7. After section 28 of the Special Marriage Act, the following sections shall be inserted, namely:—
28A. (1) A petition for the dissolution of marriage by a decree of divorce may be presented to the district court by either party to a marriage [whether solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 2010] on the ground that the marriage has broken down irretrievably.
(2) The court hearing a petition referred to in sub-section (1) shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years immedi- ately preceding the presentation of the petition.
(3) If the court is satisfied, on the evidence, as to the fact mentioned in sub- section (2), then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce.
(4) In considering, for the purpose of sub-section (2), whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months in all) during which the parties resumed living with each other, but no other period during which the parties lived with each other shall count as part of the period for which the parties to the marriage lived apart.
(5) For the purposes of sub-sections (2) and (4), a husband and wife shall be treated as living apart unless they are living with each other in the same household, and reference in this section to the parties to a marriage living with each other shall be construed as reference to their living with each other in the same household.
28B. (1) Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 28A, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would, in all the circumstances, be wrong to dissolve the marriage.
(2) Where the grant of a decree is opposed by virtue of this section, then,—
(a) if the court finds that the petitioner is entitled to rely on the ground set out in section 28A; and
(b) if apart from this section the court would grant a decree on the petition, the court shall consider all the circumstances, including the conduct of the parties to
the marriage and the interests of those parties and of any children or other persons concerned, and if, the court is of the opinion that the dissolution of the marriage shall result in grave financial hardship to the respondent and that it would in all the circum- stances be wrong to dissolve the marriage, it shall dismiss the petition, or in an appro- priate case stay the proceedings until arrangements have been made to its satisfaction to eliminate the hardship.
28C. The court shall not pass a decree of divorce under section 28A unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.
Explanation.— In this section, the expression “children” means—
(a) minor children;
(b) unmarried or widowed daughters who have not the financial resources to support themselves; and
(c) children who, because of special condition of their physical or mental health, need looking after and do not have the financial resources to support themselves.’
8.In section 40A of the Special Marriage Act, in sub-section (1), after the word and figures “section 27”, at both the places where they occur, the words, figures and letter “or section 28A” shall be inserted.
STATEMENT OF OBJECTS AND REASONS
1. The Hindu Marriage Act, 1955 was enacted on the 18th May, 1955 to amend and codify the law relating to marriage among Hindus. Similarly, the Special Marriage Act, 1954 was enacted on the 9th October, 1954 to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce. The provisions of the said Acts have proved to be inadequate to deal with the issue where there has been irretrievable breakdown of marriage and therefore a need has been felt for certain amendments therein.
3. Subsequently, the Hon'ble Supreme Court in Ms. Jorden Diengdeh vs. S.S. Chopra (AIR 1985 SC 935) had pointed out the necessity to introduce irretrievable breakdown of marriage and mutual cosent as grounds for grant of divorce in all cases. Similarly in Naveen Kohli vs. Neelu Kohli (AIR 2006 SC 1675), the Hon'ble Supreme Court recomended to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for divorce.
4. Further, the 18th Law Commission of India suo motu took up the mater and in its 217th Report titled 'Irretrievable Breakdown of Marriage —Another Ground for Divorce' presented to the Government in March, 2009 recommended that 'Irretrievable breakdown of marriage' should be incorporated as another ground for grant of a decree of divorce under the afore- said Acts.
5. Having regard to the recommendations of the Law Commission of India and the observations of the Hon'ble Supreme Court as aforesaid and the demand from various quarters, it is proposed to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 so as to provide for irretrievable breakdown of marriage as a ground of divroce thereunder subject to certain safeguards to the wife and affected children.
6. At present, a petition for grant of a decreee of divorce on the ground of mutual consent could be presented by both the parties to the marriage together before the court under sub-section (1) of section 13B of the Hindu Marriage Act, 1955 and similarly under sub-section (1) of section 28 of the Special Marriage Act, 1954. Under sub-section (2) of section 13B and that of section 28 respectively, the parties have to move a motion jointly not earlier than six months after the date of presentation of the petition referred in sub-section (1) and not later than eighteen months after the said date for the said purpose. It has been observed that in several cases one of the parties do not turn up for filing the motion jointly with the other party under sub-section (2) of section 13B of the Hindu Marriage Act, 1955 or under sub-section (2) of section 28 of the Special Marriage Act, 1954, as the case may be, leading the party desirous of obtaining a decree of divorce hapless and remediless. In order to mitigate such hardships and to allow divorce in cases of complete failure of such marriages, it is proposed to amend sub-section (2) of section 13B of the Hindu Marriage Act, 1955 and sub-section (2) of section 28 of the Special Marriage Act, 1954, respectively, by doing away with the aforesaid condition of moving motion subsequently.
7. In case the wife happens to be the respondent in respect of a petition for grant of a decree of divorce on the ground of irretrievable breakdown of marriage under the proposed new section 13C of the Hindu Marriage Act, 1955 or under the proposed new section 28A of the Special Marriage Act, 1954, as the case may be, the wife is entitled to oppose the grant of a decree of divorce on the ground that a dissolution of the marriage will result in grave financial hardship to her. Similarly, provision has been made to restrict grant of a decree of divorce on the ground of irretrievable breakdown of marriage if the court is satisfied that adequate provision for the maintence of children born out of the marriage has not been made consistently with the financial capacity of the parties to the marriage.
8. The Bill seeks to achieve the above objects.
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