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To, The Hon’ble Minister of Parliamentary affairs,
Sub: Prayer to constitute a Joint Parliamentary Committee (JPC) to probe suspicious behavior demonstrated by the Government during drafting, pushing amendments under pressure and not adhering to the established process of following principles of natural justice while framing of the Marriage law amendment bill 2010.
Hon’ble Minister,
We wish to bring forth to your notice the brief summary of facts
The Marriage law amendment bill 2010 has been mired in a lot of controversy and it is strongly believed that the government is acting under severe pressure from a handful of women’s groups to include extremely ultra vires amendments in this proposed legislations. We, through this petition would like to bring to the notice of your good offices the alleged violations in the law making process, that are established in a democracy. We further pray the immediate formation of a Joint Parliamentary committee to probe these alleged violations as have been highlighted below.
The introduction of the law was due to political pressure
The law commission had made recommendations on irretrievable breakdown of marriage way back in 1978. The current marriage law amendment bill is essentially a copy of the same recommendations and copies the same sentences including the commas and the full stops. But here comes the most startling question of all. What prompted the government to suddenly bring in these amendments 32 years after it was first conceived?
There appeared a news article in the Indian press on Sept 19th 2010 titled “Shinde’s daughter pleads for change in divorce law” and below are the excerpts from the news article.
“The petitioner (Smrithi Shinde) and her husband, Mumbai resident Sanjay Paharia, have been living separately since January 2005. Under Section 13B (1), the parties had jointly moved a petition for divorce by mutual consent in May 2007. Six months later, the petitioner wished to obtain a decree of divorce under Section 13B (2) of the Act. The husband chose to remain absent from court. This became a ground for the Bombay High Court to set aside the divorce decree obtained by the wife, on the ground that the husband’s absence indicated withdrawal of consent. To make matters worse, the Supreme Court dismissed the petitioner’s appeal, as lately as May 11 this year.”
This bill was introduced by the then minister of law and justice immediately after Smrithi Shinde’s petition was dismissed by the Supreme Court. Mrs. Smriti Shinde is the daughter of a certain serving union minister and it is alleged that this bill was immediately created and tailored just to get this Union Minister's daughter a quick divorce from her estranged husband. It is obvious that since Mrs. Shinde who belongs to an elite class cannot wait forever for a divorce like the common people of India, this amendment has been introduced by the law minister himself and has been driven with ferocious urgency unlike any of the other amendments and recommendations. We pray that the facts of the introduction of the bill 32 years after being recommended, immediately after a certain serving union minister’s daughter had exhausted all her options for getting a divorce cannot be termed as mere coincidence.
The introduction of the Ultra Vires amendments under severe pressure from some aggressive women’s groups
The constitution of India guarantees equal rights to both men and women under article 14 of the constitution. Further article 15(3) cannot be used to overrule article 15 of the constitution to deny men their basic rights of expression. The Government of India or the Ministry of Law and Justice cannot act above the rights guaranteed to men and women under article 15 of the Indian constitution and introduce ultra vires amendments with little debate.
The Media has repeatedly reported that the Government is under severe pressure from a very small set of aggressive women’s organizations that are demanding draconian and ultra-vires legislations to be inserted into this bill under the guise of women’s empowerment. From media reports it has appeared that the amendments being forced are completely ultra-vires from a legal perspective and heavily favors the wife in event of a divorce with. Further the media reports also suggest that the law is brought in with little debate and ferocious speed under pressure from the same set of women’s organizations. Given the ultra-vires nature of the amendment, there seems to be a concerted effort to get this bill passed very quickly without a wider national debate with multiple stakeholders. Given the seriousness of the law and the 10,000 year old Hindu family that it intentions to partition, this law has not been vetted by any legal luminary for having a balanced approach to both genders where neither of the genders is put at a severe disadvantage at the time of divorce.
Below are the Ultra-vires Sections of the Marriage Law amendment Bill 2010 and biased law making process
- When the husband files for a divorce the proposed law empowers the wife to oppose the divorce at any point of time based on her financial needs. However if the wife has filed for divorce, the law shockingly restrains the husband from opposing the divorce under any grounds. This it takes away the fundamental right of the husband to defend his marriage in case his wife has decided to go in for divorce. Poor, Paralyzed, Handicapped and husbands who have fallen out of love will have no way to defend their divorces should the wife choose to file.
- While the western divorce laws divide marital assets equitably amongst partners based on multiple factors like duration of marriage, contribution towards marriage and behavior of the partners, the government under pressure from women’s groups has introduced severely biased amendment by which only wives will be legally empowered to annex 50% of the husbands property that has been acquired both before and after the marriage. The proposed law is completely silent on the property of the wife and makes no mention of how the assets of the wives will be divided based on duration, contribution and behavior during the marriage of either partners. Husbands who are poor, paralyzed, handicapped or have simply fallen out of love will also have to part with half their property and will have no right on the property from the wife and neither will be they legally allowed to oppose their divorces when the wife files for a divorce.
- This law only talks about women’s rights and has no considerations whatsoever for men. It talks about responsibilities of men but does not talk about responsibilities of women.
- The opinion of the law commission on the legal validity of these amendments was also not sought by the government before it introduced and amended these ultra vires section with surprising speed. The need for an open national debate on these amendments was also ignored.
- Even though some Men’s rights organizations are invited in parliamentary committees to hear their representations, in most cases their representations are ignored and not listened to making the whole exercise a farce and eyewash at best.
Ignoring the Reactions of the people to this law
From legal luminaries to the common man, this law and its amendments have found support nowhere. Below we quote some comments from a wide cross section of the society that appeared in media reports.
“The wealthy or high net worth individuals can be a target. We all know women are not the only victims in marriages these days. I have handled gold-diggers myself”…This is absurd!” - Mrinalini Deshmukh (eminent lawyer) – THE TELEGRAPH (30.05.2012)
“A law cannot be lopsided, favouring one side over the other — the legislation has to be fair and square to all sides. Otherwise it would be ultra vires of the Constitution!”- Mrinalini Deshmukh (eminent lawyer) – THE TELEGRAPH (30.05.2012)
"The proposed law is already instilling a fear psychosis in men” Siddharth Shah, a divorce lawyer in Mumbai. – THE TELEGRAPH (30.05.2012)
“This is a bad legislation” Atindra Kumar Mukherjee, a senior divorce lawyer in Calcutta, stressing that there’s ample scope for abuse it were to come into force. - – THE TELEGRAPH (30.05.2012)
”Hindu Marriage Law Amendment Bill is anti-men, will destroy Indian families” – ehitavada paper Nagpur (21.05.2012)
“Every year, over 62,000 married men commit suicide due to verbal, emotional, economic, and physical abuse and legal harassment. The suicide rate of married men is double that of married women. One married man is committing suicide in every nine minutes.” – INDIAN EXPRESS (28.05.2012)
Prayer and Relief Sought
It does not take a law degree to understand that the proposed amendments are against Article 15 of the constitution and cannot be used as a basis of this law. The facts and the sequence of events lead to serious doubts and concerns that the ministry of law and justice might have acted under pressure from a handful of aggressive women’s groups and has for reasons known best to it introduced ultra vires amendments without a legal consultation process to vet the amendment’s fairness from a legal and constitutional standpoint. We henceforth pray that the Honorable Minister form a joint parliamentary committee and demand answers to the below questions from the ministry of Law and Justice.
a) Further proceedings on the law must stop till the probe is not over and must continue only after the JPC probe gives clean chit to all involved in the law-making process.
b) Immediate removal of the aggressive women’s groups (from within the Government women’s agencies or private NGO’s) from gender law making process as it hampers the effort of law making and prevents laws from adhering to the principles of natural justice
c) JPC Investigation into the actions of the Law Ministry in formulating amendments with ferocious intensity during the Parliament session in May 2012 with little national debate or consultation.
d) JPC Investigation into the reasons why the Law Commission was not consulted before the ultra vires amendments were introduced in quick succession?
e) JPC Investigation into the allegation that pressure was applied on the Government for formulation of this law and ignoring the principles of natural justice.
f) JPC Investigation into the reason behind the government hurriedly introducing this law 32 years after it was recommended by the Law commission? Was there political pressure behind the introduction of this bill?
g) JPC investigation into all the data provided to support clauses of property transfer.
We pray that the full report of this JPC probe may be published after a time bound enquiry and the people misusing their political office and introducing ultra-vires amendments or illegally influencing people in high political office may be punished under appropriate section of the law.
Thanking You,
Yours truly,
Copy to:-
The Hon’ble Prime Minister of India
The leader of the Opposition – Smt Sushma Swaraj
Law Commission of India
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