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THE MARRIAGE LAW BILL, 2010

June 16, 2010

AS INTRODUCED IN THE RAJYA SABHA

ON THE 3RD MAY, 2010

Bill No. XXIII of 2010

THE MARRIAGE LAW BILL, 2010
A BILL to remove the discrimination between man and woman in the matter of
marriage and divorce in the existing laws, to ensure equality between them
and confer dignity and humane treatment to women and to strengthen family
and for matters connected therewith and incidental thereto. Whereas, article
16 of Universal Declaration of Human Rights requires that every Member State
should accord equal treatment to man and woman in the matter of marriage and
divorce;

And whereas, article 15 of the Constitution of India prohibits
discrimination against any citizen on grounds of religion and sex; And
whereas article 44 of the Constitution directs the State to enact uniform
civil code which includes uniform law regarding marriage and divorce.

BE it enacted by Parliament in the Sixty-first Year of the Republic of India
as follows:ó

Short title,commencement and applicability.

1. (1) This Act may be called the Marriage Law Act, 2010.

(2) It shall come into force on such date as the Central Government may, by
notification in the Official Gazette, appoint.

(3) it shall apply to all the citizens of India.

Definition

2. In this Act, unless the context otherwise requires, the words and
expressions used but not defined herein shall, mutatis mutandis have the
same meanings respectively assigned to them in the laws relating to marriage
and divorce which are in force at the time of the coming into force of this
Act.

Restriction on marriage when spouse is alive.

3. (1) No man whose wife is living, shall marry another woman and no woman
whose husband is living, shall marry another man except as expressly
provided in this Act.

(2) Any marriage in contravention of sub-section (1) shall be void and the
man or woman who marries in violation of sub-section (1) shall be guilty of
the offence and shall be liable to be punished for the offence of adultery
under section 494 of the Indian Penal Code, 1860. [45 of 1860]

Petition for divorce

4. Subject to the provisions of this Act, and to the rules made thereunder,
a petition for divorce may be presented to the District Court or the family
court as the case may be, either by the husband or the wife on the ground
that his wife or her husband as the case may be:ó

(a) has after the solemnization of the marriage had voluntary sexual
intercourse with any person other than his or her spouse; or

(b) has deserted the petitioner for a continuous period of not less than two
years immediately preceding the presentation of the petition; or

(c) is undergoing a sentence of imprisonment for seven years or more for an
offence as defined in the Indian Penal Code, 1860; or

(d) has since the solemnization of the marriage treated the petitioner with
cruelty; or

(e) has been suffering from incurable and communicable disease which makes
it unsafe for the spouse to live with him or her; or

(f) has been incurably of unsound mind, or has been suffering continuously
or intermittently from mental disorder of such a kind and to such an extent
that the petitioner cannot be reasonably expected to live with the
respondent.

Explanation.ó In this sub-section;

(i) the expression “mental disorder” means mental illness, arrested or
incomplete development of mind, psychopathic disorder or any other disorder
or disability of mind and includes schizopherenia,

(ii) the expression “psychopathic disorder” means a persistent disorder or
disability of mind (whether or not including subnormality of intelligence)
which results in a abnormally aggressive or seriously irresponsible conduct
on the part of the respondent, and whether or not it requires or is
susceptible to medical treatment.

(g) has been suffering from any venereal disease in a communicable form
including AIDS;

(h) has been suffering from leprosy, the disease not having been contracted
from the petitioner; and

(i) has not been heard of as being alive for a period of seven years or more
by those persons who would naturally have heard of the respondent, if the
respondent has been alive.

Explanation.óIn this sub-section, the expression “desertion” means desertion
of the petitioner by the other party to the marriage without reasonable
cause and without the consent or against the wish of such party, and
includes the willful neglect of the petitioner by the other party to the
marriage, and its grammatical variations and cognate expressions shall be
construed accordingly.

Petition for divorce by wife

5. A wife may also present a petition for divorce to the District Court on
the ground that her husband has, since the solemnization of the marriage,
been guilty of rape, sodomy or bestiality.

Divorce by mutual consent.

6. (1) Subject to the provisions of this Act and to the rules made
thereunder, a petition for divorce may be presented to the District Court by
both the parties together on the ground that they have been living
separately for a period of one year or more, that they have not been able to
live together and that they have mutually agreed that the marriage should be
dissolved.

(2) On the motion of both the parties made not earlier than six months after
the date of the presentation of the petition referred to in sub-section (1)
and not later than eighteen months after the said date, if the petition is
not withdrawn in the meantime, the district court shall, on being satisfied,
after hearing the parties and after making such inquiry as it thinks fit,
that a marriage has been solemnized under this Act, and that the averments
in the petition are true, pass a decree declaring the marriage be dissolved
with effect from the date of the decree.

Restriction on presentation of petition for divorce.

7. No petition for divorce shall be presented unless as on the date of the
presentation of the petition three years have elapsed from the date of
marriage.

Second marriage with the permission of the court.

8. Notwithstanding anything contained in this Act, or in any other law for
the time being in force:ó

(1) A man can take a second wife with the consent of his wife and with the
permission of the court which could be given on any one or more grounds on
which divorce can be granted under section 4 of this Act or on the ground of
physical disability caused on account of any accident or any illness or for
any reasons whatsoever which renders her unfit for discharging her duties,
responsibilities and obligations as the wife.

(2) In every petition for divorce presented by the husband under section 4
or for permission to take a second wife under section 9, if the court comes
to the conclusion that the petitioner is entitled to the decree of divorce
on any one of the grounds on which it could be given under section 4, or
permission to take a second wife could be granted under section 8, the court
shall in the first instance pass a preliminary decree granting divorce or
permission to take a second wife as the case may be.

(3) The wife against whom the preliminary decree is passed under section 8,
shall be entitled to prefer an appeal against such decree except in cases in
which she had given her consent, to the High Court within a period of thirty
days from the date of the preliminary decree.

(4) It shall, however, be open to the wife not to prefer any appeal against
such preliminary decree and to give consent to the husband to take a second
wife and if, the wife files such consent before the court within thirty days
from the date of the preliminary decree, the Court shall set aside the
preliminary decree for divorce and grant permission to the husband to take a
second wife.

(5) If neither an appeal is filed by the wife to the High Court nor the
consent is filed, consenting to the husband taking a second wife within the
prescribed period, the Court shall proceed to pass final decree for divorce:

Provided that before passing final decree, the Court shall give paramount
consideration to the interest of child/children of the petitioner and
respondent and shall pass appropriate orders for the protection of their
interest in every respect including their health, education and maintenance:

Provided further that before passing a decree of divorce or appropriate
orders which directly affects the children, the Court shall give notice and
opportunity of hearing to the person who is interested in the welfare of the
children of the spouse.

Permission to take a second wife on the application of the wife.

9. (1) A wife shall be entitled to file a petition before the District Court
according permission to her husband to take a second wife only on the ground
that she is medically certified as incapable of child bearing or she has
been incapacitated for discharging her duties and obligations as required by
a wife on account of any accident or any illness or for any reasons
whatsoever.

(2) the permission under sub-section (1) shall be given by the Court if, the
Court is satisfied that the application made, is out of her free will and
desire and not on account of any force, fraud or undue influence brought to
bear on her by the husband or any one on his behalf.

Maintenance allowance.

10. (1) In case, a permission is granted to a man to take a second wife
under section 8 or 9 of the Act, the wife shall have the option either to
live with the husband or to live separately and claim maintenance from the
husband for herself and for her children, if any, from the husband, if she
has no sufficient source of livelihood.

(2) The quantum of maintenance, however, shall be determined by the Court
having due regard to the requirement of the wife and/or children and also
having due regard to the financial capacity of the husband on an application
made by the wife and/or children as the case may be.

Permission to take a second husband.

11. (1) A wife shall be, with the permission of the competent court,
entitled to take a second husband if,ó

(a) her husband has been convicted for an offence and sentenced to undergo
imprisonment for more than seven years; or

(b) her husband is suffering from incurable and communicable venereal
diseases including AIDS and thereby, incompetent and unsuitable to lead a
conjugal life; or

(c) he joins ascetic order and shuns married life; or

(d) he is guilty of such cruelty which makes it impracticable to the wife to
live with him; or

(e) he has been absconding for more than seven years; and

(f) he has been certified by a competent medical authority that he is
impotent.

(2) Notwithstanding the taking of a second husband with the permission of
the Courts on the grounds mentioned in this section, her right for any share
in the property of her first husband or any right flowing from her
relationship with her first husband including the right of their children if
any, shall remain unaffected.

(3) Whenever a petition is filed by a wife seeking permission to take a
second husband, the court shall consider the grounds urged with great
circumspection and grant permission after recording a finding that the
ground has been made out beyond reasonable doubt.

Right in the property of the spouse to remain unaffected even on taking
second spouse.

12. In all cases in which permission is given to a man to take a second wife
or permission is given to a woman to take a second husband their right to
share in the property of the spouse concerned or any right flowing from the
relationship as spouse including the right of their children if any, shall
remain unaffected.

Jurisdiction.

13. Only the highest court of original civil jurisdiction in the district
other than the High Court alone shall have jurisdiction to entertain and
decide all the petitions presented under any of the provisions of this Act.

Presence during proceedings in the Court.

14. At the time of the proceedings of the Court, in each case only parties
to that cases and their counsel and such other persons, with the permission
of the court shall be present in the Court.

Appeal.

15. (1) An appeal shall lie to a Division Bench of the High Court against
all or any of the orders passed by the Court having original jurisdiction
both on questions of law and fact.

(2) The High Court shall have all the powers of the first appellate Court
under the Code of Civil Procedure, 1908 [5 of 1908.] both in respect of
making any interim order as well as passing the  final orders.

Religious aspects of Marriage remain unaffected.

16. All religious aspects of the marriage in all the personal laws of the
citizens belonging to different religions shall remain unaffected.

Act to have overriding effects.

17. The provisions of this Act shall have effect notwithstanding any thing
contained in any of the laws in force as on the date of commencement of this
Act, including the Muslim Personal Law Application Act, 1937 [26 of 1937]
and the Dissolution of Muslim Marriage Act, 1939 [8 of 1939] and all the
laws continued by virtue of Article 372 of the Constitution as also any
usage, custom or practice.

Power to make rules.

18. (1) The Central Government shall have the power to frame rules after
previous publication generally for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing
power, such rules may provide for all or any of the following matters
namely:ó

(a) the procedure to be adopted by the Court in the petitions presented
under the provisions of this Act;

(b) the form and manner in which any restriction, the type of restriction
and particulars of information required to be entered in the registers, in
respect of all the proceedings under the Act;

(c) fees that may be levied in respect of petitions and/or applications
under the Act;

(d) manner in which public notice may be given in cases in which the
whereabouts of the respondent is not known; and

(e) any other matters, which may be or required to be prescribed.

STATEMENT OF OBJECTS AND REASONS

Prior to the date of commencement of the Constitution, there were different
laws
governing marriage and divorce as applicable to different classes of
citizens. All those laws
were continued by virtue of Article 372 of the Constitution insofar as they
are consistent
with the provisions of the Constitution. One of the main objectives of the
Constitution as
enshrined in the Preamble is that the State shall be secular and shall
ensure equality for all
citizens and to secure Social Justice. Article 14 is an injunction to the
State not to deny
equality before law. Article 15 in particular prohibits discrimination
against any citizen on
grounds of religion or sex.

Article 44 of the Constitution read with Article 37 of the Constitution
makes it the
fundamental duty of the State to secure for the citizens a Uniform Civil
Code. As held by the
Hon’ble Supreme Court in the case of S.R. Bommai Vs. Union of India. 1994
(3) SCC1 it is part of secular character of our Constitution. There are laws
such as those relating to rights of individuals in family property, night to
succession, minority, guardianship, marriage and
divorce which fall within the scope of the expression ‘Civil Code’. Of all
these, Marriage and
Divorce are the most important. On this topic, there are both post
constitution as well as preconstitutional laws such as. The Hindu Marriage
Act, 1955, the Special Marriage Act, 1954 [Act Nos. 32 of 1963, 33 of 1969,
29 of 1970 and 68 of 1976]. The Indian Christian Marriage Act, 1872, The
Parsi Marriage and Divorce Act, 1936. The Muslims Marriage and Divorce Act
1951 as applicable to different class of citizens have been made.

However, as regards the Personal Laws of Muslims, concerning marriage and
divorce,
no law has been enacted by the Parliament after the commencement of the
Constitution. The Muslim Personal Law relating to marriage and divorce
enables a man to take four wives at a time and further it confers a
unilateral and absolute right on the husband to divorce his wife by his own
order called ‘talaq’. These provisions of Muslim Personal Law relating to
Marriage and Divorce are discriminatory against women only on ground of sex.
It is also discriminatory only on the ground of religion. Equality as
between man and woman and dignity of individual citizen is the very
fundamental aspect of equality and social justice. The fundamental right
guaranteed under Article 15 inter alia prohibits discrimination on the
ground of sex or religion. Further, the Uniform Law on the topic of Marriage
and Divorce is essential for the purpose of national integration, as held by
the Hon’ble Supreme Court in the case of Mohd. Ahmed Khan Vs. Shah Bano
Begumó AIR 1985 SC 955 and in its recent judgment is Sarala Mudgal [1995 (3)
SCC 635].

Despite the words of wisdom coming from the highest court and the
Constitutional
mandate, they are subordinated to religion dominated politics. Therefore, it
is high time that
supremacy of the Constitution must prevail. It is also matter of common
knowledge that
ordinarily no woman relishes the idea of her husband having another wife and
Muslim
women are no exception to this. But they are being discriminated against
both on grounds of
religion and sex and males are favoured to the detriment of the interest of
women and thereby causing gender discrimination.

Therefore, this Bill is intended to put an end to the discrimination against
women on
grounds of sex, and religion by incorporating the rule of monogamy subject
to the exceptions
as expressly provided for in the Act. The provisions regarding divorce
incorporated in this
Act is, in terms of Section 27 and 28 of the Special Marriage Act, 1954.

Monogamy as an invariable rule in exceptional cases causes great hardship
both to
the husband and wife, who are unwilling for divorce but second marriage has
become
necessary in the interest of both and the family. To illustrate, in a case
where husband and
wife love each other, and are leading a happly life, unfortunately on
account of a motor
accident, the wife loses both her legs, and therefore, unable to discharge
her obligations as
a wife, and therefore desires that her husband should take a second wife.
But the existing law does not permit that and for that purpose has to seek a
divorce of the first wife though they do not want it and which would result
in inflicting greater injury than already suffered on
account of accident or in a case where it is medically proved that the wife
is not child bearing
and therefore, the wife herself desires and gives consent to her husband
taking a second
wife, the law does not permit, which is unbearable to both.

Therefore, exception to monogamy is provided for, for all in order to avoid
divorce, in
cases in which either the wife or the husband or both do not want divorce
even in cases in
which a ground for divorce is made out. In such cases, provision has been
made to the effect
that with the consent of the wife only, according permission to the husband
to take a second
wife is provided for. This is intended to safeguard the interest of wife who
does not like to be
a divorcee, not only by maintaining her status as wife but also protecting
all her rights under
the law, as wife.

Further, in cases in which the wife is not child bearing or has become
incapcitated for
discharging her duties and obligations as a wife, she is given the right to
seek permission of
the Court for her husband taking a second wife with the object of continuity
of the family.
Provision has also been made for enabling a wife to take a second husband as
provided in
Section 11. In substance, this law is meant not only to ensure complete
national integration
which is essential for protecting and strengthening the feeling of
fraternity among the people
and unity and integrity of the National but also in protecting the interests
of both husband,
wife and their family.
Hence, this Bill.

M. RAMA JOIS

MEMORANDUM REGARDING DELEGATED LEGISLATION
Clause 18 of the Bill empowers the Central Government to make rules to carry
out the
purposes of the Bill. It will relate to matters of details only. The
delegation of legislative
power is of normal character.

RAJYA SABHA
óóóó
A BILL
to remove the discrimination between man and woman in the matter of marriage
and
divorce in the existing laws, to ensure equality between them and confer
dignity and humane treatment to women and to strengthen family and for
matters connected therewith and incidental thereto.
óóóó
(Shri M. Rama Jois, M.P.)

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