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By Swati Deshpande,Times
New Network
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She is 27 years old, he 29. They lead separate lives, have
separate sets of friends and interests that don’t match. So,
what’s the catch? It’s only their third month of marriage
and, although both want out, the law is coming in their way.
A trip to their lawyer revealed they could not even approach
the court with a joint petition till they had a year of separation
to show. And then they would have to wait six more months
before the divorce decree would be passed to make them legally
free to move on.
Kranti
Sathe, family court lawyer in Mumbai, says young married couples
are increasingly questioning the need for a year’s separation
before they can file a mutual-consent divorce petition. "Why
do I have to wait that long?’ is a constant query I face,"
she says. The Hindu Marriage Act, which governs marriages
between Hindus, and the Special Marriage Act - a secular piece
of legislation to solemnise both inter- and same-faith marriages
- allow divorce by mutual consent.
But the
fine print says there should be at least a year of separation
before the divorce process can be kicked off in courts. The
Indian Divorce Act, dealing with marriages of Christians,
requires two years of separation. With changing times, and
a fast-evolving society, is the year’s separation necessary?
Legal experts, social and marriage counsellors say it’s time
to take a fresh look at divorce laws, especially as six more
months are required for the court to pass the final order.
So 18
months have to pass, at the very least, before a decision
to end the marriage mutually can have legal sanction.
Sathe,
who handles multiple divorce cases, notes: "There is
a distinct rise in the number of mutual-consent petitions
and the bulk comprises young newly married couples. Most first-time
urban marriages take place when both parties are post-25 and,
hence, if they decide mutually that their marriage is not
working out, we must respect their decision to walk out of
it."
Her views
are echoed by other legal experts. Counsel Mahesh Jethmalani
is categorical: "Once two adults go to court and say
their marriage has broken down irretrievably, they should
be granted a divorce immediately and be spared their misery.
The law is no longer practical and, by implementing it, the
process is being too technical. We are not talking about child
marriages any more." "When a couple are married
for more than a couple of years before they decide on a divorce,
they easily state they have been living separately for a year
even though they may have been sharing the same house and
bed," a family court lawyer says. The law abroad permits
the couple to live in the same household but they have to
show they ate and slept separately.
In India,
though the law is not very specific, the Supreme Court has
laid down that the couple could be considered to be residing
separately even if they are staying in the same household.
The other
hitch is that the law requires both spouses to be present
at the time of filing the joint petition and then meet the
marriage counsellor in the court; they also have to be present
when the decree is passed. Some judges of the family court
in Bandra also come to the aid at times, waiving away the
six-month wait.But this is done more when a contested petition
or a petition for child custody, pending for years, has been
converted midway into a consensual decision to split. The
long wait in a contested plea is well-known.
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