Citing own case,Shinde daughter questions law on divorce

Section 13B of the Act prescribes that a marriage can be dissolved only if both the husband and wife agree to a divorce in writing before a district court.

For filing such a petition,the couple should have been living separately for a year or more and have mutually agreed to dissolve the marriage. The statute further gives the couple time between 6 to 18 months time for reconciliation before passing a decree of divorce.

The law cannot compel a woman who is emotionally and mentally unable to cope with a marriage to remain bound in wedlock to her spouse even when they have lived apart for an year and thereby it is established that the marriage is dead, submitted Smriti,40,who gave her address as 2,Krishna Menon Marg,New Delhi in her petition. This is her fathers official residence.

The petition,settled by senior advocate Harish Salve,contends that in such a circumstance,the compulsion upon the wife to obtain the consent of the husband to maintain and prosecute a petition both at the stage of Section 13B (1) and Section 13B (2) is violative of the principles of gender justice and thereby of Articles 14 (right to equality) and 21 (right to dignity of life) of the Constitution.

It argued that the law does not help even if the husband actually consents to the fact that the marriage is irretrievably broken,in which case the estranged wife would have to wait for a further period of six months of living separately goes by.

Smriti draws from her personal experience to explain to the apex court of how socially vulnerable the Indian socio-cultural milieu makes a woman,who files for divorce or even lives apart from her husband for a year,feel. She says divorce is the last option for an Indian woman.

A divorcee in any society and more particularly in the Indian social system faces serious challenges in her personal and even working life. In such a situation,most women would not readily want to secure a divorce, she contended.These social moorings ensure that a woman would want to press ahead with a divorce only when her continuance in the marriage is more traumatic than the consequences of being a divorcee, she added.

As per her petition,a Family Court had granted her an ex-parte decree of divorce with her husband Sanjay Pahariya,a resident of Worli in Mumbai,on December 5,2007 after she agreed not to ask for any maintenance or financial settlement. She further agreed to take full responsibility of their children while affording her husband full access to them. The Bench today issued notice to Pahariya too.

The Bombay High Court had set aside the divorce decree,and a special leave petition by her against this in the Supreme Court had also been dismissed in May 2009. The matter is now back in the trial court.

Smriti has also sought the apex court to grant her divorce or,in alternative,direct the trial court to hear her case ignoring the unconstitutional requirements in the provisions of divorce by mutual consent in the Act.