– with inputs from Deeksha Gehlot

Marriage is a private affair; a Hindu couple does not need to go to any court to get married. However, when these two individuals decide mutually to part, they need court’s approval.

“We have filed for divorce by mutual consent but it’s taking too long. We were asked to find a way to work out differences by the court, which hasn’t worked. Given how expensive rents are in Mumbai, I am constrained to live in the same flat”, says a husband seeking a legal opinion online.

On 26 August 2013, Rajya Sabha passed the Marriage Laws (Amendment) Bill, 2013 to do away with the waiting period of six months for moving a joint petition of second motion after the first one for grant of divorce by mutual consent. The bill is still pending in the Lok Sabha. Currently, divorce by mutual consent requires three conditions: (a) living apart for one year; (b) the first motion for divorce should be in the form of a joint petition, and; (c) after the lapse of a six month cooling period, there should be a second motion in the form of a joint petition.

The one year separation requirement causes many complications. The couple must either plan their separation a year in advance or be stuck in an unwanted marriage for a year. Adjournment culture adds further to the unwanted delay so much so that at times it is used by one party to harass the other in order to prohibit the other from being able to remarry. This mostly affects women adversely as due to biological differences, women have a shorter reproductive age as compared to men which leaves women with a lesser bargaining power. Also a full year gets wasted in which both parties (wife and husband) have to forego opportunities with other possible partners.

The Marriage Laws (Amendment) Bill, 2010 was seeking doing away with the long waiting period before divorce by mutual consent by amending section 13B of Hindu Marriage Act. However, the Standing Committee has always favoured a longer duration for divorce. The objectives as stated or implied by the committee are: (a) marriage as an institution must be protected and divorces must be discouraged; (b) a divorce must involve judicial intervention to protect the interest of women as women have less bargaining power, and; (c) divorce by a mere deed escalates the probability of deception among the parties.

The first reason that marriage as an institution must be protected is a moral opinion. The State should refrain from making such moral assumptions as different individuals have different moral opinions. To make a law based on a moral opinion takes away  our individual liberty of practicing one’s morality. Since marriage is a private affair, there should be as little regulation as possible.

With respect to the second reason, judicial intervention has been justified on the ground of women’s protection as women have  lesser bargaining power. However, as explained above, a woman is often worse off due to delay in getting a divorce. Clearly, women would be better off if they could get divorce by just signing a divorce deed instead of going through the long legal procedures.

The third reason reveals the skepticism to deception in case of a divorce by deed. The Indian Contract Act has provisions to deal with fraud, deception etc., where one of the parties has allegedly expressed consent under duress or undue influence. Similarly, there could be skepticism to unconscionable terms of divorce, however, this skepticism is not unique to marriage; it exists in all forms of contracts where one of the parties is weaker than the other. There can be a safeguard in the form of registration or signing before a legal authority to ensure that the parties are aware of what they are doing. Family and friends too can provide support to individuals while negotiating.

The Marriage Laws (Amendment) Bill, 2013 has provided some relief by adding the following two provisions to section 13B of the Hindu Marriage Act:

  1. The court has the discretion of reducing or completely waiving off the period of six months for another joint petition
  2. If one of the parties does not appear in the court within three years of the first joint petition then court may waive the requirement of moving a (second) motion by both the parties

The state does not choose who you will marry. The state does not choose a ceiling age for you to get married by. The state does not choose why you have to get married. So then why should you be at the mercy of the state when choosing to separate?