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It is said that Marriages are made in heaven and solemnized on earth. It is a sacrament for Hindus, a sanctified contract for Muslims and a sacred knot for Christians. Husbands and wives vow for each other, yet there are innumerable cases of betrayals by the spouses.

The complexity of modern society and its possible consequences such as fast changing socio economic conditions, the disintegration of the joint family structure, the rapid development of industrialization and urbanization, education and employment and laws giving equal status and rights to women, are having a tremendous impact on the institution of marriage. Few decades ago, divorce was considered as an evil, the grounds of divorce were very limited and it was sought only under compelling circumstances. Circumstances have undergone a tremendous change now. Marriage is no longer treated as an indissoluble union. In fact, there has been a considerable legislative and judicial interference in the sphere of matrimonial laws during the past few decades all over the world. In view of the changing times, divorce laws are being substantially modified and liberalized.

Going with the requirement of the changing times, the irretrievable breakdown of a marriage will be made an additional ground for divorce under an amendment to the Hindu Marriage Act and the Special Marriage Act, as it has been approved by the Union Cabinet. The amendment would be effected through the Marriage Laws (Amendment) Bill, 2010 that would be tabled in parliament. Legally, “irretrievable breakdown of marriage”, is defined as: “The situation that exists when either or both spouses no longer are able or willing to live with each other, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties.” It can be said to be a situation that occurs in a marriage when one spouse refuses to live with the other and will not work towards reconciliation. When there is not an iota of hope that parties can be reconciled to continue their matrimonial life, the marriage can be considered as Irretrievable Breakdown of marriage.

This concept of Irretrievable Breakdown of marriage was first introduced in New Zealand. In England, the law commission of England in its report had said, “the objectives of good divorce law are two: one to buttress rather than to undermine the stability of marriage and two, when regrettably a marriage has broken down, to enable the empty shell to be destroyed with maximum fairness, and minimum bitterness, humiliation and distress.” On the recommendation of the Law commission, Irretrievable Breakdown of Marriage was made the sole ground for divorce under section 1 of the Divorce Law reforms Act, 1973 in England.

Theories of divorce

The provisions relating to divorce is contained in Sec 13 of Hindu Marriage Act, 1955. The Act recognizes two theories of Divorce: the fault theory and divorce by mutual consent. Under the fault theory, marriage can be dissolved only when either party to the marriage had committed a matrimonial offence. Under this theory it is necessary to have a guilty and an innocent party and only innocent party can seek the remedy of divorce. However the most striking feature and drawback is that if both parties have been at fault, there is no remedy available.

The other theory of divorce is that of mutual consent. The underlying rationale is that since two persons can marry by their free will, they should also be allowed to move out of their relationship of their own free will.

Some of the grounds available under Hindu Marriage Act can be said to be under the theory of frustration by reason of specified circumstances. These include civil death, renouncement of the world etc.

Judicial opinions

The judiciary was also reluctant to grant divorce solely on the grounds of irretrievable breakdown of marriage. In Y. Narsimha Rao v. Y. Venkata Lakshm (1991) 3 SCC 452, the Supreme Court of India clearly stated that irretrievable breakdown of marriage is not a ground of divorce under the Hindu Marriage Act, 1955. This viewpoint was reiterated in the case of V. Bhagat v. D.Bhagat AIR 1994 SC 710, where court stated that irretrievable breakdown of marriage is not a ground by itself.

But then the Supreme Court has adopted a literal view and granted divorce under irretrievable breakdown of marriage. In Ashok Hurra v. Rupa Bipin Zaveri, AIR 1997 SC 1266, the husband and wife filed a suit for divorce by mutual consent. But, subsequently wife withdrew her consent. So the petition was dismissed by trial court. The Supreme Court held that “we are of the view that cumulative effect of various aspects involved in the case indisputably point out that marriage is dead both emotionally and practically, and there is no chance at all of the same being revived and continuation of such relationship is only for name-sake. The Honble Court used Article 142 and granted divorce. The Delhi High Court in its full judge bench decision in Ram Kali v. Gopal Das, 1971 I.L.R. 1 Delhi 10, took note of modern trend not to insist on maintenance of an union which was broken and said, it would be practical and realist approach, indeed it would be unreasonable and unhumane, to compel the marriage to keep up the facade of marriage even though the rift between them is complete and there are no prospects of their living together as husband and wife.

In the case of Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591, the Supreme Court reiterated the need for the inclusion of irretrievable breakdown of marriage as a ground for divorce. The Supreme Court in Manjula v. K.R. Mahesh JT 2006 (7) SC 220, held, the marriage has irretrievably broken down and there would be no point in making an effort to bring about conciliation between the parties.

In 2003, the Supreme Court in Naveen Kohli v. Neelu Kohil, 2006(3) SCALE 252, recommended an amendment to the Hindu Marriage Act, whereby either spouse can cite irretrievable breakdown of marriage as a reason to seek divorce. Expressing the concern that divorce could not be granted in number of cases where marriages were virtually dead due to the absence of the provision of irretrievable breakdown, the court strongly advocated incorporating this concept in the law in view of the change of circumstances.

After referring the matrimonial laws of various countries and reports including one by eminent international jurist Salmond who held that, divorce should be seen as a solution and escape route of a difficult situation, the Bench comprising Justice B. N. Agarwal, Justice A. K. Mathur and Justice Dalveer Bhandari said, “we have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of the fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of separation it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever the tie the law in such cases do not serve the sanctity of marriage, on the contrary, it shows scant regard for the feelings and emotions of the party.”

Briefly the facts of the case were that, the petitioner, Naveen Kohli, a reputed businessman of Uttar Pradesh, who was married to Neelu Kohli in 1975 and had three sons from their wedlock, had alleged that his wife constantly harassed him by filing false cases against him and she had relationship outside the marriage. The wife also alleged that the husband had kept a concubine with him. The trial court (Family Court) had allowed the divorce plea of the husband directing him to deposit Rs.5 lakh towards permanent maintenance of the wife. It, however said that both of them failed to prove the allegation of character assassination. Thereafter the wife appealed in the Allahabad High Court for granting divorce, the High Court held that, the trial court had not properly evaluated the evidence. It held that the husband was living with another woman. The wife’s appeal was allowed and the suit for divorce by the husband dismissed. On appeal by the husband, the apex court after considering the facts and circumstances of the case and 17 cases filed by the wife against her husband, set aside the High Court judgment.

The Supreme Court held that, “in our considered view, looking to the peculiar facts of the case, the High Court was not justified in setting aside the order of the trial court.” The apex court further observed, “in our considered opinion, wisdom lies in accepting the pragmatic reality of life and take a decision which would ultimately be conducive in the interest of both the parties’’.

The Court observed that public interest demands that the married status should, as far as possible, as long as possible and whenever possible, be maintained. However, where a marriage has been wrecked beyond any hope of being repaired, public interest requires the recognition of the fact. The judgment further noted that there was no acceptable way in which a spouse can be compelled to resume life with the consort and that situations causing misery should not be allowed to continue indefinitely and that law has a responsibility to adequately respond to the needs of the society. The primary reasoning was that in situation when there is absolutely no chance to live again jointly or when it is beyond repair, in such a case it would be futile to keep the marital tie alive.

In view of the recommendation of the Supreme Court in Naveen Kohli v. Neelu Kohli, the Law Commission of India suo motu took up the study of the subject. The Commission examined the extant legislations as well as a number of judgments of the Supreme Court and High Courts on the subject and was of the view that “irretrievable breakdown of marriage” should be incorporated as another ground for granting divorce under the provisions of the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. The Court before granting a decree for divorce on the ground that the marriage has irretrievably broken down should also examine whether adequate financial arrangements have been made for the parties and children.

The Law Commission’s view on Irretrievable breakdown of marriage

The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it.

Prior to this Report, the Law Commission of India had already submitted a very comprehensive 71st Report on irretrievable breakdown of marriage as a ground of divorce in 1978. The Report considered the suggestion and analyzed the same in extenso. The Commission in its 71st Report accepted in principle irretrievable breakdown of marriage as a ground of divorce and also examined the question as to how exactly to incorporate it into the Act and also further examined the question whether the introduction of such a ground should be coupled with any safeguards.

Conclusion

With the amendment in sight, there may be oppositions by traditionalists as the ground does not fall in line with Hindu traditions, which regards marriage as a bond for life. Marriage is too complex to allow for an easy way out, while people always seek easier options in life. Marriage requires effort from both partners, and this wears people out. So the new ground for divorce may let people take the easy route. Further, the other concern is that the clause would eliminate any room for settlement. Another opposition is that the amendment is not compatible with the psycho-social social structure in India. It offers umpteen possibilities for misuse, especially by the younger generation. They are concerned about the youngsters as they are believed to take impulsive decisions and knowing that a misunderstanding between the two could grant them a divorce might result in disturbing situations. The other resistance is that on such a ground husbands could desert their wives and then ask for divorce under breakdown of marriage. However to tackle such situations, a safety clause can be inserted which would empower the court to refuse divorce if it adversely affects the interests of the children. A provision for maintenance for child and wife should be made. Moreover in a very recent judgment, the Supreme Court has ruled that if a spouse, by his or her conduct, brings marriage to a point of breakdown, s/he can not be allowed to seek divorce on this ground. The court categorically stated no one can be given the benefit of his or her own misdeeds. In view of this, it expected that once the amendment is carried out, courts can cautiously and judicially, apply their mind and grant or not grant divorce on this ground while safeguarding the interests of the affected parties. But the need of the changing times is surely in favour of the amendment so that many couples can be saved from the disgrace and humiliation by introducing the irretrievable breakdown of marriage as a ground for divorce under Section 13 of the Hindu Marriage Act, 1955.

BY LAWZ BUREAU