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  1. Forming Co Operative society now fundamental right With status of local self Government, under ambit of RTI act With the enactment of the 97th amendment to the Constitution of India and its inclusion in Part IX of the Constitution, formation of cooperative societies has become one of the fundamental rights of an Indian citizen. Cooperative societies have thus come under the ambit of The Right to Information Act. Cooperative societies normally include cooperative banks, credit societies, sugar factories, distilleries, handloom-power loom factories, distilleries, milk producing societies, water supply societies etc. Henceforth, all such institutions will have to appoint public information officers, appellate authorities and comply all the provisions of the RTI act. This is the most revolutionary event in the history of our country in the recent past. Normally there are three sectors of industries; Public, private and cooperative sectors. The first one is wholly owned by a state or the central government and the governments have complete control over its investments and management and it is accountable to the governments as well as to the public. Although the private sector abides by the laws, rules and regulations of the governments it is not answerable or accountable to the governments or the public for the losses/profits or management. It is accountable only to its owners or shareholders as per the law of the land. The cooperative sector was a blend of the public and private sectors. So far, it was enjoying the facilities available to the public sector such as loans, share capital from the state etc. but was not accountable to the state or the public. With the 97th amendment, the scenario has changed and the cooperative sector is now accountable to the state and the public. Article 19 of the Constitution of India protects certain fundamental rights of the citizens. All citizens have the right to freedom of speech and expression, to assemble peaceably and without arms, to form associations or unions, to move freely throughout the territory of India, to reside and settle in any part of the territory of India; and to practise any profession, or to carry on any occupation, trade or business. Now forming a cooperative society is also fundamental right. Not only that , as per article 43B of Part IV it is now the duty of the States to promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies to encourage economic activities of cooperatives which in turn help progress of rural India. Part IX of the Constitution consists local self-governments. Part IX is about panchayats, Part IX B is about municipalities and now with insertion of Part IX C, cooperative societies have acquired the status of local self-governments. Correspondingly, cooperative societies have come under the RTI Act. So far, there was no clarity about the applicability of the RTI Act to cooperative societies. Several information commissions and courts had given contradictory verdicts on this matter. Cooperative societies were out of the ambit of the RTI Act because it was not an ‘authority’ or ‘body’ or an ‘institution’ of self-government established or constituted by or under the Constitution. Hence, attempts to bring a cooperative society under the RTI Act, claiming it to be an ‘institute’, a ‘body owned, controlled or substantially financed by notification issued or order made by the appropriate Government’ failed. In addition, authorities of these institutes always took the stand that they did not come under the RTI act. In reality, considerable part of the country’s economy is occupied by the cooperative sector. It is said that about 1/6th of this part is of Maharashtra. A major part of Maharashtra politics is also influenced by cooperative sector. The scale of illegalities, scams and corruption in this sector is also high. The cooperative sector including banks and societies block substantial government funds going into hundreds of crores. Anarchy in this sector is so high that current statistics of cooperative societies in the state and the country are not easily available. The statistics of the department of cooperative societies of Maharashtra in 2009-10 show that there were 2,18,320 cooperative societies in Maharashtra and the total membership of these societies was five crores forty-two lakhs. One estimate of the number of societies is at about 2,30,000 with a membership of about six and half crores. For the entire country, this number could go up to six and half lakh societies with thirty crores members. A giant sector such as this was uncontrolled and unaccountable till now. One can hope that this sector will move in a positive direction after the 97th amendment to the constitution. After the amendment was enacted, a period of one year was given to the States to amend as well as repeal existing provisions of law to bring in line with the new provisions in the Constitution. Usually, State Assemblies approve such amendment. However, as the assembly was not in session, the Government of Maharashtra introduced an ordinance on 15 February 2013 and thus these amendments have now become law. The highlights of the Maharashtra Cooperative Societies Act and Rules after amendments are: (i) Incorporation of cooperative societies on the principles of voluntary formation, democratic member control, member economic participation and autonomous functions; (ii) Conduct of election of a cooperative society by an independent electoral authority; (iii) A fixed term of five years for the office bearers of the cooperative society; (iv) Supersession of Board of cooperative society for a period of not exceeding six months; (v) Independent professional audit of the cooperative societies; (vi) Convening of the General Body meeting of every cooperative society within a period of six months of the close of the financial year; (vii) Access to every member of the society to the books, information and the accounts of the cooperative society; (viii) Filing of the returns by every cooperative society within six months of the close of every financial year; (ix) Free, fair, impartial and timely elections of cooperative societies by independent body . (x) Audit of the cooperative societies to be carried by the auditors from the government approved panel of auditors or firms; (xi) Maximum number of 21 Directors to be applicable to all cooperative societies irrespective of their size with two seats reserved for women; and (xii) Co-opted members not to be eligible to be elected as office-bearers of the Board. Also there are provisions of penalty for consistent defaults, acting against the interest of the institution, deadlock in the board of directors, not ordering elections within specified time, corruption, irregularities in duty, deliberately giving false information, disobeying orders of authorities etc. P.S. Before 1992, panchayats and municipalities were also not bodies established by or under the Constitution. However, that did not mean that there were no panchayats or municipalities. These institutes as well as laws were very much in existence. But due to the autonomous status. their functioning was arbitrary. They did not acquire the status and dignity of viable and responsive people's bodies due to varied reasons including absence of regular elections, prolonged supersession, insufficient representation of the weaker sections etc. Hence, to give certainty, continuity, and strength to panchayat raj with 73rd amendment, Part IX was inserted in the Constitution. Later as Urban Local Bodies were not able to perform effectively as vibrant democratic units of self-government, with the 74th Amendment, Part IX B was inserted to give municipalities a status and dignity. Now with the 97th Amendment, Part IX B has been inserted to give cooperative societies a status of local self-government. As per RTI Act section 2 (h) "public authority" means any authority or body or institution of self-government established or constituted— (a) by or under the Constitution; (b) by any other law made by Parliament; © by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and now as per section 2 (h) (a) of RTI act, Cooperative Societies have become an “authority” or “body” or “institution of self-government” established or constituted by or under the Constitution and hence are under the ambit of the RTI Act.
  2. akhilesh yadav

    J& K amends RTI Rules - public protests

    Govt amends RTI Rules Reported by Umer Maqbool in greaterkashmir.com on August 31, 2012 Govt amends RTI Rules Lastupdate:- Fri, 31 Aug 2012 18:30:00 GMT GreaterKashmir.com Srinagar, Aug 30: Jammu and Kashmir Government Thursday did away with the detailed Rules guiding the implementation of Jammu and Kashmir Right to Information Act- 2009. The move comes at a time when Jammu and Kashmir Government has been making repeated claims about ensuring transparency and accountability in governance by a strong RTI Act. The General Administration Department today notified new RTI Rules 2012 to replace RTI Rules 2010. The new Rules don’t talk about the procedure to be adopted if the orders of the State Information Commission were not implemented by public authorities; formation of different wings like Registry, Legal Cell, Monitoring and Reporting Wing, Right to Information & Transparency Institute (RITI); procedure for filing First Appeal and filing of counter before First Appellate Authority. The easiest method of filing RTI application on non-judicial stamp paper has also been omitted from new Rules and new guidelines say that fee can be paid by way of cash against proper receipt, demand draft, bankers cheque or Indian Postal Order. RTI activists have decried the move, terming it as clipping the wings of State Information Commission and weakening the RTI Act. “The framing of new Rules is worrisome because there was considerable amount of detail in the previous set of RTI Rules on implementing the Act,” Venkatesh Nayak, Coordinator, Access to Information Program, Commonwealth Human Rights Initiative, told Greater Kashmir over phone. “Now there is no guidance on how different matters- like functioning of Commission Secretariat, procedure to be adopted in case of non-compliance of Commission orders and other vital matters- will be handled,” he said. “The Information Commission could take action under the old Rules if a public authority did not comply with its orders. The new rules delete this provision. So the appellant will have no option but to file a writ in J&K High Court to seek enforcement of an order of the Information Commission. How many people can avail this expensive and time consuming option is a big question,” he added. Venkatesh said that several problematic areas have been created by replacing the old Rules. “The old Rules contained several provisions about the structure and the working of the Information Commission- such as division of labour, working hours, vacations etc. The new Rules delete all these provisions,” he added. Convener of Jammu and Kashmir Right to Information Movement, Dr. Raja Muzaffar Bhat, has castigated the state Government for replacing the old RTI Rules. “This move is against the basic spirit of transparency. How can Government replace the Rules without taking the stakeholders on board?” Bhat asked. “This has been done just to stop the Commission from exercising its powers and it has dented the oft-repeated assertions of Government about ensuring transparency in governance by RTI Act,” he said, adding that this move dilutes the authority of the Commission. However, the RTI activists have welcomed reduction in application fee from Rs 50 to Rs 10.
  3. As reported by Prafulla Marpakwar in timesofindia.indiatimes.com on 17 February 2011: 'Centre must add purpose clause to RTI Act' - The Times of India 'Centre must add purpose clause to RTI Act' MUMBAI: Given the doubts raised by a section of chief ministers, the Centre is planning to amend the Right to Information (RTI) Act to curb its misuse. "Our information is that a group of chief ministers has approached the Centre for amending the RTI Act. In several cases, it was used to settle personal scores by rival businessmen, builders and politicians," a senior information commissioner told TOI on Wednesday. The information commissioner said that when the Congress-led Democratic Front government promulgated an ordinance in 2004 to provide for right to information, it was specifically mentioned that a person seeking information will have to state in the application the purpose for which the information is required. When the Centre enacted the RTI Act in 2005, this particular clause on purpose was removed. , as a result, now a person can seek information on any subject, without mentioning the purpose for which he requires the information. "We feel that If the Centre wants to curb misuse, it must include the purpose clause in the act, else, we will not be able to stop misuse of the legislation. It will have to move an amendment bill in the parliament for the purpose," he said. The information commissioner said that in Mumbai, the maximum number of applications are filed by the same group of persons. "We are bound to provide information but we don't know how it will be used," he said. In Pune, the commissioner said, of the 2,500-odd appeals pending before the information commission, 800 are filed by 30 persons, while of the 2,200 applications filed under the RTI Act, 1,400 are by one person. "If we know the purpose for which he requires the information, we can decide his case on merit," he said. If the Centre is serious, the commissioner said, it should ask the states to follow Karnataka government's example. "Karnataka has made it clear that an application will not have more than 250 words and that in one letter the applicant will ask questions only about one issue. This has ensured that only genuine applicants seek information," he said. Secondly, the commissioner said, the act should allow for punitive action against mala fide applicants. "While hearing the appeals, we find that the intention of an applicant is mala fide. Under the existing law, we have no power to impose a fine, in my opinion, the RTI act should be suitably amended for the purpose," he said. Information is provided free of cost to below poverty line (BPL) applicants. In a recent case, a BPL applicant sought information on a project, which comprises 50,000 pages A non-BPL person would have had to pay for these many page. "It seems that someone was using him to get the information free of cost. We don't have the budget to provide free information for BPL applicants. Special provision should be made for the purpose," he said.
  4. Atul Patankar

    Amendments to RTI Act on the anvil

    As reported by Vidya Subrahmaniam at thehindu.com on November 14, 2009 The Department of Personnel and Training (Ministry of Personnel, Public Grievance and Pensions) has admitted that the government is considering amendments to the Right to Information Act, 2005. The admission, which came at a meeting between RTI activists and DoPT Secretary Shantanu Consul on Saturday, ended the suspense over whether or not the government was contemplating amendments to the RTI. Speculation in this regard started following a meeting that the DoPT had with Information Officers on October 14 where a proposal for the amendments was formally put on the table. However, the government refused to confirm or deny the move, leading to a growing anxiety in RTI circles. Significantly, Mr. Consul assured the delegation led by Aruna Roy of the National Campaign for People’s Right to Information (NCPRI), that the amendments will only be introduced after hearing the views and objections of civil society groups. He said the department would initiate a “transparent and consultative process,” including putting up the draft amendments on the DoPT website, to enable public and civil society participation in their implementation. Mr. Consul also said the amendments would not go through if civil society groups were able to convince the government that they were not necessary, and the purpose for which they were being considered could be met in other ways. Earlier in the day, hundreds of activists from the NCPRI and other organisations gathered at Jantar Mantar to warn the government against tinkering with the RTI Act, 2005. The delegation that met Mr. Consul presented him a letter containing their misgivings over the proposed amendments. The letter was signed. among others by Ms. Roy, Nikhil Dey and Shekhar Singh of the NCPRI and Annie Raja of the National Federation of Indian Women. The signatories said they had apprehensions that the government was moving towards amending the RTI and cited as evidence the October 14 meeting between the DoPT and Information Officers. The RTI activists also wrote to the Prime Minister on October 20, which was signed by dozens of public-spirited citizens. The letter argued that the proposed amendments — envisaging exemption from disclosure for official discussions and consultations (previously known as file notings) and prohibition of frivolous and vexatious complaints — far from strengthening the Act, as promised by the President in her June 4 address to Parliament, would in fact emasculate the Act. The letter quoted two nation-wide studies, “one done under the aegis of the government,” to make the point that RTI was constrained, not by issues being considered for amendment such as frivolous complaints and file notings, but by inadequate implementation, lack of trained staff, and poor management. There was no suggestion in either of the studies that RTI work was hampered by “frivolous or vexatious” applications or by disclosure of “file notings,” it said. The letter said: “This government gave its citizens the RTI Act, and there has been no crisis in government as a result of its enactment. In fact… its use by ordinary people is helping change its (the country’s) image to that of an open and receptive democracy. An amendment in the Act would be an obviously retrograde step, at a time when there is a popular consensus to strengthen it through rules and better implementation...” Source: The Hindu : News / National : Amendments to RTI Act on the anvil
  5. I want to thank first the creator and administrators of this website for providing such a lively platform for RTI debate and sharing RTI related queries. I want to contribute to spreading awareness for this act too and do my bit as a participating citizen. I have created a Facebook group labeled "Say No To RTI Amendment" to invite friends activists and concerned citizens to wage a cyber campaign against the proposed RTI amendments by the govt. So please join this group if you feel this will spread awareness to your friends about RTI faster abd better. SAY NO to RTI Amendment | Facebook Thanks, Shailen
  6. Govt mulls more teeth to RTI Act as reported by Neha Shukla, TNN, LUCKNOW: Jun 11, 2010 RTI Act might be set for an amendment. GoI’s department of personnel and training (DoPT) is examining a proposal regarding amendment to the Right to Information (RTI) Act in order to make it more effective. CPIO and under secretary (RTI), DoPT, New Delhi, RK Girdhar, in response to an RTI query by Delhi-based activist Subhash Chandra Agrawal, has said that DoPT is considering making certain amendments to the Act. In future the Act might include a new section, 29A, which will empower the State Information Commissions (SICs) to make regulations. Besides, there might be an amendment to section 2 so as to remove difficulty in ascertaining whether a particular NGO be treated as a public authority or not, and an amendment to section 4 so as to enlarge scope of suo motu disclosure. Moreover, amendment to section 7 (to avoid frivolous and vexatious requests) and amendment to section 8 (to slightly modify provision about disclosure of cabinet papers in order to ensure smooth functioning of government and to take care of the sensitivity of the office of CJI), are also being considered. However, the department will make the amendments only after consultation with the stakeholders, said the CPIO. On April 1, the department had uploaded on its website a questionnaire inviting suggestions from several quarters like civil organisations, information commissioners, public authorities, individuals, NGOs, etc, towards improving the implementation of the Act in the country. The department said it received responses on the questionnaire from 138 respondents. Govt mulls more teeth to RTI Act - Lucknow - City - The Times of India
  7. Online campaign The Hindu Saturday, May 10, 2008 The Hindu : Karnataka / Mysore News : Online campaign Campaign or Protest against Controversial Amendment / Mutilation of Karnataka RTI Act 2005 Petition Karnataka - Mysore Staff Correspondent MYSORE: Syed Tanveeruddin, member of the Karanji and Siddharthanagar Tax Payers' Association, Mysore, has launched an online campaign against the "controversial and ambiguous" amendments made to the Karnataka Right to Information Act, 2005. "Even before this amendment, the State officials used to hunt for a clause under which they could deny information. We will continue our fight against the government's action until the changes in the Act are not dropped," he said in a press release here.
  8. 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.
  9. 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.
  10. Atul Patankar

    RTI amendment this session?

    As reported by Rashme Sehgal at The Asian Age on 30 July, 2009 July 29: The UPA government is planning to bring in a proposed controversial amendment to the Right to Information Act in the current session of Parliament. The proposed amendment is aimed at deleting "file notings" which many in the government believe were never part of the RTI Act as passed by Parliament. The ministry of personnel is reported to have readied the amendment and a stronger UPA government is confident it will be able to get it passed. Senior sources in the law ministry point out that details of the amendment have not reached them. But activists monitoring the RTI assert that past precedent has shown that the government often prefers to hold "informal consultations" around a controversial draft and then introduce it quietly in Parliament. Minister of state for personnel and public grievances Prithviraj Chavan’s recent statement in Parliament last week that the government does indeed plan to amend the act has further confirmed the misgivings of different civil society organisations. Mr Chavan had said in a written reply, "It is proposed to review the number of organisations in the second schedule to the RTI Act 2005 and make rules for more disclosures of information by public authorities." Shekhar Singh of the National Campaign for People’s Right to Information, who is closely associated with bringing out an independent report monitoring the functioning of RTI along with the Tata Institute of Social Sciences and the Centre for Studies of Developing Societies, believes the pressure to amend the act has come from both MPs and bureaucrats. He believes several parliamentarians had during a parliamentary committee meeting expressed dissatisfaction at the functioning of the act. "While speaking before a parliamentary committee, many MPs claimed they were upset at their inability to access information pertaining to the functioning of state legislatures. Nor, under the act, can Member of Parliament access information pertaining to an individual officer," Mr Singh pointed out. The bureaucracy has also expressed dissatisfaction on some key aspects of the act. Their point of view was reinforced by the recent findings of the Administrative Reforms Commission report which has complained against increasing numbers of applications being of a "vexatious" and "frivolous" nature. Mr Singh refutes that the large number of applications have overstretched the public information officers (PIOs). "The deluge of RTIs is restricted to only a few ministries. On an average, 70 per cent of the 72 PIOs that have been appointed have received only 10 applications in their concerned department," he said. "Rather than sit down and analyse what are the bottlenecks in each department and ironing those out, a blanket ban on file notings will not resolve the issue," Mr Shekhar Singh added. A similar exercise was proposed in 2006 but was kept in abeyance when Congress president Sonia Gandhi is believed to have advised the government that there should be wider consultations among the stakeholders to allow the controversy over the file noting provisions to be sorted out. Sources in the ministry of personnel however maintain that neither the group of ministers nor the parliamentary standing committee had intended to include the words "file notings" in the definition of "information" given in Section 2(f). Central Information Commissioner O.P. Kejriwal says, "Information minus the notings amounts to taking the life out of the RTI Act." Source: The Asian Age - Enjoy the difference
  11. sidmis

    Panel moots changes in RTI Act

    Panel moots changes in RTI Act as reported in Express Buzz, ENS, 13 Oct 2008 KOCHI: In an attempt that may thwart the very purpose of the Right To Information Act, the Lok Sabha Committee of Privileges submitted a report before the Lok Sabha Speaker, recommending for amendments, including that the decision taken by the House/Speaker may not be open to review by the Chief Information Commissioner. The report on `Requests from Courts of Law and investigating agencies, for documents pertaining to proceedings of House, Parliamentary Committees or which are in the custody of the Secretary-General, Lok Sabha, for production in Courts of Law and for investigation purposes’ was laid on the table on April 30, 2008. The 97-page report was submitted by the Committee chaired by V Kishore Chandra S Deo after studying the procedures followed in 35 countries. The Committee suggests four major amendments. They are - it may be made the incumbent upon an applicant requesting for information/document which come under the jurisdiction of the House to state the reasons for which the information/ documents are required. If in the opinion of the Speaker the information sought for have the potential to call in question the proceedings of the House or of any committee of the House, in any court he may be empowered to refer such a request to the Committee of Privileges for examination and report. Panel moots changes in RTI Act=
  12. Noting that Centre's decision to bring in amendments to the Right to Information Act was yet to be effected, the Central Information Commission (CIC) has ruled out disclosure of any related information till such amendments were actually adopted. "... A decision on a Cabinet note cannot be treated as complete unless the matter of the decision has been completed, which in this case would mean moving an amendment to the RTI Act as per the Cabinet decision. "Decisions of the Council of Ministers, the reasons thereof and the materials on the basis of which decisions were taken can not be disclosed under the RTI Act unless the decision has been taken and the matter is complete or over," Chief Information Commissioner Wajahat Habibullah said. The order came after the Commission, in response to a RTI plea seeking details on Cabinet's decision over proposed amendments to the two-year-old legislation, had called upon Department of Personnel and Training (DoPT) to bring in all relevant documents for its perusal. The application filed by Magsaysay awardee Aruna Roy and RTI activist Shekhar Singh had asked for information on reasons and materials taken into account by the Cabinet to amend the transparency law, while relying upon press reports and statements of ministers to assert that such a decision had already been taken. Taking into consideration the government's position that the proposed amendment bill was yet to be considered by the Parliament, the Commission in its order of October 18 had asked DoPT to produce all relevant records for its perusal. The Commission, which went through the government records as presented before it in a sealed cover on November five, however, observed that from the available documents and files it was clear that the Council of Ministers had approved of the government's action to move an amendment to the RTI Act. In its order, the CIC referred to provisions of the RTI law to claim that disclosure of information pertaining to decisions of Council of Ministers could be allowed only when the matter concerned was completed. Earlier, in their submissions in support of their RTI request, the applicants, represented through senior counsel Prashant Bhushan, had contended that once a government decision was taken, information on the same could not be restricted. Where the government, for reasons extraneous to the Cabinet decision, decides not to table the amendment or is prevented from tabling the amendment, that is a subsequent and distinct matter, and cannot be taken as a ground for refusing access to information, the activists' had argued in their applications. NEW DELHI, NOV 13 (PTI) outlookindia
  13. Rakesh Vetkar

    central information commission

    How to appeal to central information commission
  14. By David Rose Tuesday, 20 February 2007 An MP has pledged to lead a Commons revolt over a controversial attempt to exempt Parliament from the Freedom of Information Act. A private members bill, introduced by former Tory chief whip David Maclean, would, if it becomes law, prevent journalists and others from using FoI requests to obtain information contained in MPs' correspondence with government departments and other public bodies. But Norman Baker, the Liberal Democrat MP for Lewes, has vowed to oppose the bill when it comes before the Commons for its crucial Report Stage and Third Reading on 20 April. Maclean's Freedom of Information (Amendment) Bill has already been given an unopposed Second Reading and has been approved by 19-member committee drawn from MPs in all parties. Opponents can attempt to block Private Members Bills at the Report Stage using filibustering tactics. To prevent Baker and other critics from talking out the two-clause bill, Maclean may be forced to muster 100 MPs in order to force a closure vote and secure the Commons' approval to be sent to the House of Lords. Maclean has been impressed by the amount of support he has secured. Among the MPs who spoke up for the Bill in committee were Labour MPs George Howarth (Knowsley North and Sefton) Kevan Jones, (North Durham) and Fraser Kemp (Houghton and Washington East). Liberal Democrat MP Nick Harvey (North Devon) also raised no objection. Harvey, chairman of the House of Commons Commission, told MPs: "Requests under the FoI Act are becoming increasingly intrusive, particularly on issues such as t he additional costs allowance. In that respect, they are getting into very personal realms - they are going behind the front door into Members' homes." While the Government insists the Bill must be decided on a free vote, Tony Wright, Labour chairman of the Commons Public Administration Committee, has accused the whips of collaborating to ensure the Bill gets approved. Constitutional Affairs minister Bridget Prentice has also indicated where her own sympathies lie. "We should not allow the 2000 Act to disrupt the vital relationship between and MP and his or her constituents, and the time has come to address the issue," she told MPs. Baker told Press Gazette: "The Government is backtracking on the FoI Act. "This is a throw back to the 1950s when Parliament was a private members' club. "If this is passed we will have the absurd position of exempting from the legislation those people who passed the law." Baker recently won a case before the Information Tribunal which forced the disclosure of more details of MPs' travel expenses. Press Gazette - UK Journalism News and Journalism Jobs
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