Is new Hindu Marriage Bill unconstitutional in some part - My view is yes.
A..First know these FOUR Legal Principles
1) This is an Amendment. An amendment can be struck down by Court ...if it goes beyond the scope of Main Act.
2) Discrimination based on sex is prohibited under Constitution unless it is for protection of a weaker class. If it is shown to court that there is discrimination on basis of sex in favour of "Women who are not financially or otherwise weak", then law can be struck down as "Discriminatory on basis of Sex" to that extent.
3) Law can be struck down if it is shown that it is excessively vague. Vagueness breeds arbitrariness. Too much power in hands of judges without any guidance about how to use this power is arbitrary and it can be struck down.
4) If Act provides to doing of an impossible thing, that part of the Act can be struck down.
B... Now Let us see how fat this new amendment is hit by above four principles
1) This bill is prepared under moral pressure of Supreme Court. Supreme Court pointed out two lacuna in Hindu Marriage Act which needed to be addressed by Parliament.
The Two Lacuna Were:-
A).. When husband and wife files case for divorce by mutual consent, they are asked to wait for six months. After 5 months and 25 days, wife turns around and says she is withdrawing her consent. The husband then cannot get decree of Divorce. He is remediless. So Supreme Court suggested Parliament to amend law to help husbands.
This is now done by Parliament. No problem'. This is ok.
Second Lacuna was:
B) There are many grounds under which husband and wife can apply for divorce- like cruelty etc.
But suppose for some reasons parties find themselves just incompatible with each other. Then the marriage gets break down irretrievably.
Earlier Hindu Marriage Act, did not provide for ground of divorce for "Irretrievable Breakdown of Marriage.
So Supreme Court suggest that such a ground should be added in ground of Divorce.
So Parliament has added this ground. No problem.
So far so good. But then the Bill makes provisions that Husband (Only Husband) cannot get divorce on On This or Any-other ground mentioned in main law, unless he gives Finnancial Compensation to wife
This is where the Bill 1) goes beyond scope of an Amendment, 2) It becomes sex discriminatory 3) And too much vague, As it placing arbitrary powers in hands of judges to refuse divorce without laying down any verifiable guidelines
C...NOW.. Some Arguments or Reasons to support above propositions or claims
1) Look at the object and reasons of the Amendment. (As per 2010) Bill) It had 7 paragraphs. In paragraph 1 to 6 it says that object of Bill is to remove two defects pointed out by Supreme Court....Suddenly in last 7th para,....it says that provisions is made to permit woman (Only woman) to oppose grant of divorce unless financial compensation is paid. There is not a whisper of object of such a provision in entire "Object and Reasons"
2) Any amendment which goes beyond scope of Main Act can be struck down.
Here, Under Hindu Marriage Act already has provision for granting permanent alimony to divorced wife . There are procedures. The new provision, nullifies and makes redundant all earlier provisions regarding permanent alimony.
Thus the Amendment goes beyond the main Act, and hence liable to be struck down. In other words in guise of amendment, it overrules other provisions in main Act.
Secondly, apart from Breakdown of marriage, there are many other grounds under parties can get divorce.
This Amendment says even on those ground, like cruelty etc..Court will refuse to grant divorce unless Financial Compensation is made.
This certainly goes beyond what Supreme Court had suggested, it goes beyond object of Bill and it goes against the spirit of the main Act. It changes entire Hindu Marriage Act, under guise of Amendment
3) Vagueness in the provisions .. Law should be clear so that parties can act accordingly.
Here Court is asked to refuse divorce on any or all of following grounds: ( As in original 2010 Bill)
A) For conduct of parties to marriage
B) interests of these parties,
C) Interest of any children
D) interest of ANY OTHER PERSON concerned
E) If court thinks that it is WRONG to give divorce ( Mark here, words like wrong, right, good, bad are not supposed to be used in laws. They are vague and incapable of being objectively verified)
F) Court can dismiss petition of HUSBAND ONLY on above ground A to F or can stay case in limbo till husband is ready to comply with demands made by wife.
Now 4 the Principle:
If law asks to do any thing impossible, the law is bad to that extent.
Here law asks the Magistrate to consider properties of husband which he may inherit in future. This is not legally possible. No one knows, the husband may not inherit anything.
Secondly, so far as husband's own property is considered, to deprive him of this property, special law is required. This can't be done by way of a Pre condition for divorce.
I am of firm opinion that many parts of above amendment bills are Unconstitutional. This view is based on Internet material and may be inaccurate. Please check exact terms in bill.
Haresh Raichura
Note: Earlier there was practice that all proposed Bills were sent to President of Supreme Court Bar Association. The President would then circulate this Proposed Bill to leading members of Supreme Court Bar for their comments. And then comments were sent to Government. This healthy practise is not seen since many years.
