This article has been authored by Savita Gangwar, a third-year law student at Army Law Institute, Mohali.
Marriage being regarded as a sacrament under Hindu Law is also believed to be made in heaven. This leaves one with the question: does the sacramental nature make it eternal or indissoluble, or do we have a choice to quit in between?
A successful marriage is not defined by merely living together for years but living together happily. There have been umpteen cases where the couple puts an effort to grow together yet develops animosity, ultimately leads to separation.
Earlier the grounds for divorce were too scanty as divorce was considered, a taboo and was not acknowledged. In considerable cases, divorce was not an option for women and they were compelled to spend their lives in the vicinity of husband and in-laws only. Even if they were given divorce, their socio-economic position ostracized them from the society. However, their position in the current society has improved and that’s why divorce is now feasible for them.
Although, up to certain limits, enactment of Hindu Marriage Act, 1955 (‘HMA’) has solved the problem. In relation to the inclusion of ‘Irretrievable Breakdown of Marriage’ as a ground for divorce, opponents argue that ‘divorce by mutual consent’ has already been inserted in 1976 which covers maximum cases. It is important to accept that divorce by mutual consent requires the consent of both the parties and if either of them does not accede, the divorce won’t be granted, as held in Savitri Pandey v. Prem Chandra.
Irretrievable Breakdown of Marriage
If in certain circumstances, it is known that there are no prospects of advancement of the marriage, continuing to drag the marriage legally acts as cruelty to the spouse. It is only under the Hindu Personal Laws where such severe restrictions related to divorce exist. Muslim, Parsee and Christian marriage laws allow divorce more easily. Grounds for divorce are laid down under Section 13 and 13(1A) of Hindu Marriage Act 1955. Furthermore, Section 27 and Section 28 of Special Marriage Act, 1954 also hold grounds in case of solemnized marriage. However, these legislations do not contain irretrievable breakdown of marriage as a ground for divorce.
If the marriage has lost the actual substance and sanctity, it is prima facie that the marriage has broken down irretrievably. Historically, divorce grounds are based upon two theories, mentioned in HMA, 1955- (1) Fault Theory (2) Mutual Consent Theory.
Earlier, in Ms Jorden Diengdeh v S. S Chopra, the Supreme Court has emphasized the fact that irretrievable breakdown and mutual consent should be taken into consideration in every case of divorce which was also supported in Naveen Kohli v Neelu Kohli, where the Supreme Court had the opinion that the Central Government should strongly consider amending the HMA and recognizing the principle of irretrievable breakdown of marriage as a ground for divorce.
The concept originated in New Zealand in 1921 through the historical decision in Lodder v. Lodder[i], embracing irretrievable breakdown as a ground for divorce. If the parties reside in separation for more than 3 years, it is assumed that the marriage has irretrievably broken down.
The House of Lords in Blunt v Blunt accepted the fact that stretching legally a broken marriage to the extent that it becomes burdensome, neither benefits the couple nor serves the public interest.
On May 22, 1969, the General Assembly of the Church of Scotland suggested that there should be a substitution of irretrievable breakdown in place of matrimonial offences and exclaimed that continuous separation of at least 2 years consequent upon a decision of at least one of the parties of not living together should act as a sole evidence of breakdown of marriage.
In India, incorporation of such ground for divorce in Hindu Marriage Act, 1955 or Special Marriage Act, 1954 has not yet been made but it has been strongly suggested by 71st Law Commission Report, 217th Law Commission Report and also a Bill was presented in this regard in the Parliament titled The Marriage Laws (Amendment) Bill, 2010.
Current Position and Status in India
With regards to the current status of irretrievable breakdown of marriage in India, it can be said that the legislature has failed to include such breakdown as a ground for divorce, though Supreme Court in various cases like Bhagat v Bhagat, Krishna Banerjee v. B. Bandopadhyay has analyzed the importance of such breakdown as a ground. In Kanchan Devi v Pramod Kumar Mittal and a very recent case of R. Srinivas Kumar v R Shametha Supreme Court has well utilized its power under Article 142 of Indian constitution and has dissolved considerable marriages on the same ground.
Also Marriage Laws (Amendment) Bill, 2010 looks for making it as a ground for divorce especially protecting women. As it entitles that wife can reject the plea of divorce filed by husband but husband can’t, if the wife seeks for divorce under the said ground.
Irretrievably broken-down marriage becomes a fiction though supported by a legal tie and when court refuses to sever that tie it is unfair on their part, stretching the hopeless marriage to face more atrocity. There have been innumerable cases where courts have denied the grant of divorce decree solely on the basis of such breakdown and presented a rationale of not proving the fault in the case, like Smita Dilip Rane v. Dilip Dattaram Rane and Tapan Kumar Chakraborty v. Smt. Jyotsna Chakraborty facsimile so.
In Samar Ghosh v. Jaya Ghosh, Supreme Court referred to the 71st Report of the Law Commission of India and in Sanghamitra Singh v Kailash Chandra Singh it was held that whether the husband has clandestinely remarried or not, neither of the spouses now wants to continue the marriage so it has broken down irretrievably and granted the divorce.
Recently, in R. Srinivas Kumar v R Shametha used its power under Article 142 of the Constitution for the dissolution of marriage on the ground of irretrievable breakdown of marriage and exclaimed that despite the wife wants to continue marriage, the fact of them living in separation for more than 22 years has left with no hope of reconciliation.
A Good Ground of Divorce
Irretrievable breakdown of marriage is considered as a good ground of divorce in various countries, also the full bench of Delhi High Court in Ram Kali v Gopal Das took note on the modern trend and observed, it is unreasonable and inhumane to compel the parties to keep up the facade of marriage even though the rift between them is complete and there are no chances of reconciliation.
Divorce so granted can sometimes, if not taken care of, deteriorate the circumstances. The importance and sanctity of marriage would be hampered to a great extent as it would be in the hands of one party to provide for the breakdown, which might shoot the divorce rates exorbitantly. Women in such cases are prone to get affected more. Also, it might allow the guilty spouse to dissolve the marriage for his/ her own pleasure taking the advantage of his/ her own fault leaving other as a victim.
Conclusion and Suggestions
Court shows the scant regard for the feelings and emotions of the parties by not considering the broken marriage. Law cannot turn a blind eye to miserable situations where one of the spouses finds it laborious to continue. As is often put pithily, the marriage is merely a shell out of which the substance is gone.[ii] Such a course would encourage continuous bickering, perpetual bitterness, and may often leads to immorality.[iii] No divorce can be granted when the party being at fault seeks for divorce but can be granted where the parties have levelled such allegations against each other that marriage appears to be practically dead.
The Hindu Law should be liberalized and should adopt provisions in conformity with other countries. Irretrievable breakdown of Marriage should hence, be made a ground for divorce when the parties are living separately for a continuous period of at least 3 years or when none of them, being living in separation has filed a petition for restitution of conjugal rights or any one of the spouses has been tortured with mental or physical cruelty or in cases where the court infers that all possible means of reconciliation have been tried out but have failed.
While giving divorce on the said ground, the courts should keep in mind a few safeguards. Firstly, where a marriage is worth preserving, it ought to be preserved and secondly, while providing divorce on the said ground the persons who are likely to suffer by that like children must be taken care of.
Since judiciary is the last hope for its citizens, it should not shut the doors and should acknowledge that: -
“No reason to stay is a good reason to go”