Unlike other family laws, under Hindu law marriage is considered to be a sacred rite. In any case, marriage is still an agreement, and it, like all other types of agreements, may be terminated. Divorce is the process of dissolving a marriage or marital bond in accordance with the legislation controlling the individuals in accordance with the personal law respectively applicable to them.[1]
As the socio-economic condition of the spouse improved with the advancement of society, they also grew to be more self-reliant and independent. They are willing and ready to live apart rather being tied and living together while being dissatisfied with their marital relationship.[2] Furthermore, with the steady progress of education, communication technology, and rising level of understanding, the societal stigma of divorce is rapidly fading in the current day. Divorce rules have been noticeably liberalised in line with this shift, particularly under the Hindu Marriage Act of 1955[3].
Furthermore, the study of the implementation of these divorce laws that evolved over the last few decades indicates that getting a divorce on the mere basis of a marital ground or on the grounds based on “fault-based theory” recognised by law is not only time taking and nerve-racking, but it also includes a huge amount of both mental and physical agony by inducing harassment and shame on both the parties. And if, after such a lengthy and exhaustive struggle, the evidence fails to prove the marital fault, the petitioner is not only denied the remedy demanded but it also leads to severed ties between the two parties due to the allegations and harassment faced due to trials.[4]
Thus, in order to avert such unfortunate circumstances, the Law Commission of India proposed “irretrievable breakdown of marriage” as a separate cause for obtaining divorce in 1978. The condition for such a breakdown was established as a point of separation with very little chance of reunion.
In its 71st Report, the Law Commission of India has firmly recommended that “irretrievable breakdown of marriage” should be included as a separate ground for obtaining divorce under the Hindu laws. Further, it also emphasises on the separation period of around three years as a criterion of breakdown.[5] On the basis of the Report, the Marriage Laws (Amendment) Bill, 1981 was accordingly introduced in Parliament but it later lapsed due to the continuous and persistent opposition it received from few women organisations.
This was followed by the series of large number of debates regarding both advantages and downsides to determine whether to include “irretrievable breakdown marriage” as a separate ground of marriage, but ultimately it had to be withdrawn due to continuous high level of resistance. Though “mutual consent” as a ground for divorce, on the other hand, has already been included in various personal laws to give speedy relief to the aggrieved parties to some extent.[6]
The major consideration of the opposition in regard to inclusion of “irretrievable breakdown of marriage” as a separate ground for dissolution of marriage is that the ground of “divorce by mutual consent” under the Hindu Marriage Act already encompasses the arena concerned and the inclusion of the former ground would only lead to complexity of the system for both the courts and the pleading parties.
But at this point it should be noted that “mutual consent” as the name suggests, requires the consent of both the parties. If even one of the parties decides to not cooperate, the above ground does not hold any validity and even the courts do not have any right of imposing the divorce decree on them. While the “irretrievable breakdown of marriage”, on the other hand, is a ground for the court to consider the stability of the relationship and if the court determines on the basis of the facts of the case that the marriage by means cannot be restored or saved and even if it does get restored it would only hamper the relation between the parties, then in that case the divorce can be pronounced.[7]
If we look into Naveen Kohli v. Neelu Kohli[8], we can observe that the Supreme Court itself advised the Government to carefully consider incorporating “irreversible breakdown of marriage” as a reasonable ground for granting divorce under the Hindu Marriage Act, 1955.
Marriage is indeed considered as a sacrament under the Hindu laws and is supported very well with the help of legal ties, but by refusing to break those ties when their binding becomes unbearable, the law in such cases no more ensures the sanctity of the marriage rather it becomes mere legal obligation for the parties. It indicates a lack of consideration for the emotions and beliefs of the parties. Divorce laws protect the parties from such meaningless obligations by allowing them to break their marital ties. It is pointless to keep two people bound by a marriage connection if they cannot live peacefully together.
If we consider various scenarios where the wedlock has broken down because the parties are living apart, or the wife has only lived in the matrimonial home for a few months after marriage, or the wife has made mere allegations of cruelty and desertion against the husband, and the husband has made counter-allegations against her, or any other scenario where the parties have fallen apart from their marital relationship and their marriage thus, remains irretrievably broken, then in these cases, it is in the interest of justice that a decree of divorce is granted so that both parties can live apart but in peace.
Sections 13(1-A)[9] and 13-B of the Hindu Marriage Act, 1955 are considered to be inadequate to counter each and every situation concerning remedies in marriage. Under the fault grounds of divorce theory, though the marriage may have been broken down, the parties are expected or largely compelled to live with each other in the wedlock.
Divorce should not be seen as mere tool of breaking the sacrament ties rather it should be considered as a solution and majorly an escape route to move out of an unbearable situation created due to high level of tensions and uncertainty in the wedlock making it impossible to stay in it. Such a divorce does not concern itself with the wrongs of the past, but rather with bringing the parties and children to grips with the new situation and development by working out the most satisfactory basis on which to regulate their relationship in the changed circumstances.[10]
Is there any sort of justifiable way in which the parties to the marriage can be compelled to continue their marital life with the consort after the excess of the sufferings and the harassment? It is fairly evident that nothing could be achieved by trying to keep the parties tied forever to a marriage that in fact has ceased to exist between the parties themselves. Human life has a limited ability to focus, circumstances causing harassment cannot be permitted to proceed endlessly. Law cannot deliberately ignore such circumstances, nor would it be able to decrease to give satisfactory reaction to the necessities emerging subsequently.
The parties in N.G.Dastane v. S. Dastane[11] fought for more than ten years. The petition raised by the husband for demanding the judicial separation was duly dismissed by the court on “technical grounds of condonation”. The marital relations between the parties in this situation were completely destroyed. This case clearly emphasises on the importance of inclusion of “irretrievable breakdown of marriage” as an independent ground for dissolving the marriage under Hindu laws. Moreover, it is also observed that the young children who are also major sufferers stuck in the middle of the irretrievable marriage of their parents, will be somewhat better off with one loving parent rather than staying with two parents who are most of the time engaged in arguments with each other causing mental trauma to the kids.
A large number of the developed nations have perceived “irretrievable breakdown of marriage” as a separate ground for divorce proceedings. Thus, unmistakably dissolving of the marital ties has remained under a strict scrutiny and evolution in every one of the overall sets of laws of the world. Divorce laws have been changed over the period of time so that the wedded couples who wish for the dissolution of their matrimonial relations have less lawful difficulties and get fast legal remedy.
Over the period of time the Supreme Court has indeed granted the remedy of dissolution of marriage in numerous cases, not merely because of presence of either adultery, cruelty, or desertion, but also on the mere ground of irretrievability where the sacred tie of marriage between the two parties had entirely broken down; lost its trust, love, and care for the opposite parties; had a severe emotional breakdown; failed to manage their respective feelings; and lastly when even any other alternate way could not restore or preserve the marriage concerned. Though there is no specific provision for “irretrievable collapse of marriage”, the Supreme Court has, over the period of time, used its jurisdiction conferred by Article 142 of the Constitution[12]to administer required absolute justice for the parties in marital procedures. The Court, further, felt that in extreme instances where the parties are not only involved in accusing each other, but when the very basis of their marital relationship has collapsed and cannot be rebuilt at all by any available way, the Court must provide for the decree of dissolution of marital relations on the grounds of “irretrievable breakdown of marriage”.[13]
Irretrievable breakdown did not go on to formally become law, but acquired informal validity as a principle evoked in a number of judicial decisions granting divorces. The resultant legal confusion was one of the main reasons the Law Commission took up the question again as a suo motu issue, with the 217th Law Commission of India Report[14] in March 2009 recommending (again) that irretrievable breakdown be added as a ground of divorce to existing provisions.
The fact to be considered here is that when a marriage is broken without being able to be revived, it is quite unrealistic for the law to fail to notice the irretrievable breakdown of same, which is not only harmful to society but also to the interests of the parties. Therefore, the judiciary took the firm stand on considering the necessity of including “irretrievable breakdown of marriage” as an independent ground for divorce and thus, over the period of time has been able to do the justice in at least some of the cases, but there still remains the major gap due to non-existence of proper laws on the same.
Therefore, it is now high time to evaluate and amend the Hindu Marriage Act of 1955 and the Special Marriage Act, 1954[15], and to take immediate steps to include the “irretrievable breakdown of marriage” as one of the grounds of dissolving the marriage between the two parties.
*Second year student, Maharashtra National Law University, Nagpur. Author can be reached at iolishukla@nlunagpur.ac.in,
[1] Paras Diwan and Peeyushi Diwan, Family Law, 194-197 (Allahabad Law Agency, 1998).
[2]Vijender Kumar and Vidhi Singh, Divorce by Mutual Consent Among Hindus: Law, Practice and Procedure, 1 CLR 1, 1-16 (2017).
[4]Kusum, Divorce by Mutual Consent, 29 JILI (1987) 110, 110-114. .
[5]Law Commission of India, Report No. 71 on The Hindu Marriage Act, 1955 — Irretrievable Breakdown of Marriage as a Ground of Divorce, (1978); Also see Law Commission of India, Report No. 271 on Irretrievable Breakdown of Marriage — Another Ground for Divorce, (2009).
[6] Hindu Marriage Act, 1955, S.13-B; Parsi Marriage and Divorce Act, 1936, S.32-B; Divorce Act, 1869, S.10-A; Special Marriage Act, 1954, S.28.
[7] Vijender Kumar, Irretrievable Breakdown of Marriage: Right of a Married Couple, (2010) 5 NSLR 15, 18-22.
[9]Hindu Marriage Act, 1955, S. 13(1-A).
[10] Vijender Kumar, Irretrievable Breakdown of Marriage: Right of a Married Couple, (2010) 5 NSLR 15, 18-22.
[12]Constitution of India, Art. 142.
[13] Vijender Kumar, Irretrievable Breakdown of Marriage: Right of a Married Couple, (2010) 5 NSLR 15, 18-22.
[14]Law Commission of India, Report No. 217 on Irretrievable Breakdown of Marriage — Another Ground for Divorce (2009).
Irretrievable breakdown of marriage should not be a valid ground for divorce. The Supreme Court of India should not be under the false impression that it is doing complete justice by exercising its power under article 142 of the constitution. When one spouse is clearly saying that the marriage is “retrievable”, then who gives authority to judges of The Supreme Court of India to proclaim that his/her marriage is “irretrievable”? Either both spouses need to agree that the marriage is irretrievable in which case they would apply for Mutual Consent Divorce (MCD) or one spouse should provide sufficient evidence to court to prove that the other spouse is at fault and therefore there is a valid ground for seeking divorce under The Hindu Marriage Act,1955 in which case it would be a case of Contested Divorce (CD). When a person is not at fault, then the Supreme Court of India has no right to force a divorcee tag on him/her against his/her wishes. A person who is not at fault has the right to remain married on papers irrespective of the wishes of his/her spouse. One spouse has no right to unilaterally end the marriage without consent or fault of the other spouse.