCH:ANAND, A.S. (J) BENCH:ANAND, A.S. (J)FAIZAN UDDIN (J) CITATION:JT 1996 (5) 655 1996 SCALE (3)293 (7) Ashok Hurra Vs Rupa Bipin Zaveri DATE OF JUDGMENT: 10/03/1997 CIVIL APPEAL NO 1835 OF 1997 (8) G.V.N. KAMESWAR RAO Vs G. JABILLI DATE OF JUDGMENT: 10/01/2002 CASE NO.:Appeal (civil) 140 of 2002 BENCH: D.P. Mohapatra & K.G. Balakrishnan (9) Praveen Mehta Vs Inderjit Mehta DATE OF JUDGMENT 11/07/2002 CASE NO.: Appeal (civil) 3930 of 2002 (10) A. Jayachandra Vs Aneel Kaur DATE OF JUDGMENT: 02/12/2004 CASE NO.:Appeal (civil) 7763-7764 of 2004 BENCH: RUMA PAL, ARIJIT PASAYAT & C.K.THAKKER (11) Durga Prasanna Tripathy Vs Arundhati Tripathy DATE OF JUDGMENT : 23/08/2005 CASE NO.: Appeal (civil) 5184 of 2005 (12) Vineeta Saxena Vs Pankaj Pandit DATE OF JUDGMENT: 21/03/2006 CASE NO.: Appeal (civil) 1687 of 2006 BENCH: Ruma Pal & Dr. AR. Lakshmanan (13) K R MAHESH Vs MANJULA CASE NO.:Transfer Petition (civil) 947 of 2005 DATE OF JUDGMENT: 11/07/2006 BENCH:ARIJIT PASAYAT & S.H. KAPADIA (14) Kajol Ghosh Vs Sanghamitra Ghosh CASE NO.: Transfer Petition (civil) 228 of 2004 DATE OF JUDGMENT: 20/11/2006 BENCH: G.P. MATHUR & DALVEER BHANDARI (15) Rishikesh Sharma Vs Saroj Sharma- Dt DATE OF JUDGMENT 21/11/2006 CASE NO.:Appeal (civil) 5129 of 2006 (16) Sujata Uday Patil Vs Uday Madhukar Patil CASE NO.: Appeal (civil) 5779 of 2006 DATE OF JUDGMENT: 13/12/2006 BENCH: G.P. Mathur & A.K. Mathur (17) Mayadevi Vs Jagdhish Prasad CASE NO.:Appeal (civil) 877 of 2007 DATE OF JUDGMENT: 21/02/2007 BENCH: Dr. ARIJIT PASAYAT & DALVEER BHANDARI (18) Samar Ghosh Vs Jaya Ghosh DATE OF JUDGMENT: 26/03/2007 CASE NO.: Appeal (civil) 151 of 2004BENCH: B.N. Agrawal, P.P. Naolekar & Dalveer Bhandari (19) Satish Sitole Vs Smt Ganga DATE OF JUDGMENT : 10/07/2008 CIVIL APPEAL No. 7567 of 2004 (20) Suman Kapur Vs Sudhir Kapur DATE OF JUDGMENT 07/11/2008 CIVIL APPEAL NO.6582 OF 2008 And Last but not the least, THE LANDMARK JUDGEMENT (21) Naveen Kohli Vs Neelu Kohli Dt DATE OF JUDGMENT 21/03/2006 CASE NO.:Appeal (civil) 812 of 2004 Some Newspaper articles about our present Divorce Law : - “Examining the irretrievable breakdown of marriage as a ground for divorce Ankit Kejriwal, Prayank Nayak Irretrievable breakdown of marriage can be defined as such failure in the matrimonial relationship or such circumstances adverse to that relationship that no reasonable probability remains of the spouses remaining together as husband and wife for mutual comfort and support. It is the situation that occurs in a marriage when one spouse refuses to live with the other and will not work towards reconciliation. When there is not an iota of hope that parties can be reconciled to continue their matrimonial life, the marriage can be considered as Irretrievable Breakdown of marriage. This concept was first introduced in New Zealand. The Divorce and Matrimonial Causes Amendment Act, 1920 included for the first time the provision for separation agreement for three or more years was a ground for making petition to the court for divorce and the court was discretion whether to grant divorce or not. In England, the gate for this theory was opened up in the case of Masarati v. Masarati, where both the parties to the marriage had committed adultery. The court of appeal, on wife’s petition for divorce, observed breakdown of marriage. The law commission of England in its report said, The objectives of good divorce law are two: one to buttress rather than to undermine the stability of marriage and two, when regrettably a marriage has broken down, to enable the empty shell to be destroyed with maximum fairness, and minimum bitterness, humiliation and distress. On the recommendation of the Law commission, Irretrievable Breakdown of Marriage was made the sole ground for divorce under section 1 of the Divorce Law reforms Act, 1973. The Matrimonial Causes Act, 1959 of the Commonwealth of Australia provided for divorce on the grounds of breakdown of marriage. In India, breakdown of marriage is still not ground divorce in spite of the recommendation of the Law Commission and various Supreme Court judgments to include breakdown of marriage as a ground for divorce. This paper examines the need to introduce irretrievable breakdown of marriage as a ground of divorce. Theories of divorce The provisions relating to divorce are contained in Sec 13 of Hindu Marriage Act, 1955. The Act recognizes two theories of Divorce: the fault theory and divorce by mutual consent. Under the fault theory, marriage can be dissolved only when either party to the marriage had committed a matrimonial offence. Under this theory it is necessary to have a guilty and an innocent party and only innocent party can seek the remedy of divorce. However the most striking feature and drawback is that if both parties have been at fault, there is no remedy available. Another theory of divorce is that of mutual consent. The underlying rationale is that since two persons can marry by their free will, they should also be allowed to move out of their relationship of their own free will. However critics of this theory say that this approach will promote immorality as it will lead to hasty divorces and parties would dissolve their marriage even if there were slight incompatibility of temperament. Some of the grounds available under Hindu Marriage Act can be said to be under the theory of frustration by reason of specified circumstances. These include civil death, renouncement of the world etc. In this article we shall see that how these theories, owing to change in social circumstances and change in attitude towards the institution of marriage had failed to provide full justice in matrimonial cases. Judicial opinions The Supreme Court has adopted a literal view and granted divorce under irretrievable breakdown of marriage. In Ashok Hurra v. Rupa Bipin Zaveri, the husband and wife filed a suit for divorce by mutual consent. But, subsequently wife withdrew her consent. So the petition was dismissed by trial court. The Supreme Court held that We are of the view that cumulative effect of various aspects involved in the case indisputably point out that marriage is dead both emotionally and practically, and there is no chance at all of the same being revived and continuation of such relationship is only for name-sake. The Honble Court used Article 142 and granted divorce. The Delhi High Court in its full judge bench decision in Ram Kali v. Gopal Das, took note of modern trend not to insist on maintenance of an union which was broken and said, ‘it would be practical and realist approach, indeed it would be unreasonable and inhumane, to compel the marriage to keep up the facade of marriage even though the rift between them is complete and there are no prospects of their living together as husband and wife’. In the case of Savitri Pandey v. Prem Chandra Pandey, the Supreme Court reiterated the need for the inclusion of irretrievable breakdown of marriage as a ground for divorce. The Supreme Court in Manjula v. K.R. Mahesh held, the marriage has irretrievably broken down and there would be no point in making an effort to bring about conciliation between the parties. In Neetu Kohli v. Naveen Kohli, husband alleged that the wife was quarrelsome and was found in compromising situation with one Biswas Rout. The wife counter alleged that husband had a concubine. This established that the marriage had broken down irreparably and hence granted divorce on grounds of an irretrievable breakdown. It also observed that it was high time that this be included as ground for divorce in the Hindu Marriage Act, 1955. Seventy-first Law Commission Report The 71st Law Commission of India submitted to the Government on 7th April 1978 dealt with the concept of irretrievable breakdown of marriage. This matter was taken by the Law Commission as a result of the reference made by the Government of India in the Ministry of Law, Justice and Company affairs. The Report points out the fact that the fault and the guilt theories of divorce are not sufficient and cause injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the outward manifestations of marriage but the real substance is gone, it’s just like an empty shell. The Report unequivocally asserts that in such circumstances it will be in the interest of justice to dissolve the marriage. It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce; the parties alone can decide whether their mutual relationship provides the fulfillment, 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. The majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. The law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising there from. By refusing to sever that tie the law in such cases do not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. Other jurisdictions In most developed nations, the irretrievable breakdown of marriage is recognised as a ground for divorce. New Zealand was the first country to recognize it, through the (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920 where a separation agreement for three years is a ground for making a divorce petition. In England, on the recommendation of the Law Commission, it was made the sole ground for divorce under section 1 of the Divorce Law reforms Act, 1969. The Matrimonial Causes Act, 1959 of the commonwealth of Australia provided for divorce on the grounds of breakdown of marriage. The Family Law Act (Australia), 1975 considers irretrievable breakdown as sole ground for divorce. USSR in the initial years was very liberal in the granting of divorce. It was called post card divorce. Family instability led to the tightening of the divorce conditions lately. Under the (Canadian) Divorce Act, 1967-68 it is clearly recognised as a ground for divorce, apart from the normal fault grounds. Problems, suggestions However the an attempt to introduce irretrievable breakdown of marriage as a ground for divorce has met with resistance by women organization on the grounds that husbands would desert their wives and then ask for divorce under breakdown of marriage. Also it has been stated by few that the concept of irretrievable breakdown of marriage is somewhat vague. In answer to first criticism it has to be stated in situation where wife has been deserted it indicates that husband wants to get rid of wife and any continuation of such relationship would not make sense to both the parties to the marriage. However a safety clause can be inserted which would empower the court to refuse divorce if it adversely affects the interests of the children. A provision for maintenance for child and wife should be made. As far as the second objection is concerned, it should be necessary for grant of decree of divorce under this theory that parties had lived separately for reasonably long time say for three years. Living separately can be considered as objective criteria for breakdown of marriage. The concept of marriage is moving from a sacrament to a contract. The spouse should be granted a right to move out of the wedlock if they cannot live together due to extreme situations. Justice Krishna Iyer in the case of Aboobacker v. Mam stated while the stream of life, lived in marital mutuality, may wash away smaller pebbles, what is to happen if intransigent incompatibility of minds break up the flow of stream. Since the social conditions prevailing in the country are peculiar, sufficient changes are needed to be made in the law made so that law is able to ameliorate the conditions of the people who, in absence of required law are craving for relief and hence would be able to make process of dissolution less excruciating. A question may be asked that when irretrievable breakdown of marriage has been recognized as a ground for divorce by judiciary why we need an amendment in legislation. This is so because amendment would lay down conditions and safe guards, which should be taken into consideration before the grant of any decree. It is high time that the Government recognizes the need of the time and save many couples from the disgrace and humiliation by introducing the irretrievable breakdown of marriage as ground for divorce under Section 13 of the Hindu Marriage Act, 1955. REFERENCES Mulla, Principles of Hindu Law, Vol II, 19th ed. (ed SA DESAI), LexisNexis Butterworths, New Delhi. Paras Diwan, Hindu Law, 2nd ed.2002, Orient Publishing Company, New Delhi Rangnath. Misra, (rev.),Mayne, Hindu law and Usage, 15th ed.2003, Bharat Law House, New Delhi. Agrawala, Raj Kumari (1972). Changing Basis of divorce and the Hindu Law, Journal of Indian Law Institute, Vol.14, 1972, New Delhi. B.D. Agarwala (1997). Irretrievable Breakdown of Marriage'' as Ground of Divorce - Need for Inclusion, (1997) 8 SCC (Jour) 11. Kusum, Irretrievable Breakdown of Marriage: A ground for divorce, Journal of Indian Law Institute, Vol.20, 1978, New Delhi. (The authors are students of NALSAR University of Law, Hyderabad.)” AUSTRALIA If a marriage breaks down, it can legally be ended by the court granting a Divorce.There is only one ground for divorce in Australia - the fact that the marriage has irretrievably broken down. The legal test of irretrievable breakdown is that you have lived apart for at least twelve months and there is no prospect of reconciliation. As far as the court is concerned, this is all you have to establish. The judge won't be interested in who left whom, or whether one of you is having an affair, or whose 'fault' it was that the relationship broke down. Brazil Presumably due to the influence of the Roman Catholic Church, divorce only became legal in Brazil in 1977. Since January 2007, Brazilian couples can request a divorce at a notary's office when there is a consensus, the couple has been separated for more than a year and have no underage or special-needs children. The divorcees need only to present their national IDs, marriage certificate and pay a small fee to initiate the process, which is completed in two or three weeks. Canada Canada did not have a federal divorce law until 1968. Before that time, the process for getting a divorce varied from province to province. In Newfoundland and Quebec, it was necessary to get a private Act of Parliament in order to end a marriage. Most other provinces incorporated the English Matrimonial Causes Act of 1857 which allowed a husband to get a divorce on the grounds of his wife's adultery and a wife to get one only if she established that her husband committed any of a list of particular sexual behaviours but not simply adultery. Some provinces had legislation allowing either spouse to get a divorce on the basis of adultery. The federal Divorce Act of 1968 standardized the law of divorce across Canada and introduced the no-fault concept of permanent marriage breakdown as a ground for divorce as well as fault based grounds including adultery, cruelty and desertion. In Canada, while civil and political rights are in the jurisdiction of the provinces, the Constitution of Canada specifically made marriage and divorce the realm of the federal government. Essentially this means that Canada's divorce law is uniform throughout Canada, even in Quebec, which differs from the other provinces in its use of the civil law as codified in the Civil Code of Quebec as opposed to the common law that is in force in the other provinces and generally interpreted in similar ways throughout the Anglo-Canadian provinces. The Canada Divorce Act recognizes divorce only on the ground of breakdown of the marriage. Breakdown can only be established if one of three grounds hold: adultery, cruelty, and being separated for one year. Most divorces proceed on the basis of the spouses being separated for one year, even if there has been cruelty or adultery. This is because proving cruelty or adultery is expensive and time consuming.[5] The one-year period of separation starts from the time at least one spouse intends to live separate and apart from the other and acts on it. A couple does not need a court order to be separated, since there is no such thing as a "legal separation" in Canada. A couple can even be considered to be "separated" even if they are living in the same dwelling. Either spouse can apply for a divorce in the province in which either the husband or wife has lived for at least one year. On September 13, 2004, the Ontario Court of Appeal declared a portion of the Divorce Act also unconstitutional for excluding same-sex marriages, which at the time of the decision were recognized in three provinces and one territory. It ordered same-sex marriages read into that act, permitting the plaintiffs, a lesbian couple, to divorce.[7] France The French Civil code (modified on January 1, 2005), permits divorce for 4 different reasons; mutual consent (which comprises over 60% of all divorces); acceptance; separation of 2 years; and due to the 'fault' of one partner (accounting for most of the other 40%). Sweden To divorce in Sweden the couple can file for divorce together or one party can file alone. If they have children under 16 living at home or one party does not wish to get divorced there is a required contemplation period of 6 to 12 months. During this period they stay married and the request must be confirmed after the waiting period for the divorce to go through.[16] United Kingdom England and Wales A divorce in England and Wales is only possible for marriages of more than one year and when the marriage has irretrievably broken down. Whilst it is possible to defend a divorce, the vast majority proceed on an undefended basis. A decree of divorce is initially granted 'nisi', i.e. (unless cause is later shown), before it is made 'absolute' From beginning to end, if everything goes smoothly and Court permitting, it takes around 6 months. There is only one 'ground' for divorce under English law. That is that the marriage has irretrievably broken down. There are however five 'facts' that may constitute this ground. They are: · Adultery often now considered the 'nice' divorce. respondents admitting to adultery will not be penalised financially or otherwise. · Unreasonable behaviour (most common ground for divorce today ) the petition must contain a series of allegations proving that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him/her. the allegations may be of a serious nature (eg. abuse or excessive drinking) but may also be mild such as having no common interests or pursuing a separate social life ; the courts won't insist on severe allegations as they adopt a realistic attitude: if one party feels so strongly that a behaviour is "unreasonable" as to issue a divorce petition, it is clear that the marriage has irretrievably broken down and it would be futile to try to prevent the divorce. [4] · Two years separation (if both parties consent) both parties must consent the parties must have lived separate lives for at least two years prior to the presentation of the petition this can occur if the parties live in the same household, but the petitioner would need to make clear in the petition such matters as they ate separately, etc. · Two years desertion Five years separation (if only one party consents) Scotland About one third of marriages in Scotland end in divorce, on average after about thirteen years. Actions for divorce in Scotland may be brought in either the Sheriff Court or the Court of Session. In practice, it is only actions in which unusually large sums of money are in dispute, or with an international element, that are raised in the Court of Session. If, as is usual, there are no contentious issues, it is not necessary to employ a lawyer. Divorce (Scotland) Act 1976. It is likely that the two year separation period required for a no-fault divorce with consent will be reduced to one year. United States Marital Status in the U.S. Divorce in the United States is a matter of state rather than federal law. In recent years, however, more federal legislation has been enacted affecting the rights and responsibilities of divorcing spouses. The laws of the state(s) of residence at the time of divorce govern; all states recognize divorces granted by any other state. All states impose a minimum time of residence. Typically, a county court’s family division judges petitions for dissolution of marriages. Prior to the latter decades of the 20th century, a spouse seeking divorce had to show cause and even then might not be able to obtain a divorce. The no-fault divorce "revolution" began in 1969 in California, and was completed in 1985 (New York is the last holdout ). However, most states require some waiting period, typically a 1 to 2 year separation. Fault grounds, when available, are sometimes still sought. This may be done where it reduces the waiting period otherwise required, or possibly in hopes of affecting decisions related to a divorce, such as child custody, child support, or alimony.” “Divorce law in our country belongs to an era that has long elapsed. But the laws have neither kept pace nor do they take into account the altered socio-economic realities of contemporary India. This is highlighted, once more, by the recent controversy surrounding grounds for divorce following Smriti Shinde's petition to the apex court urging it to consider granting unilateral divorce when a marriage has irretrievably broken down. The Supreme Court itself is ambivalent about where it stands on the matter. Under the Hindu Marriage Act or the Special Marriage Act, there are no provisions that recognise "irretrievable breakdown" or "irreconcilable differences" as grounds for granting divorce when it is not a mutually consensual decision. However, in 2006, the apex court granted divorce in the Naveen Kohli vs Neelu Kohli case, precisely because of irretrievable breakdown of marriage. But, early this year, another SC bench refused to entertain this argument in the Vishnu Dutt Sharma vs Manju Sharma case. It decided to stick to the letter of the law. This is as good a time as any for the laws governing divorce to be updated. In doing so, the issue must not be looked at through a moral prism alone. As Indians interface with the world and are exposed to new ideas and opportunities, there is bound to be a social churn, which impacts on personal affairs like marriage and family relations. Add to this the fact that more women today are economically more independent and assertive of their rights and choices. Divorce must be seen as a social reality, unfortunate though it might be, and not as a social evil. There are of course legitimate concerns that waiving the mutual consent clause to grant divorce in cases of irreparable marital breakdown would put women in a vulnerable position. But that cannot be used as an excuse to deny those who would genuinely benefit from easing the process of obtaining a divorce. As things stand, one has to go through a lengthy, convoluted and extremely stressful procedure to get a divorce. It's time that changed.” “Feelings of two human beings are involved in a couple’s married life. This could not be patched up by enforcement of law by courts. It is up to the individuals to mend themselves. A horse can be taken to water but it is the horse that should drink it. However, the law should not deny divorce if the marriage has really broken down. By forcing unity with a hammer in the hand, the law does not serve the sanctity attached to the institution of marriage by religions. If the relationship of husband and wife wrecks beyond repair, what is wrong in recognizing that fact and allow them to live separately. How can one compel a wife or a husband to continue to live with spouse if they have fallen apart? If so compelled they would have to lead miserable life.” Forget everything else , just imagine a scenario in a bedroom of a couple where a Judge is sitting and deciding about the “cruelty” performed or not among the couple. It must be sounding ridiculous and to avoid such embarrassment, Law Commission suggested the amendment in the divorce law itself through recent Report (Report no 217, November 2008): - III.RECOMMENDATION 3.1 It is, therefore, suggested that immediate action be taken to introduce an amendment in the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 for inclusion of ‘irretrievable breakdown of marriage’ as another ground for grant of divorce. 3.2 The amendment may also provide that the court before granting a decree for divorce on the ground that the marriage has irretrievably broken down should also examine whether adequate financial arrangements have been made for the parties and children I like to highlight some facts in countries, where NO- FAULT (effectively faster & peaceful) divorce exists: - · A decline in the rates of domestic violence (which is obviously of a very high concern in India) · These laws empower a man or woman in an “abusive marriage” and make it easier to leave and live separate · Means less conflict during divorce, which means less emotional harm to children whose parents, are divorcing (very much valid in my case) · Shortens the length of time it takes to obtain a divorce, which, in turn, shortens the amount of time spent in a stressful situation causing physical and mental damage to involved party (as in my case, I am having anti depression drugs as prescribed) · Financial settlements are based on need, ability to pay and contribution to the family finances, rather than on fault ( I am ready to accept any reasonable amount decided by judiciary) · Helps reduce the heavy caseloads of family courts (obviously valid for India) Our legislation is hesitating to amend the law. Nobody wants to disturb the “STATUS CO”. Its human nature to resist any kind of change. A Surgery is done only when that is needed, to avoid some greater pain or loss. If we remember, we in India had customs like “SOTI DAHO PROTHA” (burning the widow with dead husband), which now we can’t even imagine. As we are getting exposed to the world, we have to ratinolise our thought process and laws, by improvising any outdated system or rule. Staying apart for a considerable period itself points towards the death of the marriage, “Divorce” is just the legal nomenclature of that unfortunate incident. No divorce or even cause of any divorce will initiate because of the said amendment, but surely it will decrease the suffering of couple whose divorce already initiated. This amendment is only an addition to the grounds of divorce; no way it can hamper the relationship between a married couple. At the end we all must remember- LAW IS MADE BY THE PEOPLE LAW IS MADE FOR THE PEOPLE.
  22. divorcelawamendment

    Indian divorce law opposes globalization

    DIVORCE LAW AMENDMENT AS PER LAW COMMISSION’S RECOMMENDATION IN 2009 – NOT YET DONE Another case of :- JUSTICE DENAIED when JUSTICE DELAYED Groom: Aged about 40yrs, Bride: 41 yrs, Son: Aged about 12yrs PAST On or about 1984, I, at the age of 15 years proposed to a 16 year girl – and the story began. I forgot that I lost my father at the age of 11 years , had a sister aged 6 years and my widow mother. I had lots of responsibilities to carry out as the only son of my beloved father. In a romantic mood, I forgot the difference in financial status of the two families. The story could have been entirely different if the girl would have refused me then and there, but she accepted me. But her family was “matured” and they opposed it in every possible way. I had my first big exam (10+) just at door. In spite of broken heart I tried my best and got 70% in the exam. Thereafter I could realise the real state of affairs, as the girl became totally silent. But I wanted to meet the girl at least once and finally found her in July,1988, in her college,15 km away from her home. In between, the girl never informed me about her whereabouts. Again on that day the girl agreed to “CARRY ON” the romance for the time being. In 1994, myself got married after lots of inside drama from her family. Her father could never accept me “from heart” as an eligible husband of his daughter and he did a “FAVOUR” to us; by managing to get a job for her, in a school 65 km away from her in-law’s house, just a month before the said marriage. Meantime I managed to make a house with the proceeds received from LIC, obtained after my father’s death. At that time, I was looking after the “small” business left by my father. But her father could never rely on my financial condition and his daughter continued with the service by ferrying daily up and down 130 km. She used to stay very often at her father’s house (close to workplace). She conceived in 1995, but had a miscarriage, and she had two more miscarriages after that in two consecutive years. I lost the joy of being a FATHER and the doctors told specifically that all these miscarriages happened due to her daily strenuous journey . In between, I have decided to take up a job. And my wife finally decided to leave her job, her father also agreed (after some drama again) to the decision. And just after that she became the “proud mother” of our only son. But she could never forgive me for that decision, although she made her own decision always. I started feeling humiliated for the indirect responsibility for the cause of leaving her job. The misunderstanding began and it increased day after day. I concentrated on my job, and obtained recognition from my employer. I was earning enough to carry on my responsibilities. I built up another floor in the house, since my mother had a long desire for that. I performed my last pending duty by getting my sister married in 2006. I started realising slowly, that I am nothing but a moneymaking machine for my wife. Needless to say, in between, the marriage lost all its charm in all way. My wife became a “lady” by then and was reasonably satisfied with her monetary status, and I became a late 30’s gentleman and kept myself satisfied with my job with an understanding that for the sake of my son, we should stay together. But from 2007, she started taunting me even in front of my son. I became mentally broke. My health was broken, started suffering from IBS, BP etc. (diseases from tension and mental unrest) and started thinking about separation and divorce. I had to take sedative regularly. At the same time I was worried about my son’s future. We were sleeping in different rooms from 2008. My wife stopped using Sindoor from 2006. I really wanted to forget all her past begaviours as bad dreams, but I couldn’t. I love my job; it has given me my own identity and before the situation affects my job performance, I wanted to end it. I was in a dilemma till April 2009 (on the death anniversary of my father); when she humiliated me about my parents and myself with some nasty words (“you have some problem in your blood, that’s why I am worried about my son’s future staying with you”). I have finally decided for DIVORCE. Previously, she said many times that she would also prefer the mutual application for Divorce. But this time she disagreed and after discussing with her father, they demanded huge ransom money as “compensation”. She also told me that as divorce is inevitable, one of us should leave the house. I wanted to provide my son at least the same house after separation, which I felt necessary for my son’s upbringing. I shifted to a rented apartment near my place of work in July,2009. She was taking money (whatever needed) from me as usual and delaying the filing process for any separation, keeping the same humiliation process on. I agreed (also paid till date) to pay all necessary expenses for maintenance of my son and wife, including the maintenance for the house where they are still staying with my mother. After all this in 25 years, her father again failed to rely on me. Earlier, I had no money, so they hesitated to get myself married to her. But now, they do not know how much money to claim from me, to spoil me even after Divorce, and that is why they are hesitating to go for a mutual divorce. So I had no other alternative to file the divorce petition in September 2009. I know lots of odds will come from my mother and relatives, as divorce is still considered as a social taboo. Each marriage is between two individual – not between “Ideal Wife” and “Ideal Husband” . I am responsible for my job (doing it last 13 years) as well as my family. I belong to a social class and agree to pay any reasonable maintenance (the only sub clause was recommended as check measure for divorce for Irretrievable Break Down) as decided by the Honourable Court. Contest divorce itself is a very tough decision. Even in my professional life, people are not taking it easily. Still I want to take my own black spots, my failure in the marriage - to the public, at least to the people who matters; cant play hide and seek game anymore. I stopped myself several times; thinking about my son, but he should also better see one parent than parents without love or respect for each other. Perhaps by staying apart both of us can maintain a healthy relation with him. PRESENT [ Lots of incidents happened in between: - In October, I felt sad for my son (but nothing for my wife) and came to my old address. But the “drama” continued. I got seriously depressed after noticing my wife’s behavior. Actually she got much more “CRUEL”, and silently (sometime with abusive language in a very low voice) she started humiliating me. Finally, I went to a psychiatrist. I was suffering from a tremendous depression and trauma for my wife’s behavior. After being checked up by 2 more doctors, I am taking anti-depressant drugs since then. Recently (January, 2009) I got a “fit certificate” from Doctor, but still having medicines. In between, she forced to bring all household goods from my rented apartment and stopped to me sell the same, although some items (like fridge) were duplicated. I really got spellbound noticing her attitude. She forced me to shift to 1st floor leaving my mother on ground floor. On 1st floor we were sleeping in different rooms .Now I am again residing at my rented apartment. ] Now it’s already 5 months gone after my filing. The first date was in Dec 2009. On that day I just got another date. And on the next date also, I shall surely get just “another date.” Is not this the right (if not delayed already) time to address the problem associated with Indian Divorce Act itself? Please note, I am not the 1st to say this, the law commissions already felt this in 1971 and 2009 (reports enclosed). Both “seriously” recommended introducing THE IRRETRIEVABLE BREAK DOWN OF MARRIAGE as another ground for divorce. We have now a “Fault divorce” and mutual divorce. When my partner and me can’t agree on a less affecting thing like “mutual divorce” (which means to break the tie of marriage), how can we STAY TOGETHER in marriage thereafter? All of us know that, staying together (in any form) requires much more agreement between any two people than to stay apart. That means I have to request (or beg or buy) my wife to be free from marriage, just like a sentenced captive from the Jail. Judiciary indirectly being used as a tool to bargain terms for divorce, in cases like this. Yes, when there is legal battle between couple, who are staying separate over a year, the only motto can be to get a “good bargain” or to harass one spouse by mere non-cooperation. My wife now more “ cruel” in behaviour. She is fighting legally with me – that means she don’t have any ‘emotional” dependence on me. When we talk about our “old tradition of marriage” we often forget that, no “traditional” wife will come to court to keep or leave her marriage. I would like to mention another thing. My petition primarily based on “CRUELTY”, as the most suitable “available ground” for divorce. But one has to understand that fairer sex normally don’t act “cruel” by physical nature. Even in some cases “SILENCE” or “ABSENCE OF CORDIAL NATURE” between husband and wife can be cruelty of severe nature, which happened in my case. And when a person like me, who act as a Manager in a reputed company, files the divorce for wife’s cruelty, it can effect my professional reputation to a great extent. Actually it’s very much humiliating for me to file the petition and fight for that. It’s not explainable to anyone, but one who is in similar condition, can very well understand this. Broken marriage is not a crime and by the recommended amendment, divorce law can address that break with far less complexity. As we all know, nobody or nothing can compel a couple or any two people to live together. Present Divorce Law can delay (and make more bitter) the process of divorce, but can’t really change the direction in this scenario. Can the Judiciary ask me to point out very private part of my life like marriage? Is not this hampering my basic fundamental right as a citizen? When there is no such law for a “father & son” or “mother & son” relation to be in that tie for ever (although maintenance clause is there), why would be such gross disparity in case of marriage? Are later the more “NOBLE” or “MUST ON” relations than the earlier? Is institution of marriage a serious “offense”, which if I have done once, can’t be freed till my death? Is wedlock means deadlock? Now as an effect I have two options – EITHER to stay in my marriage forgetting about my own negative feelings compromising with my health and peace of mind OR To badmouth my son’s mother in the court to prove her fault to get rid of her. In both cases either my wife or I would be sufferer, not the Honurable Judiciary or the legislative body! Won’t the chances of any healthy relation would decrease or diminish just because of amount of tension created between us during the process, as more dates means more blames or more defense (which is also a part of attack mechanism)? Even the child would be indirectly sufferer for the bitterness between the parents as helpless witness of the whole event. Breaking up is a hard decision for anyone, but while doing, why we (in the process itself for its duration & nature) need to be nasty instead of peaceful? If a marriage can be done in a one-month notice period, why the divorce would be delayed for YEARS? I am referring to some very pertinent cases where Honourable Supreme Court of India understood the gravity of the circumstances and granted the decree of divorce by dissolving the marriage, sometimes even after the lower court’s verdict in an opposite direction. In most of the cases, petition filed against wife’s cruelty. Judiciary understood that delaying the process would only increase bitterness between the couple. Whenever we delay something, it affects. In this scenario its affecting unfortunate people like me. (1) N. G . Dastane Vs S. N. Dastane DATE OF JUDGMENT : 19/03/1975 BENCH: CHANDRACHUD, Y.V. GOSWAMI, P.K. UNTWALIA, N.L. CITATION: 1975 AIR 1534 1975 SCR (3) 967, 1975 SCC(2) 326CITATOR INFO : RF 1988 SC 121 (7,10) (2) SIRAJMOHMEDKHAN JANMOHAMADKHAN HAFIZUNNISA YASINKHAN & ANR DATE OF JUDGMENT14/09/1981 BENCH:FAZALALI, SYED MURTAZA BENCH:FAZALALI, SYED MURTAZA SEN, A.P. (J) CITATION: 1981 AIR 1972 1982 SCR (1) 695 1981 SCC (4) 250 1981 SCALE (3)1400 (3) Shobha Rani Vs Madhukar Reddi DATE OF JUDGMENT12/11/1987 BENCH:SHETTY, K.J. (J), RAY, B.C. (J) CITATION: 1988 AIR 121 1988 SCR (1)1010 1988 SCC (1) 105 JT 1987 (4) 433 1987 SCALE (2)1008 (4) V. Bhagat Vs D. Bhagat DATE OF JUDGMENT 19/11/1993 BENCH: JEEVAN REDDY, B.P. (J), KULDIP SINGH (J) CITATION: 1994 AIR 710, 1994 SCC (1) 337 JT 1993 (6) 428 1993 SCALE (4)488 (5) Romesh Chander Vs Savitri – DATE OF JUDGMENT 13/01/1995 BENCH: SAHAI, R.M. (J), MAJMUDAR S.B. (J) CITATION: 1995 AIR 851 1995 SCC (2) 7 JT 1995 (1) 362 1995 SCALE (1)177 (6) SMT. KANCHAN DEVI Vs. PROMOD KUMAR MITTAL & ANR. DATE OF JUDGMENT: 03/04/1996 BENCH:ANAND, A.S. (J) BENCH:ANAND, A.S. (J)FAIZAN UDDIN (J) CITATION:JT 1996 (5) 655 1996 SCALE (3)293 (7) Ashok Hurra Vs Rupa Bipin Zaveri DATE OF JUDGMENT: 10/03/1997 CIVIL APPEAL NO 1835 OF 1997 (8) G.V.N. KAMESWAR RAO Vs G. JABILLI DATE OF JUDGMENT: 10/01/2002 CASE NO.:Appeal (civil) 140 of 2002 BENCH: D.P. Mohapatra & K.G. Balakrishnan (9) Praveen Mehta Vs Inderjit Mehta DATE OF JUDGMENT 11/07/2002 CASE NO.: Appeal (civil) 3930 of 2002 (10) A. Jayachandra Vs Aneel Kaur DATE OF JUDGMENT: 02/12/2004 CASE NO.:Appeal (civil) 7763-7764 of 2004 BENCH: RUMA PAL, ARIJIT PASAYAT & C.K.THAKKER (11) Durga Prasanna Tripathy Vs Arundhati Tripathy DATE OF JUDGMENT : 23/08/2005 CASE NO.: Appeal (civil) 5184 of 2005 (12) Vineeta Saxena Vs Pankaj Pandit DATE OF JUDGMENT: 21/03/2006 CASE NO.: Appeal (civil) 1687 of 2006 BENCH: Ruma Pal & Dr. AR. Lakshmanan (13) K R MAHESH Vs MANJULA CASE NO.:Transfer Petition (civil) 947 of 2005 DATE OF JUDGMENT: 11/07/2006 BENCH:ARIJIT PASAYAT & S.H. KAPADIA (14) Kajol Ghosh Vs Sanghamitra Ghosh CASE NO.: Transfer Petition (civil) 228 of 2004 DATE OF JUDGMENT: 20/11/2006 BENCH: G.P. MATHUR & DALVEER BHANDARI (15) Rishikesh Sharma Vs Saroj Sharma- Dt DATE OF JUDGMENT 21/11/2006 CASE NO.:Appeal (civil) 5129 of 2006 (16) Sujata Uday Patil Vs Uday Madhukar Patil CASE NO.: Appeal (civil) 5779 of 2006 DATE OF JUDGMENT: 13/12/2006 BENCH: G.P. Mathur & A.K. Mathur (17) Mayadevi Vs Jagdhish Prasad CASE NO.:Appeal (civil) 877 of 2007 DATE OF JUDGMENT: 21/02/2007 BENCH: Dr. ARIJIT PASAYAT & DALVEER BHANDARI (18) Samar Ghosh Vs Jaya Ghosh DATE OF JUDGMENT: 26/03/2007 CASE NO.: Appeal (civil) 151 of 2004BENCH: B.N. Agrawal, P.P. Naolekar & Dalveer Bhandari (19) Satish Sitole Vs Smt Ganga DATE OF JUDGMENT : 10/07/2008 CIVIL APPEAL No. 7567 of 2004 (20) Suman Kapur Vs Sudhir Kapur DATE OF JUDGMENT 07/11/2008 CIVIL APPEAL NO.6582 OF 2008 And Last but not the least, THE LANDMARK JUDGEMENT (21) Naveen Kohli Vs Neelu Kohli Dt DATE OF JUDGMENT 21/03/2006 CASE NO.:Appeal (civil) 812 of 2004 Some Newspaper articles about our present Divorce Law : - “Examining the irretrievable breakdown of marriage as a ground for divorce Ankit Kejriwal, Prayank Nayak Irretrievable breakdown of marriage can be defined as such failure in the matrimonial relationship or such circumstances adverse to that relationship that no reasonable probability remains of the spouses remaining together as husband and wife for mutual comfort and support. It is the situation that occurs in a marriage when one spouse refuses to live with the other and will not work towards reconciliation. When there is not an iota of hope that parties can be reconciled to continue their matrimonial life, the marriage can be considered as Irretrievable Breakdown of marriage. This concept was first introduced in New Zealand. The Divorce and Matrimonial Causes Amendment Act, 1920 included for the first time the provision for separation agreement for three or more years was a ground for making petition to the court for divorce and the court was discretion whether to grant divorce or not. In England, the gate for this theory was opened up in the case of Masarati v. Masarati, where both the parties to the marriage had committed adultery. The court of appeal, on wife’s petition for divorce, observed breakdown of marriage. The law commission of England in its report said, The objectives of good divorce law are two: one to buttress rather than to undermine the stability of marriage and two, when regrettably a marriage has broken down, to enable the empty shell to be destroyed with maximum fairness, and minimum bitterness, humiliation and distress. On the recommendation of the Law commission, Irretrievable Breakdown of Marriage was made the sole ground for divorce under section 1 of the Divorce Law reforms Act, 1973. The Matrimonial Causes Act, 1959 of the Commonwealth of Australia provided for divorce on the grounds of breakdown of marriage. In India, breakdown of marriage is still not ground divorce in spite of the recommendation of the Law Commission and various Supreme Court judgments to include breakdown of marriage as a ground for divorce. This paper examines the need to introduce irretrievable breakdown of marriage as a ground of divorce. Theories of divorce The provisions relating to divorce are contained in Sec 13 of Hindu Marriage Act, 1955. The Act recognizes two theories of Divorce: the fault theory and divorce by mutual consent. Under the fault theory, marriage can be dissolved only when either party to the marriage had committed a matrimonial offence. Under this theory it is necessary to have a guilty and an innocent party and only innocent party can seek the remedy of divorce. However the most striking feature and drawback is that if both parties have been at fault, there is no remedy available. Another theory of divorce is that of mutual consent. The underlying rationale is that since two persons can marry by their free will, they should also be allowed to move out of their relationship of their own free will. However critics of this theory say that this approach will promote immorality as it will lead to hasty divorces and parties would dissolve their marriage even if there were slight incompatibility of temperament. Some of the grounds available under Hindu Marriage Act can be said to be under the theory of frustration by reason of specified circumstances. These include civil death, renouncement of the world etc. In this article we shall see that how these theories, owing to change in social circumstances and change in attitude towards the institution of marriage had failed to provide full justice in matrimonial cases. Judicial opinions The Supreme Court has adopted a literal view and granted divorce under irretrievable breakdown of marriage. In Ashok Hurra v. Rupa Bipin Zaveri, the husband and wife filed a suit for divorce by mutual consent. But, subsequently wife withdrew her consent. So the petition was dismissed by trial court. The Supreme Court held that We are of the view that cumulative effect of various aspects involved in the case indisputably point out that marriage is dead both emotionally and practically, and there is no chance at all of the same being revived and continuation of such relationship is only for name-sake. The Honble Court used Article 142 and granted divorce. The Delhi High Court in its full judge bench decision in Ram Kali v. Gopal Das, took note of modern trend not to insist on maintenance of an union which was broken and said, ‘it would be practical and realist approach, indeed it would be unreasonable and inhumane, to compel the marriage to keep up the facade of marriage even though the rift between them is complete and there are no prospects of their living together as husband and wife’. In the case of Savitri Pandey v. Prem Chandra Pandey, the Supreme Court reiterated the need for the inclusion of irretrievable breakdown of marriage as a ground for divorce. The Supreme Court in Manjula v. K.R. Mahesh held, the marriage has irretrievably broken down and there would be no point in making an effort to bring about conciliation between the parties. In Neetu Kohli v. Naveen Kohli, husband alleged that the wife was quarrelsome and was found in compromising situation with one Biswas Rout. The wife counter alleged that husband had a concubine. This established that the marriage had broken down irreparably and hence granted divorce on grounds of an irretrievable breakdown. It also observed that it was high time that this be included as ground for divorce in the Hindu Marriage Act, 1955. Seventy-first Law Commission Report The 71st Law Commission of India submitted to the Government on 7th April 1978 dealt with the concept of irretrievable breakdown of marriage. This matter was taken by the Law Commission as a result of the reference made by the Government of India in the Ministry of Law, Justice and Company affairs. The Report points out the fact that the fault and the guilt theories of divorce are not sufficient and cause injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the outward manifestations of marriage but the real substance is gone, it’s just like an empty shell. The Report unequivocally asserts that in such circumstances it will be in the interest of justice to dissolve the marriage. It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce; the parties alone can decide whether their mutual relationship provides the fulfillment, 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. The majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. The law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising there from. By refusing to sever that tie the law in such cases do not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. Other jurisdictions In most developed nations, the irretrievable breakdown of marriage is recognised as a ground for divorce. New Zealand was the first country to recognize it, through the (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920 where a separation agreement for three years is a ground for making a divorce petition. In England, on the recommendation of the Law Commission, it was made the sole ground for divorce under section 1 of the Divorce Law reforms Act, 1969. The Matrimonial Causes Act, 1959 of the commonwealth of Australia provided for divorce on the grounds of breakdown of marriage. The Family Law Act (Australia), 1975 considers irretrievable breakdown as sole ground for divorce. USSR in the initial years was very liberal in the granting of divorce. It was called post card divorce. Family instability led to the tightening of the divorce conditions lately. Under the (Canadian) Divorce Act, 1967-68 it is clearly recognised as a ground for divorce, apart from the normal fault grounds. Problems, suggestions However the an attempt to introduce irretrievable breakdown of marriage as a ground for divorce has met with resistance by women organization on the grounds that husbands would desert their wives and then ask for divorce under breakdown of marriage. Also it has been stated by few that the concept of irretrievable breakdown of marriage is somewhat vague. In answer to first criticism it has to be stated in situation where wife has been deserted it indicates that husband wants to get rid of wife and any continuation of such relationship would not make sense to both the parties to the marriage. However a safety clause can be inserted which would empower the court to refuse divorce if it adversely affects the interests of the children. A provision for maintenance for child and wife should be made. As far as the second objection is concerned, it should be necessary for grant of decree of divorce under this theory that parties had lived separately for reasonably long time say for three years. Living separately can be considered as objective criteria for breakdown of marriage. The concept of marriage is moving from a sacrament to a contract. The spouse should be granted a right to move out of the wedlock if they cannot live together due to extreme situations. Justice Krishna Iyer in the case of Aboobacker v. Mam stated while the stream of life, lived in marital mutuality, may wash away smaller pebbles, what is to happen if intransigent incompatibility of minds break up the flow of stream. Since the social conditions prevailing in the country are peculiar, sufficient changes are needed to be made in the law made so that law is able to ameliorate the conditions of the people who, in absence of required law are craving for relief and hence would be able to make process of dissolution less excruciating. A question may be asked that when irretrievable breakdown of marriage has been recognized as a ground for divorce by judiciary why we need an amendment in legislation. This is so because amendment would lay down conditions and safe guards, which should be taken into consideration before the grant of any decree. It is high time that the Government recognizes the need of the time and save many couples from the disgrace and humiliation by introducing the irretrievable breakdown of marriage as ground for divorce under Section 13 of the Hindu Marriage Act, 1955. REFERENCES Mulla, Principles of Hindu Law, Vol II, 19th ed. (ed SA DESAI), LexisNexis Butterworths, New Delhi. Paras Diwan, Hindu Law, 2nd ed.2002, Orient Publishing Company, New Delhi Rangnath. Misra, (rev.),Mayne, Hindu law and Usage, 15th ed.2003, Bharat Law House, New Delhi. Agrawala, Raj Kumari (1972). Changing Basis of divorce and the Hindu Law, Journal of Indian Law Institute, Vol.14, 1972, New Delhi. B.D. Agarwala (1997). Irretrievable Breakdown of Marriage'' as Ground of Divorce - Need for Inclusion, (1997) 8 SCC (Jour) 11. Kusum, Irretrievable Breakdown of Marriage: A ground for divorce, Journal of Indian Law Institute, Vol.20, 1978, New Delhi. (The authors are students of NALSAR University of Law, Hyderabad.)” AUSTRALIA If a marriage breaks down, it can legally be ended by the court granting a Divorce.There is only one ground for divorce in Australia - the fact that the marriage has irretrievably broken down. The legal test of irretrievable breakdown is that you have lived apart for at least twelve months and there is no prospect of reconciliation. As far as the court is concerned, this is all you have to establish. The judge won't be interested in who left whom, or whether one of you is having an affair, or whose 'fault' it was that the relationship broke down. Brazil Presumably due to the influence of the Roman Catholic Church, divorce only became legal in Brazil in 1977. Since January 2007, Brazilian couples can request a divorce at a notary's office when there is a consensus, the couple has been separated for more than a year and have no underage or special-needs children. The divorcees need only to present their national IDs, marriage certificate and pay a small fee to initiate the process, which is completed in two or three weeks. Canada Canada did not have a federal divorce law until 1968. Before that time, the process for getting a divorce varied from province to province. In Newfoundland and Quebec, it was necessary to get a private Act of Parliament in order to end a marriage. Most other provinces incorporated the English Matrimonial Causes Act of 1857 which allowed a husband to get a divorce on the grounds of his wife's adultery and a wife to get one only if she established that her husband committed any of a list of particular sexual behaviours but not simply adultery. Some provinces had legislation allowing either spouse to get a divorce on the basis of adultery. The federal Divorce Act of 1968 standardized the law of divorce across Canada and introduced the no-fault concept of permanent marriage breakdown as a ground for divorce as well as fault based grounds including adultery, cruelty and desertion. In Canada, while civil and political rights are in the jurisdiction of the provinces, the Constitution of Canada specifically made marriage and divorce the realm of the federal government. Essentially this means that Canada's divorce law is uniform throughout Canada, even in Quebec, which differs from the other provinces in its use of the civil law as codified in the Civil Code of Quebec as opposed to the common law that is in force in the other provinces and generally interpreted in similar ways throughout the Anglo-Canadian provinces. The Canada Divorce Act recognizes divorce only on the ground of breakdown of the marriage. Breakdown can only be established if one of three grounds hold: adultery, cruelty, and being separated for one year. Most divorces proceed on the basis of the spouses being separated for one year, even if there has been cruelty or adultery. This is because proving cruelty or adultery is expensive and time consuming.[5] The one-year period of separation starts from the time at least one spouse intends to live separate and apart from the other and acts on it. A couple does not need a court order to be separated, since there is no such thing as a "legal separation" in Canada. A couple can even be considered to be "separated" even if they are living in the same dwelling. Either spouse can apply for a divorce in the province in which either the husband or wife has lived for at least one year. On September 13, 2004, the Ontario Court of Appeal declared a portion of the Divorce Act also unconstitutional for excluding same-sex marriages, which at the time of the decision were recognized in three provinces and one territory. It ordered same-sex marriages read into that act, permitting the plaintiffs, a lesbian couple, to divorce.[7] France The French Civil code (modified on January 1, 2005), permits divorce for 4 different reasons; mutual consent (which comprises over 60% of all divorces); acceptance; separation of 2 years; and due to the 'fault' of one partner (accounting for most of the other 40%). Sweden To divorce in Sweden the couple can file for divorce together or one party can file alone. If they have children under 16 living at home or one party does not wish to get divorced there is a required contemplation period of 6 to 12 months. During this period they stay married and the request must be confirmed after the waiting period for the divorce to go through.[16] United Kingdom England and Wales A divorce in England and Wales is only possible for marriages of more than one year and when the marriage has irretrievably broken down. Whilst it is possible to defend a divorce, the vast majority proceed on an undefended basis. A decree of divorce is initially granted 'nisi', i.e. (unless cause is later shown), before it is made 'absolute' From beginning to end, if everything goes smoothly and Court permitting, it takes around 6 months. There is only one 'ground' for divorce under English law. That is that the marriage has irretrievably broken down. There are however five 'facts' that may constitute this ground. They are: · Adultery often now considered the 'nice' divorce. respondents admitting to adultery will not be penalised financially or otherwise. · Unreasonable behaviour (most common ground for divorce today ) the petition must contain a series of allegations proving that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him/her. the allegations may be of a serious nature (eg. abuse or excessive drinking) but may also be mild such as having no common interests or pursuing a separate social life ; the courts won't insist on severe allegations as they adopt a realistic attitude: if one party feels so strongly that a behaviour is "unreasonable" as to issue a divorce petition, it is clear that the marriage has irretrievably broken down and it would be futile to try to prevent the divorce. · Two years separation (if both parties consent) both parties must consent the parties must have lived separate lives for at least two years prior to the presentation of the petition this can occur if the parties live in the same household, but the petitioner would need to make clear in the petition such matters as they ate separately, etc. · Two years desertion Five years separation (if only one party consents) Scotland About one third of marriages in Scotland end in divorce, on average after about thirteen years. Actions for divorce in Scotland may be brought in either the Sheriff Court or the Court of Session. In practice, it is only actions in which unusually large sums of money are in dispute, or with an international element, that are raised in the Court of Session. If, as is usual, there are no contentious issues, it is not necessary to employ a lawyer. Divorce (Scotland) Act 1976. It is likely that the two year separation period required for a no-fault divorce with consent will be reduced to one year. United States Marital Status in the U.S. Divorce in the United States is a matter of state rather than federal law. In recent years, however, more federal legislation has been enacted affecting the rights and responsibilities of divorcing spouses. The laws of the state(s) of residence at the time of divorce govern; all states recognize divorces granted by any other state. All states impose a minimum time of residence. Typically, a county court’s family division judges petitions for dissolution of marriages. Prior to the latter decades of the 20th century, a spouse seeking divorce had to show cause and even then might not be able to obtain a divorce. The no-fault divorce "revolution" began in 1969 in California, and was completed in 1985 (New York is the last holdout ). However, most states require some waiting period, typically a 1 to 2 year separation. Fault grounds, when available, are sometimes still sought. This may be done where it reduces the waiting period otherwise required, or possibly in hopes of affecting decisions related to a divorce, such as child custody, child support, or alimony.” “Divorce law in our country belongs to an era that has long elapsed. But the laws have neither kept pace nor do they take into account the altered socio-economic realities of contemporary India. This is highlighted, once more, by the recent controversy surrounding grounds for divorce following Smriti Shinde's petition to the apex court urging it to consider granting unilateral divorce when a marriage has irretrievably broken down. The Supreme Court itself is ambivalent about where it stands on the matter. Under the Hindu Marriage Act or the Special Marriage Act, there are no provisions that recognise "irretrievable breakdown" or "irreconcilable differences" as grounds for granting divorce when it is not a mutually consensual decision. However, in 2006, the apex court granted divorce in the Naveen Kohli vs Neelu Kohli case, precisely because of irretrievable breakdown of marriage. But, early this year, another SC bench refused to entertain this argument in the Vishnu Dutt Sharma vs Manju Sharma case. It decided to stick to the letter of the law. This is as good a time as any for the laws governing divorce to be updated. In doing so, the issue must not be looked at through a moral prism alone. As Indians interface with the world and are exposed to new ideas and opportunities, there is bound to be a social churn, which impacts on personal affairs like marriage and family relations. Add to this the fact that more women today are economically more independent and assertive of their rights and choices. Divorce must be seen as a social reality, unfortunate though it might be, and not as a social evil. There are of course legitimate concerns that waiving the mutual consent clause to grant divorce in cases of irreparable marital breakdown would put women in a vulnerable position. But that cannot be used as an excuse to deny those who would genuinely benefit from easing the process of obtaining a divorce. As things stand, one has to go through a lengthy, convoluted and extremely stressful procedure to get a divorce. It's time that changed.” “Feelings of two human beings are involved in a couple’s married life. This could not be patched up by enforcement of law by courts. It is up to the individuals to mend themselves. A horse can be taken to water but it is the horse that should drink it. However, the law should not deny divorce if the marriage has really broken down. By forcing unity with a hammer in the hand, the law does not serve the sanctity attached to the institution of marriage by religions. If the relationship of husband and wife wrecks beyond repair, what is wrong in recognizing that fact and allow them to live separately. How can one compel a wife or a husband to continue to live with spouse if they have fallen apart? If so compelled they would have to lead miserable life.” Forget everything else , just imagine a scenario in a bedroom of a couple where a Judge is sitting and deciding about the “cruelty” performed or not among the couple. It must be sounding ridiculous and to avoid such embarrassment, Law Commission suggested the amendment in the divorce law itself through recent Report (Report no 217, November 2008): - III.RECOMMENDATION 3.1 It is, therefore, suggested that immediate action be taken to introduce an amendment in the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 for inclusion of ‘irretrievable breakdown of marriage’ as another ground for grant of divorce. 3.2 The amendment may also provide that the court before granting a decree for divorce on the ground that the marriage has irretrievably broken down should also examine whether adequate financial arrangements have been made for the parties and children I like to highlight some facts in countries, where NO- FAULT (effectively faster & peaceful) divorce exists: - · A decline in the rates of domestic violence (which is obviously of a very high concern in India) · These laws empower a man or woman in an “abusive marriage” and make it easier to leave and live separate · Means less conflict during divorce, which means less emotional harm to children whose parents, are divorcing (very much valid in my case) · Shortens the length of time it takes to obtain a divorce, which, in turn, shortens the amount of time spent in a stressful situation causing physical and mental damage to involved party (as in my case, I am having anti depression drugs as prescribed) · Financial settlements are based on need, ability to pay and contribution to the family finances, rather than on fault ( I am ready to accept any reasonable amount decided by judiciary) · Helps reduce the heavy caseloads of family courts (obviously valid for India) Our legislation is hesitating to amend the law. Nobody wants to disturb the “STATUS CO”. Its human nature to resist any kind of change. A Surgery is done only when that is needed, to avoid some greater pain or loss. If we remember, we in India had customs like “SOTI DAHO PROTHA” (burning the widow with dead husband), which now we can’t even imagine. As we are getting exposed to the world, we have to ratinolise our thought process and laws, by improvising any outdated system or rule. Staying apart for a considerable period itself points towards the death of the marriage, “Divorce” is just the legal nomenclature of that unfortunate incident. No divorce or even cause of any divorce will initiate because of the said amendment, but surely it will decrease the suffering of couple whose divorce already initiated. This amendment is only an addition to the grounds of divorce; no way it can hamper the relationship between a married couple. At the end we all must remember- LAW IS MADE BY THE PEOPLE LAW IS MADE FOR THE PEOPLE.
  23. I want to know that I have got information from Nagar nigam, Can I use it as an evidence in the court of law? What are the provisions related to that?
  24. The CPIO Mr. Negi of Department of Telecom is very positive person with RTI and supplying every information needed. The way he is writing letters are also appreciable. I want to thanks to Mr. Negi for favourable support to RTI.
  25. Aspirants to public office have to disclose their criminal links and income but when it comes to judges, the RTI Act threatens their ‘independence’. Why? PRASHANT BHUSHAN There was a time when the courts in India, particularly the Supreme Court, waxed eloquent about the “Right to Information”, being a part of the constitutionally enshrined right to speech and expression. Thus, while rejecting the government’s claim of privilege on the blue book containing the security instructions for the prime minister in Indira Gandhi’s case, the court said, “In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries.” Thereafter, while rejecting the government’s claim of privilege on the correspondence between the Chief Justice and the law minister on the appointment and transfer of judges, the court said, “Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing. The citizens have a right to decide by whom and by what rules they shall be governed and they are entitled to call on those who govern on their behalf to account for their conduct. No democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the government. It is only if people know how government is functioning that they can fulfil the role which democracy assigns to them and make democracy a really effective participatory democracy.” It was on the basis that the Right to Information is a fundamental right of people, that the court ordered that even candidates contesting elections would be obligated to publicly disclose information about their criminal antecedents and their income and assets etc. Yet, though the court’s general pronouncements on the Right to Information have been very liberal, it’s practices have often not been in conformity with the declared right. Thus, for example, the courts often follow the practice of asking the government and public authorities to file reports in sealed covers in court. These reports are then perused only by judges and often not given to the opposite parties or their lawyers. Often the orders and judgements of courts are based on their perception formed on the basis of these “confidential reports”, which is not only a violation of the right to information of the opposite party, but also in violation of the principles of natural justice, considered to be sacrosanct. The double standards of the courts on the Right to Information became even more obvious after the Right to Information Act came into force. Though the Act clearly applies to courts that are obviously included in the definition of public authorities, most High Courts did not even appoint Public Information Officers (PIOs) even months after the Act came into force. Some have still not appointed them, thus effectively denying the right to information to the people about the courts. Moreover, many of even those that appointed pios have framed their own rules that effectively deny information about administrative or financial matters. Thus, the Delhi High Court Rules provide that: » “5. Exemption from disclosure of information — The information specified under Section 8 of the Act shall not be disclosed and made available and in particular the following information shall not be disclosed: » Such information which is not in the public domain or does not relate to judicial functions and duties of the court and matters incidental and ancillary thereto.” Thus, information sought regarding the appointment of Class iii and iv employees by the High Court, who are reported to have been appointed on extraneous considerations, without any public advertisement or selection, was denied by the High Court, citing this rule. This rule means that no information will be given about the expenditures incurred by the High Court (from public funds) or about any appointments or transfers. This is in total violation of the rti Act that allows exemption from disclosure only on certain grounds specified in Section 8 of the Act and on no other ground. No public authority can refuse to disclose information that does not fall under the exemptions permissible under Section 8 of the Act. Rule 5 of the Delhi High Court rules clearly violates the Act and is thus liable to be struck down. Not only this, the High Court rules have increased the application fees from the normal Rs 10 to up to Rs 500. And the penalty for non-disclosure has been reduced from the maximum of Rs 25,000 as provided in the Act to Rs 500, which is hardly likely to deter any information officer from wantonly denying information. Thus every attempt has been made to dilute the Act and make it as difficult as possible for citizens to access information about the courts. They have been emboldened to do all this in the secure knowledge that to challenge such illegal rules, the citizen would have to approach the same courts. The Supreme Court has recommended to the government that so far as the Supreme Court is concerned, the decision of the Registrar General of the court should be final and not subject to any independent appeal to the Central Information Commission (CIC). They have further recommended that the Chief Justice should have the unfettered right to interdict the disclosure of any information, which in his opinion, might compromise the independence of the judiciary. The Chief Justice has already gone on record to say that even the disclosure of income and assets by judges or the formation of any independent disciplinary authority over judges, would compromise the independence of the judiciary. Going by this, it is obvious that no information about complaints against judges or about their incomes and assets would be available under the Right to Information. Thus while the Supreme Court decrees that even candidates aspiring to become public servants (MPs or MLAs) would be required to disclose their assets, when it comes to sitting judges, such disclosure would violate the independence of the judiciary! There cannot be a more glaring case of double standards. The track record of the courts on cases arising out of the rti Act is also not very inspiring. Even the occasional progressive orders of the CIC ordering various public authorities to disclose information have been stayed by the Delhi High Court and the matter remains pending for months and years thereafter. Thus, even the order of the CIC to merely peruse the correspondence between the then President and the prime minister on the Gujarat genocide of 2002 has been stayed by the High Court, though the Act specifically provides that no information will be withheld from the CIC. Similarly, the order of the CIC asking the upsc to disclose the marks obtained by candidates in the preliminary examination has also been stayed by the High Court, as have various other orders of the CIC. All this shows that while the courts have been liberal in making pronouncements about the citizen’s right to information in a democracy, and have also in cases implemented it with regards to others, they have been very reluctant to practice what they preach. The dictum appears to be that transparency and accountability is good for others, but the courts and judges are sui generis, and in their case transparency would compromise their independence. The wand of “Independence of the Judiciary” has always been waved by the judiciary to shield themselves from accountability, going to the extent of saying that not even an FIR can be registered against judges for any offence without the prior written permission of the Chief Justice of India. On top of all this, they enjoy the power of contempt, where they can send any person who accuses any judge to jail. It is not surprising then that the voices to make the judiciary accountable are growing louder and are now beginning to take the shape of a public campaign. The common people are beginning to realise that they are the main stakeholders in the judicial system and they must bring grassroots pressure on the authorities for them to reform the system. (Bhushan is a senior Supreme Court advocate) Tehelka - The People's Paper
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