Monday, July 04, 2016

THE UNIFORM MARRIAGE AND DIVORCE BILL...

Two areas are close to my heart, namely uniform civil code and population control. I had drafted bills in late 1990's before I was  offered judgeship. The bills were distributed in the Parliament at that time but before they could be introduced (whether as a bill from the public or as a private member bill) the Parliament was dissolved. 

The Central government has asked the Law Commission to examine the issue of implementing the  Uniform Civil Code in detail and submit a report. I thought of publishing the bill relating to Uniform Civil Code that I had drafted.
This cartoon is by Sandeep Adhwaryu on... the Uniform Civil Code  published in Mail online India

Objects and Reasons: Article 44 states that the state shall endeavour to secure for the citizens a uniform civil code throughout the country of India. The present Act is a step in that direction. 

The Act prohibits polygamy, permits the courts to grant maintenance and decide about the custody of children and disposal of the property. 

The Act does not take away rights of the parties to obtain divorce on the grounds available under personal laws if they are reasonable but makes it mandatory to obtain it through court. 

The Act also permits divorce on mutual consent and where marriage has broken down and cannot be reconciled. It is with these objectives that this Act is being enacted by Parliament in the ... year of the republic as follows:

1. Short title and extent: (1) This act may be called the Uniform Marriage and Divorce Act.
(2)  It extends to the whole of India except the State of Jammu & Kashmir. It applies to all persons residing within the territory to which it extends.
(3) The Act will come into force on the date specified by the Central Government in the official Gazette.

2. Definition: (1) In this Act unless the context otherwise requires.
(a) `District court' means, in an area for which there is a city civil court, that court and in any other area, the principal civil court of original jurisdiction. It includes any other civil court, which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act. 

3. Overriding effect of the Act: The provisions of this Act shall override any other law dealing with any matter dealt with in this Act. 

4. Condition for valid marriage: A marriage can be solemnised between two persons only if they are capable of giving valid consent and the  following conditions are also fulfilled:
(a)  the bridegroom and the bride have completed the age of twenty-one and eighteen years respectively; 
(b)  neither party has a spouse living; 
(c)  the marriage is also valid under any other law applicable to  the parties.

5. Legitimacy of children: Children from a marriage solemnised in contravention of section 4 shall be legitimate.  They shall not be denied any rights or status  on the ground that marriage is null, void or is in contravention of the law. 

6. Void marriages: (1)  Any marriage solemnised after the com­mencement of this Act in contravention of section 4 (b) of the Act shall be null and void. It may be so declared on a petition presented by either party. 
(2)  The court while dealing with the case shall have same powers as under sections 10 to 12 of the Act in respect of children, maintenance and disposal of the property. The court may pass orders or vary the same subsequently, as it may deem fit and proper. For this purpose parties shall be treated as husband and wife.

7. Divorce: (1) The District Court alone can dissolve a marriage if: 
(a)  The marriage, contravenes Section 4 of the Act.
(b)  The marriage though solemnised before the commencement of the Act could not have been solemnised after the commencement of the Act as it would have contravened the conditions mentioned in Section 4(b) and  4(c) of the Act.
(c)  The court has reasons to believe that mar­riage has broken down and can not be reconciled
(d)  The party presenting the petition for a divorce is entitled to divorce under the law applicable to the parties. But a party shall not be entitled to a divorce without reasonable cause even though such divorce may be valid under the law applicable to the parties. 
(2) A divorce without approval of the court shall not be valid. But this does not affect any divorce effected before commencement of this Act.

8. Divorce by mutual consent: (1) A marriage may be dissolved by mutual consent by the parties. This may be done by presenting a petition for dissolution of the marriage to the district court. The petition should state that they have been living separately for a period of a year or more, they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.  The petition must contain the terms agreed to between the parties regarding distribution of property, maintenance of wife, maintenance of children and their custody.
(2) The court shall consider the petition not earlier than three months  after the date of the presentation thereof and not later than twelve months after the said date.
(3) The court, after hearing the parties and after making such inquiry as it thinks fit to prove the averments in the petition, shall pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
(4) This section applies to a marriage solemnised before or after the commencement of the Act.

9. Court to which petition must be presented: Every petition under this Act must be presented to the district court within the local limits having ordinary original civil jurisdiction over the place where:
(a)  the marriage was solemnised; or
(b) the respondent, at the time of the presentation of the petition resides; or
(c) the parties to the marriage last resided together; or
(d) the petitioner is residing at the time of the presen­tation of the petition, in a case where the respondent is at that time, residing outside the territories to which this Act extends, or 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 him if he were alive. 

10. Maintenance pendente lite and expenses of proceedings: The Court may on the application of the wife or the husband, order the other party to pay the expenses of the proceeding and monthly maintenance during the proceeding.  This may be done if applicant has no sufficient independent income: to maintain oneself,  and support the necessary expenses of the proceedings.  In fixing the sum the court shall have regard to the income of the parties. 

11. Permanent alimony and maintenance: (1) The court may at the time of passing the decree or at any subsequent time, on the application by a party,  order that the other party must pay to the applicant for maintenance and support such gross sum or such monthly or periodical sum for a term not beyond  the life of the applicant.
(2) In fixing the sum the court shall consider the income, property, Mehar if any between the parties, the conduct of the parties and other circumstances of the case.
(3) The Mehar fixed between the parties shall not bind the court.
(4) The court if necessary may secure the payment, by charging on the immovable property of the respondent.

12. Custody of children: (1)The court may, from time to time, pass interim orders and, make such provisions in the decree with respect to the custody, maintenance and education of children. The orders may be made having regard to their welfare, consistent with their wishes if possible.
(2) The court must make provision in the decree with respect to the property possessed or held by the husband and the wife either jointly or individually. 
(3) The court may, if the circumstances so demand, alter the decree in this regard upon an application by any party. 

13. Appeal from decrees and orders: All decrees made by the court in any proceeding under this Act shall be appealable as decrees of the court made in the exercise of its original civil jurisdiction. Every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of that court. 

14. Documentary evidence: No document shall be inadmissible in any proceedings under the Act on the ground that the document is not duly stamped or registered. 

15. Proceedings to be in camera and may not be printed or published: (1) Every proceeding under this Act shall be conducted in camera. Except for the judgements of the High Court or of the Supreme Court, it shall not be lawful for any person to print or publish any matter in relation to any such proceeding without the previous permission of the Court. 
(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be  punishable with  a fine which may extend to one  lakh rupees.
(3) In case of repeated contravention, the fine may extend to ten lakh rupees. 

16. Special provision relating to trial and the disposal of petitions under the Act: (1) The trial of a petition under this Act shall, as far as  practicable,  be contin­ued on  day to day basis till its conclusion unless the court finds the adjournment of the trial beyond the following day to be necessary in the interest of  justice and for the reasons to be recorded.
(2) All efforts shall be made to conclude every petition under this Act within six months from the date of service of notice of the petition on the respondent.
(3) Every appeal under this Act shall be heard as expedi­tiously as possible and endeavour shall be made to con­clude the hearing within three months from the date of service of notice of appeal on the respondent.

17. Enforcement of decrees and orders: All decrees and orders made by the court in any proceeding under this Act shall be enforced in the same manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction are, for the time being, enforced. 

18. Punishment for contravention of certain conditions of marriage: (1) The provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860) shall apply to any marriage, which is in contravention of Section 4 (b) of the Act.
(2) Any person who marries in contravention of Section 4 (a) of the Act and everyone who knowingly participate in such marriage shall be punished  with simple imprisonment which may extend to fifteen days or a fine of one thousand rupees, or with both.

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