Jyoti Sharma | National Law University and Judicial Academy Assam | 27th October 2019
Introduction
Marriage is a sacred institution and it is the very foundation of a stable family and civilized society. Under Hindu Law, marriage is regarded as sacrament which is eternal and indissoluble. But there is also a concept of divorce in Hindu law. The term ‘divorce’ comes from the latin word ‘divortium’ which means to turn aside; to separate. It is the legal cessation of a matrimonial bond. According to Derrett[1] in one of his study remarked that- “Divorce was introduced into Hindu Law for the protection of helpless women when they were ill treated. It was never Parliament’s intention to give husbands matrimonial variety at their option so long as they could remain a pleader”. Not until a few decades back , divorce was abhorred as an evil; the grounds for divorce was very limited and it was sought only under compelling circumstances. Things have, however changed now and marriage is no longer viewed as an indissoluble union. In view of the needs of changing times, divorce laws has been substantially liberalized. The Hindu Marriage Act, 1955 revolutionised the matrimonial laws and provided for divorce on several grounds. Initially the grounds were based on fault on the part of the respondent. Later the theory of breakdown was further advanced by amendment in s. 13(1) cls. (viii) and (ix) in 1964 and in 1976 divorce by mutual consent was introduced.[2] Thus over the years, the Indian legislature has attempted to introduce irretrievable breakdown of marriage as a ground for divorce according to the changing needs of the society. However discussions and deliberations for so many years have not led to any consensus on whether irretrievable breakdown of marriage as a ground for divorce should be introduced or not.
History of Irretrievable Breakdown Theory of Marriage
The concept of Irretrievable breakdown of marriage was for the first time introduced in New Zealand where it was recognized that it needn’t be necessary for there to be some fault or other for a spouse to want to opt out of a marriage and hence the law has to recognize and cater to that requirement. The first divorce in the ground of Irretrievable breakdown of marriage was granted by the court in New Zealand in 1921. The Court held that “when matrimonial relations have ceased to exist, it is not in the interests of the parties nor in the interest of the public to keep the man and woman bound as husband and wife in law”. Then in England it was the case of Masarati v. Masarati[3] that introduced the theory of breakdown and the 1943 House of Lord decision in the case of Blunt v. Blunt [4]made it increasingly accepted that no public interest was served by keeping legally in existence a marriage which had in fact broken down.
From the Indian context, The Law Commission of India, in its seventy-first report[5] recommended the introduction of irretrievable breakdown of marriage as a ground for divorce. According to the report- “Restricting the ground of divorce to a particular offence or matrimonial disability causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such nature that the parties to the marriage cannot be worked. In such circumstances there is hardly any utility in maintaining the marriage as a façade, when the emotional and other bonds which are of the essence of marriage have disappeared.” Then in 1981, a bill was introduced providing for irretrievable breakdown of marriage as a ground for dissolution of the marriage but it did not get through as some groups felt that unscrupulous husbands would desert their wives and take advantage of this provision[6]. In 2009 once again, the Law Commission of India has, vide is 217th Report, recommended the incorporation of irretrievable breakdown of the marriage as another ground for divorce. Pursuant to that and Apex court recommendations, another bill was introduced- The Marriage Laws (Amendment) Bill 2010 and then the Marriage Laws (Amendment) Bill, 2013. However the statutory provision as it stand today is that simple breakdown of the marriage per se is no ground for divorce under any of the personal laws in India. Thus, there have been innumerable cases where the marriage was in fact utterly broken, but the courts tied down by the technicalities of the law, could not give any meaningful relief to the parties. It is however evident that legislative as well as judicial trends are heading towards the introduction of irretrievable breakdown as a specific ground for divorce.
Conceptual Framework of Irretrievable Breakdown Theory of Marriage.
According to the legal definition[7], Irretrievable breakdown theory of law can be defined as-
“The situation that exists when either or both spouses are no longer able or willing to live with each other, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties.” The Irretrievable breakdown of marriage is the most controversial theory in legal Jurisprudence. Marriage is the union of two persons which is based on the love and affection and respect for each other. If any of these is hampered due to any reasons or if there is a failure in the matrimonial relationship between the spouses that reaches to such an extent that both the spouses are no longer willing to live with each other peacefully then it is better to dissolve such a dead relationship which exists only in name not in reality[8].
This means that if the couple can no longer live together as husband and wife then they must prove to the court that the marriage broke down and there is no reasonable chance of living together. Although the Hindu Marriage Act in Section 13 recognizes few grounds for the dissolution of marriage but irretrievable breakdown of marriage is not a ground for divorce under Hindu Marriage Act, 1955. The Supreme Court in its various landmark cases have shown its concern of making irretrievable breakdown of marriage as a ground for divorce. But, ultimately it is for the legislature to decide whether to include irretrievable breakdown of marriage as a ground of divorce or not but the legislature must consider irretrievable breakdown of marriage as a ground to grant divorce under the Hindu Marriage Act, 1955.
Merits and Demerits of Irretrievable Breakdown of Marriage
The Irretrievable breakdown of marriage has its own merits as well as demerits. Marriage is considered to be a sacramental institution which is based on respect, truth, love towards each other. If the matrimonial relation results into a failure where parties develop strong hatred for each other and is not willing to live with each other there is no point in stretching such a dead relationship. Therefore in order to protect the real sanctity of marriage and to reduce the number of unhappy marriages, to prevent from getting wasted the precious years of the spouses it is better to dissolve such marriage. One of the most vital aspect of this theory is that the Marriage Law Amendment Bill, 2010 provides advantage to the women. According to the amendment the wife can oppose a husband plea for divorce but the husband will have no such right to oppose. Another merit of this theory is that Marriage Laws (Amendment) Bill, 2010 provides the wife and children a clearly-defined share in the husband’s immovable property in case of divorce.
The theory also has some demerits as well. The Law Commission of India in its 71st report has stated two strong opposition relating to the demerit of this theory.
Firstly it stated that if the irretrievable breakdown of marriage is made as a ground for divorce then it will make the divorce easy and the sanctity of the marriage in India will get easily destroyed. Secondly it stated that it will allow the guilty spouse to dissolve the marriage out of his own pleasure and he/she will take the advantage of his own fault by dissolving the marriage.
Another demerit of this theory is that if irretrievable breakdown of marriage is introduced as a ground for divorce in India there are chances of increased divorce rates in India, specially women being a victim in the case.
Judicial Attitude
Even though irretrievable breakdown of marriage has not been stated under Section 13 of the Hindu Marriage Act, 1955 as a ground for divorce, there have been many judgments which gave decisions based on the principle. To further understand the scope of the model, few landmark case laws have been discussed:
In the case of V. Bhagat v. D. Bhagat[9], the Supreme Court observed: “We reach this conclusion of granting divorce without any mental compunction because it is evident that for whatever be the reasons, this marriage has broken down and the parties can no longer live together as husband and wife ; if such is the situation it is better to close the chapter.”
In the case of Sanghamitra Singh v. Kailash Chandra Singh[10], a husband sought divorce. The wife informed the court that the husband had already clandestinely married another lady and a criminal case had already been filed against him. Granting the divorce, the court observed: “Whether the husband has married for second time or not, it is not clear that the marriage has irretrievably broken down and none of the parties wants restoration of marital tie. Accordingly, by applying the doctrine of ‘irretrievable breakdown’, we grant a decree of divorce upon consent of both the parties.” Likewise in the case of Amma Khatoon v. Kashim Ansari[11], was a case under the Dissolution of Muslim Marriages Act, 1939 where the Jharkhand High Court dissolved a marriage on ground of irretrievable breakdown of marriage by invoking s. 2(ix) of the Act, i.e ‘any other ground which is recognized as valid for the dissolution of marriages under muslim Law.”
The argument of irretrievable breakdown, however did not find favour with the Calcutta High Court in Swapan Kumar Ganguly v. Smiritikana Ganguly [12]as according to the court, the state of being a married woman and not a divorcee or spinster by itself is a great protection to a woman in our society and this fact cannot be overlooked even where parties admittedly cannot live together.
A judgment which is very significant in this context is Naveen Kohli v. Neelu Kohli[13]. The Supreme Court made a strong plea for incorporating irretrievable of the marriages as a ground for divorce under the Hindu Marriage Act, 1955. The husband filed a petition for divorce on the ground of cruelty making several allegations against the wife; the wife too made several allegations and also criminal complaints against the husband. The family court at Kanpur granted the decree. Against this the wife filed an appeal before the Division bench of Allahabad High Court which set aside the divorce decree; thereupon the husband filed a special leave petition under Article 136 of the Constitution of India. The court after analyzing in great detail the facts and circumstances of the case held that- “Once 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 interest of the parties.”
Present Status of Irretrievable Breakdown of Marriage In India
With regard to the current status of irretrievable breakdown of marriage it can be inferred that although the law making body has failed to amend the law to include irretrievable breakdown of marriage as a ground for divorce though the Law Commission of India has recommended the same way back its 71st Report and 217th Report but the Supreme Court in its various cases have analysed the importance of irretrievable breakdown of marriage as a ground for divorce. The Supreme Court have exercised its power under Article 142 of the Indian Constitution and have dissolved marriages on the ground of breakdown theory. Infact, Marriage Laws (Amendment) Bill, 2010 seeks to make Irretrievable breakdown of marriage as a ground for divorce. The amendment which was included in this bill provided advantage to the women. The amendments states that a wife can oppose a husband’s plea for a divorce under the “Irretrievable breakdown of marriage” clause but the husband will have no such right to oppose if the wife moves the court on the same ground. On 26th August 2013 the bill was passed by the Rajya Sabha however it was not taken up for discussion in Lok Sabha.
Given the current scenario the Supreme Court in its latest case, R. Srinivas Kumar v. R. Shametha, 4th October 2019 used its inherent power under Article 142 of the Constitution of India for dissolution of marriage on the ground of ‘Irretrievable breakdown of Marriage’. In this case for the last two decades the petitioner was fighting a legal battle for divorce and his plea was rejected by the lower court as well as the Andhra Pradesh High Court. The Supreme Court bench consisting of Justice S.K Kaul and M R Shah applied the inherent power under Article 142 of the constitution to do complete Justice and allowed the petition claiming that the marriage had irretrievably broken down. In this case the Supreme Court held that – “In the present case, admittedly, the husband and wife have been living separately for more than 22 years and it will not be possible for the parties to live together. Therefore we are of the opinion that while protecting the interest of the respondent wife to compensate her by way of lump sum permanent alimony, this is a fit case to exercise the powers under Article 142 to dissolve the marriage between the parties.”
So, when a “Wedlock becomes deadlock” the court analyses the case and if the circumstances goes to such an extent that the marriage is beyond repair then accordingly the court grant dissolution of marriage based on the concept of breakdown theory. However irretrievable breakdown of marriage has not been inducted as a ground for divorce in the Indian legal context but if in the future if it is incorporated in law then it should be hedged with sufficient safeguards and applied with utmost discretion.
Conclusion
Divorce laws are being continually liberalized
to meet the needs of changing times and facilitate liberation of spouses living
in an unworkable relationship. Mutual consent is a major step in this direction
but not often even when a marriage has utterly broken, one of the spouses might
withhold consent to a mutual divorce. Jurists, academicians and courts, as well
as the Law Commission of India have recommended that irretrievable breakdown of
marriage be made a ground for divorce. Of late, courts are inclined to dissolve
a marriage where there appears to be no chance of the parties living happily in
the relationship. But, Irretrievable breakdown per se, however is not enough
and courts invoke a statutory ‘ground’ and in view of the cumulative facts,
grant relief to the parties. Infact, Supreme Court in its various judgments has
recommended the inclusion of irretrievable breakdown as a ground for divorce
but such law is in the offing now. So,it can be finally concluded that
irretrievable breakdown of marriage should be recognized as a ground for
divorce in India. The grounds when introduced needs to provide safeguards to
ensure that it is not misused and no party is exploited.
[1] J. Duncan M. Derrett, A Critique of Modern Hindu Law, (1970) pp. 329
[2] Kusum, “Irretrievable breakdown of marriage: A ground for divorce”, Indian Law Institute, Vol 20:2
[3] [1969] 1 WLR 393, CA
[4] [1943] AC 517, HL
[5] ‘Irretrievable Breakdown of Marriage as a Ground for Divorce’, 1978.
[6] B. Sivaramayya, ‘Irretrievable breakdown of marriage as a ground for divorce: Gateway to liberalization or oppression,’ in Kusum (ed), Women: March Towards Dignity, 1993, pp. 56-62.
[7] West Encyclopedia of American Law Edition
[8] Paras Diwan, “Law of marriage and divorce”, Universal law publishing and Co., 6th Edition, 2011, pg. 29
[9] AIR 1994 SC 710, P. 721 : (1994) 1 SCC 337
[10] AIR 2001 Ori 151 : (2001) 91 CLT 404
[11] AIR 2001 Jhar 28
[12] AIR 2002 Cal 6 : (2002) I DMC 433
[13] AIR 2006 SC 1675 : (2006) 4 SCC 558
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