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Introduction:-
Marriage constitutes the very basis of social organization. Hindu
law regards marriage as a sacrament-
indissoluble and eternal.
This sacramental character of marriage has given rise to certain
anomalies. The declaration of Manu that
neither by
sale nor by desertion is wife released from the husband
was applied only to women and not men. Thus there was an element
of inherent injustice on the wife in Hindu law. To counter such
inequalities among spouses and to protect the sacramental aspect
of marriage, Hindu Marriage Act, 1955 was enacted which provided
certain matrimonial remedies.
Marriage is an institution in the maintenance of which the public
at large is deeply interested. It is the foundation of the family
and in turn of the society without which no civilization can
exist. A marriage solemnized, whether before or after the
commencement of the Hindu Marriage Act, 1955 can only be dissolved
by a decree of divorce on any of the grounds enumerated in Section
13 of the Act. Till the time a Hindu marriage is dissolved under
the Act none of the spouses can contract second marriage. Thus, it
is obvious from the various provisions of the Act that the modern
Hindu Law strictly enforces monogamy. Even under the Muslim Law
plurality of marriage is not unconditionally conferred upon the
husband. Muslim law as traditionally interpreted and applied in
India permits more than one marriage during the subsistence of one
and another though capacity to do justice between co wives in law
is condition precedent.
As per the Hindu Law administered by courts in India divorce was
not recognized as a means to put an end to marriage, which was
always considered to be a sacrament, with only exception where it
is recognized by custom. Public policy, good morals and the
interests of society were considered to require and ensure that,
if at all, severance should be allowed only in the manner and for
the reason or cause specified in law.
One of the causes expressly recognized by law is the legal
sanction of a valid custom to dissolve a marriage. Thus the rules
of dissolution of marriage and monogamy are subject to a valid
custom to the contrary. This shows that the law relating to
marriage and divorce of Hindus has an inverse relationship with a
recognized valid custom.
Divorce Law
In India
There was a time when it was believed that the marriages were
arranged in heaven, and it used to be a relation of flesh with
flesh and bone with bone. So the question of separation from each
other was a far cry. But slowly and steadily this concept did not
find favour with social reformers, who wanted that a woman must
not be chained with a man who is completely devoid of all the
virtues that a reasonable husband should have. The British
Government frowned upon any effort to make radical changes in the
provisions of Hindu Law, although Hindu reformers were agitating
for such changes from time to time.
The Hindu
Marriage Act, 1955 came into existence, eight years after the
independence of the country. Section 13 of the Hindu Marriage Act
deals with the grounds on which the parties can seek a decree of
divorce from a competent court having jurisdiction to entertain
such petition. In the literal sense
"divorce"
means a legal separation of two persons of the opposite sex who
desire to respect and honor each other.
Irretrievable Breakdown Of Marriage
This means the couple can no longer live together as man and wife.
Both partners, and one partner, must prove to the court that the
marriage broke down so badly that there is no reasonable chance of
getting back together.
Till date, the prevailing laws in India regarding the issue of
divorce have not recognized a situation where the spouses are
facing a situation that despite the fact that they live under the
same roof, their marriage is equivalent to a separation. That is,
there is still no codified law for irretrievable breakdown of
marriage. The Hindu Marriage Act recognize few grounds for
dissolution of marriage in Section 13.But with the change in the
social mores and in view of the changing nature of marriage in the
society, the supreme court has shown special concern over the
matter of making irretrievable breakdown of marriage as a ground
for divorce. The Supreme Court has with a view to do complete
justice and shorten agony of the parties engaged in long drawn
battle, directed dissolution of marriage. Indeed, these were
exceptional cases, as the law does not specifically provides for
the dissolution of marriage on the grounds other then those given
in Hindu Marriage Act, 1955. Irretrievable breakdown of marriage
is not a ground for divorce under the Hindu Marriage Act, 1955.
Because of the change of circumstances and for covering a large
number of cases where the marriages are virtually dead and unless
this concept is pressed into services, the divorce cannot be
granted. Ultimately, it is for the Legislature whether to include
irretrievable breakdown of marriage as a ground of divorce or not
but in our considered opinion the Legislature must consider
irretrievable breakdown of marriage as a ground for grant of
divorce under the Hindu Marriage Act, 1955.
Examples of the kind of evidence the court will accept as proof of
irretrievable breakdown:
# The couple has not lived together like husband and wife for a
period of time.
# One partner had sexual intercourse with somebody else and
because of this the other partner finds it impossible to continue
living together as husband and wife.
# One partner is in prison after being declared an 'habitual
criminal'. (This means he or she keeps committing crimes, and
because of this was sentenced to 10-15 years in prison.)
# One partner deserted the other.
# One partner abused the other, for example the husband keeps
assaulting the wife.
# One partner is an alcoholic or a drug addict.
# The partners no longer love each other - they may be too
different, or they married when they were too young. - One of the partners finds it impossible to live together as
husband and wife for any other reason.
. In
A. Jayachandra v. Aneel Kaur,
the Supreme Court examined such cases. And after discussing the
fact concluded thus:
When the
respondent gives priority to her profession over her husband’s
freedom it points unerringly at disharmony, diffusion and
disintegration of marital unity, from which the Court can deduce
about irretrievable breaking of marriage.
The Court found the marriage irretrievably broken down and granted
divorce to the husband. This is however very surprising, as many a
times in the similar circumstances the court, rather then granting
a decree for divorce has ordered for the restitution of conjugal
rights holding the notion of a Hindu marriage being sacrosanct as
the very foundation of decree for restitution.
The idea
behind the declaration of irretrievable breakdown of marriage is
also based on the consent as it play a major role in the
occurrence of a valid marriage. Since consent is accorded primacy
at the time of marriage, it follows that when one or both parties
believe that the marriage has broken, they can petition for
divorce. When both parties agree the marriage has failed, they can
apply for divorce by
"mutual
consent".
When only one of the parties believes that the marriage is
failing, it would be enabling for the party to seek divorce
arguing that the marriage has broken down, despite the
unwillingness of the other party to end the relationship.
However,
except in the Islamic law,
"irretrievable
breakdown of marriage"
is not found in any legislation as a specific ground for divorce.
There are five central concerns about bringing the ground of
irretrievable breakdown of marriage into the divorce statute.
These are:
1) Marriage relationship is accorded sanctity in our society,
which would be treated with levity if this ground of divorce is
available;
2) Divorce carries social stigma, especially to the wife;
3) This ground permits husbands to terminate a marriage
relationship at will;
4) This ground could be misused by an errant husband and;
5) That subjective elements exist in the understanding of
"irretrievability"
and
"breakdown".
Recognition of irretrievable breakdown of marriage as a ground for
divorce requires to set aside our notions of the sanctity of the
marriage relationship. The sanctity that such relationship has
arises only from the exceptional sharing and trust that such
relationship involves, and cannot be sustained on external notions
of unity and obligation. Related to this is the issue of stigma,
which we need to overcome and address instead of the dependencies
arising out of such relationships. This would matter tremendously
in helping the woman regain some measure of confidence.
The last three objections can be dealt with together, by
introducing in the ground for irretrievable breakdown, adequate
safeguards which introduce objective elements to determine when
there is an irretrievable breakdown, and providing for the
ancillary issues in the marriage relationship to be resolved as a
condition for grant of divorce. This would include financial
support to the spouse and children, arrangements on the custody of
the children, distribution of the property of the spouses, etc.
Where the spouse applying for the divorce has committed a wrong,
this could be a factor in determining the maintenance granted to
the other spouse. While this ground may seem an attractive and
easy option, the introduction of objective factors to determine
breakdown will ensure that this ground is not opted for on whim or
an impulse.
Why
Irretrievable Breakdown?
The theoretical basis for including the irretrievable breakdown of
marriage as a ground for divorce is now commonly known among
lawyers and jurists. 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 a nature that the
parties to the marriage do not wish to divulge it, yet there has
arisen a situation in which the marriage cannot be worked; that
is, where the marriage has all external appearances of marriage
but none of the reality. In such circumstances, there is hardly
any utility in maintaining the marriage as a façade, when the
emotional and other bounds which are the essence of marriage have
disappeared. After the marriage has ceased to exist in substance
and in reality, there is no reason for denying divorce. In a
situation like this, the parties alone can decide whether their
mutual relation is emotionally and socially real and strong or
not. Divorce should be seen as a solution and a way out of a
difficult situation. Such divorce should not be concerned with the
wrongs of the pasts, but must focus on bringing the parties and
the children to terms with the new situation and developments by
working out the most satisfactory basis upon which they may
regulate their relation in the changing scenario.
One of the facts from which the irretrievable breakdown can be
presumed is, whether the husband and wife have been living apart
continuously for a long time. However, living apart should be the
only proof of irretrievable breakdown. Thus, it is not enough for
the parties to aver that there as been an irretrievable breakdown
of marriage. Such an averment must be substantiated and the fact
that the parties to a marriage have not lived together for a long
period of time can reasonably taken to be a tangible presumptive
proof of the breakdown of marriage . In
Sandhya Rani v. Kalyanram
Narayanan reported in (1994) Supp. 2 SCC 588, this Court
reiterated and took the view that since the parties are living
separately for the last more than three years, we have no doubt in
our mind that the marriage between the parties has irretrievably
broken down. There is no chance whatsoever of their coming
together. Therefore, the Court in such cases, grant the decree of
divorce.
Matrimonial matters are matters of delicate human and emotional
relationship. It demands mutual trust, regard, respect, love and
affection with sufficient play for reasonable adjustments with the
spouse. The relationship has to conform to the social norms as
well. The matrimonial conduct has now come to be governed by
statute framed, keeping in view such norms and changed social
order. It is sought to be controlled in the interest of the
individuals as well as in broader perspective, for regulating
matrimonial norms for making of a well-knit, healthy and not a
disturbed and porous society. The institution of marriage occupies
an important place and role to play in the society, in general.
Therefore, it would not be appropriate to apply any submission of
"irretrievably broken marriage" as a straitjacket formula for
grant of relief of divorce. This aspect has to be considered in
the background of the other facts and circumstances of the case.
Merits And
Demerits Of The Theory Of Irretrievable Breakdown
Before discussing the merits and demerits of the theory of
irretrievable breakdown, a question arises, that whether the Hindu
Marriage Act can be amended with a view to making irretrievable
breakdown of marriage as a good ground for grant of a decree of
divorce? In seeking answer to the question we have to bear in mind
the changing nature of the family. The family is becoming more
democratic and more egalitarian. Both the husband and wife share
not only the family house; in some cases they also share the
earnings of each other. Because of the rising rate of female
activity, the family unit is more of a coalition. It is therefore
necessary that if the coalition cannot be worked, the legal
sanction for it must be withdrawn.
In answer to the obligation that the ground of irretrievable
breakdown of marriage is vague, it may be stated that the
petitioner has to satisfy the court of a concrete fact- living
apart for a sufficient length of time. Judges have thus to
adjudicate on facts (not on some vague concepts) the question
whether or not, on the evidence before them, the parties have been
living apart for the specified period.
A law of divorce based mainly on fault is inadequate to deal with
a broken marriage. Under the faulty theory, guilt has to be
proved; divorce courts are presented concrete instances of human
behaviour as bring the institution of marriage into disrepute.
Because of the divorce of matrimonial offence, judges, and lawyers
are sometimes reduced to the role of scavengers. The lawyers have
to look for and expose and the judges are confronted with, the
worst obscenities within a married life. It is therefore, not
surprising that with the present adversary system all types of
allegations are freely hurled across the courtroom. We need not
stand on an old divorce law which demands that men and women must
be found innocent or guilty. It is desirable to get rid o the
public washing of dirt linen which takes place in long drawn-out
cruelty cases or in cases based on fault. If divorce is allowed to
go through on the ground of marriage breakdown, such an unhappy
spectacle will be avoided.
One cannot say that it is an enhancement of the respondent for
marriage if there are tens of thousands of men and women
desperately anxious to regularize their position in the community
and they are unable to do so. People should be able to marry again
where they can obtain a death certificate in respect of a marriage
already long since dead. The objection that irretrievable
breakdown as a ground of divorce is vague has been already dealt
with. Other objections to it may be dealt with-
a) Irretrievable breakdown allows the spouses, or even one spouse,
to terminate the marriage at will, thus transforming marriage from
a union for life into one which can be ended at pleasure,
b) It is necessary to the basic principle that no man should be
allowed to take advantage of his own wrong; a spouse who was
responsible for the breakdown of marriage should not be able to
rely on such breakdown in order to obtain a divorce against his or
her partner’s will. By authorizing one spouse to divorce the other
against the latter’s will after separation for a specific period,
the law will have given statutory recognition for the first time
to the principle that a person may take advantage of his or her
own wrong.
The theory that one cannot take advantage of one’s own wrong has
not been adhered to in the Hindu Marriage Act in the past.
According to clause (ii) of sub section (1A) of section 13 of the
Act, either party to a marriage, whether solemnized before or
after the commencement of this Act, may present a petition for the
dissolution of the marriage by a decree of divorce on the ground
that there has been no restitution of conjugal rights as between
the parties to the marriage for a period of one year or afterwards
after the passing of a decree for the restitution of conjugal
rights in proceedings to which they were parties. This provision
clearly contemplates that even the party which has been in the
wrong in so far as it has failed to comply with a decree for
restitution of conjugal rights can also apply for a decree of
divorce on the ground that there has been no restitution of
conjugal rights as between the parties to the marriage for a
period of one year or upwards after the passing of the decree for
restitution of conjugal rights in a proceeding to which they were
parties. Such a party, though at fault, would thus be taken
advantage of its own fault. It cannot therefore be said that under
the provision of the Hindu Marriage Act, as they stand at present,
no person can be allowed to take advantage of his own wrong.
Thus, once the marriage has broken down beyond repair, it would be
unrealistic for the law not to take notice of that fact, and it
would be harmful to society and injurious to the interests of the
parties if the legal bond is sought to be maintained
notwithstanding the disappearance of the emotional substratum.
Such a course would encourage continuous bickering perpetual
bitterness, and may often lead to immorality. Where there has been
a long period of continuous 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
that tie the law in such cases does not serve the sanctity of
marriage; on the contrary, it shows scant regard for the feelings
and emotions of the parties.
Public interests demands not only that the married status should,
as far as possible, as log as possible, and whenever possible, be
maintained, but also that the court should be empowered to declare
defunct de jure what is already defunct de jacto, where a marriage
has been wrecked beyond the hope of salvage, public interest lies
in the recognition of that fact. To keep the sham is obviously
conducive to immorality and potentially more prejudicial to the
public interest than dissolution of the marriage bond.
Since there is no acceptable way in which a spouse can be
compelled to resume life with the consort, nothing is gained by
trying to keep the parties tied for ever to a marriage that in
fact has ceased to exit. Marriage is life long cohabitation in the
home. When the prospect of continuing cohabitation has ceased, the
legal tie should be dissolved.
71st
Report Of The Law Commission Of India (1978)
The Law Commission in its 71st report, submitted in 1978, dealt
with the concept of irretrievable breakdown of marriage. The
report deals with an important question concerning the Hindu
Marriage Act, 1955, whether irretrievable breakdown of marriage
can be made a ground for divorce under that Act and if so, to what
extent and subject to what conditions?
The Report
mentions that as far back as 1920, New Zealand was the first of
the Commonwealth countries to introduce the provision that a
three-year or more separation agreement was grounds for filing a
petition in the courts for divorce. In 1921, in the first case of
the granting of divorce on these grounds in New Zealand, the court
laid down that when matrimonial relations have, in fact, ceased to
exist it is not in the interests of the parties or in the interest
of the public to keep a man and woman bound as husband and wife in
law. In the event of such a separation, the essential purpose of
marriage is frustrated and its further continuance is
not merely
useless but mischievous.
This formulation has become a classic enunciation of the breakdown
principle in matrimonial law.
The Law Commission observed that restricting divorce to
matrimonial disability results in an injustice in cases where
neither party is at fault, or if the fault is of such a nature
that the parties do not wish to divulge it and yet the marriage
cannot be worked out. It refers to a situation where the emotional
and other bonds, which are the essence of marriage, have
disappeared and only a façade remains. The commission concludes
that where a marriage has ceased to exist both in substance and in
reality, divorce should be seen as a solution and an escape route
out of a difficult situation. Such a divorce should be concerned
with bringing the parties and the children to terms with the new
situation and working out a satisfactory basis for regulating
relationships in the changed circumstances. Not to dwell on the
‘wrongs’ of the past.
Fault
Theory V. Breakdown Theory
In most of the cases, the question confronted by the Hon’ble
Supreme Court is should divorce be granted solely on the basis of
who is
‘at fault’?
Or should ‘irretrievable breakdown’ of a marriage be cause for
divorce?
The Hindu
Marriage Act governing marriages between Hindus, and the Special
Marriage Act governing marriage between individuals regardless of
religious persuasion, are premised on the ‘fault’ or ‘matrimonial
offence’ theory for the purpose of divorce. This, in effect, means
that a person can be granted a divorce if, for example, it is
established that the spouse has committed adultery, or has treated
the person cruelly or deserted for more than two years. Thus the
person has been
at fault
in some way. In addition, the wife can ask for a divorce on
grounds that after marriage her husband was guilty of rape, sodomy
or bestiality.
Part of the
fault theory is that a person cannot take advantage of his/her own
wrong. Divorce can only be sought by the hurt or aggrieved party
who has been at the receiving end of the other party’s offending
conduct. There has been an ongoing debate about whether divorce
should be granted solely on the basis of the
fault of the
party
or whether it should be based on the breakdown of marriage.
Opinions remain divided among sociologists, lawmakers, reformers
and even activists and feminists
Marriage as a sacrament, society’s stake in the continuance of
marriage, the duty of judges to effect reconciliation between the
parties, and public interest are some of the major factors that
feature in this debate. Would introducing irretrievable breakdown
as grounds for divorce work against the interests of women, given
the gender disparities and large number of women deserted by their
husbands?
In the recent case of
Naveen Kohli v. Neelu Kohli
, the Supreme Court held that situations causing misery should not
be allowed to continue indefinitely, and that the dissolution of a
marriage that could not be salvaged was in the interests of all
concerned. The court concluded that the husband was being
mentally, physically and financially harassed by his wife. It held
that both husband and wife had allegations of character
assassination against them but had failed to prove these
allegations. The court observed that although efforts had been
made towards an amicable settlement there was no cordiality left
between the parties and, therefore, no possibility of
reconnecting
the chain of marital life between the parties
Criticism
The concept of irretrievable breakdown of marriage to be made a
ground for divorce under the Hindu Marriage Act, 1955 has been
although a lot more debated but it has equally been criticized at
various points by the state High courts and The Government of
India. They can be summarized as follows:-
Criticism by the High Court: High Court has in many cases,
expressed disagreement with the suggestion that the Hindu Marriage
Act, 1955 should be amended with a view to making irretrievable
breakdown of marriage as a good ground for grant of a decree of
divorce.
The judges of the High Courts have expressed themselves against
the introduction of irretrievable breakdown as a ground of
divorce. One of the points made in the reply of the High Court is
that it is extremely difficult to say that the husband and wife
would never live together merely because there has been a rift
between them and for the time being it appears that there may not
be any prospect of their living together.
The mere fact that there has been a rift between the parties or
that they are for the time living apart does not mean that the
marriage has come to an end.
t is possible that what may appear to one person to be
irretrievable may appear to another as not yet beyond repair. But
such a state of things cannot be allowed to continue indefinitely,
and there must arrive a point of time when one of the parties
should be permitted to seek the judgment of the court as to
whether there is or there is not a possibility of the marriage
being retrieved.
Criticism by
the Govt.: The Government of India, Ministry of Education,
Department of Social Welfare, has expressed the review that
making
irretrievable breakdown of marriage
a ground for grant of a decree of divorce is redundant in the
light of the fact that sufficient grounds covering ‘irretrievable
breakdown of marriage’ exist in the Hindu Marriage Act and the
Marriage Laws Amendment Act, 1976, for the purpose of seeking
divorced.
Thus we see that though a lot of authorities have deliberated upon
the aspect of irretrievable breakdown of marriage as a ground for
divorce there has also been a vast majority of authorities that
have seen the drawbacks behind this concept of breakdown theory
and are not in favor of its legislative birth and implementation.
Conclusion
Thus to conclude, it can be said that marriage is an institution
in the maintenance of which the public at large is deeply
interested. It is the foundation of the family and in turn of the
society without which no civilisation can exist. This foundation
presupposes the existence of a platform build on the basis of
sound understanding between the spouses. If this understanding is
missing between the spouses and the marriage is a continuous
malady, then it is desirable that the marriage should be dissolve
with the intervention of the court. There is no useful purpose
surved by continuing such a marriage. Thus, on the basis of
"irretrievable breakdown theory" such marriage should be dissolved
for the common betterment of both the spouses.
This is the
reason why the attitude of legislature changed from the
"guilt theory"
to the
"divorce by
mutual consent"
(the consent theory). There may be a case where relation of the
parties has broken down irretrievably and there is no chance of
reconciliation and they are also not ready for divorce by mutual
consent. In that eventuality continuing such relation is futile
and as per Irretrievable Breakdown of Marriage theory such
marriage should be dissolved. It is high time that we appreciate
the need of Irretrievable Breakdown of Marriage theory so that
spouses can have a new and better life instead of wasting their
"young days"
in courts.
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author can be reached at: himani.12@legalserviceindia.com/
