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Envisioning The Concept of Irretrievable Breakdown of Marriage

Written by: Pratim Sarkar Lecturer-in-Law, Haldia Law College - West Bengal
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Marriages, as they define, 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 have been 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, led 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. Positions have however, changed 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.

It was first in the Hindu Marriage Act, a form of irretrievable breakdown of marriage theory was introduced through the amendment of 1976, by which clauses (i) and (ii) have been inserted.

Bombay High Court in one occasion remarked: The enactment of Sec. 13(1A) is a legislative recognition of the principle that in the interest of society if there has been a breakdown of the marriage there is no purpose in keeping the parties tied down to each other.

Section 13(1A) provides:

Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for dissolution of marriage by a decree of divorce on the ground-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upward after the decree for restitution of conjugal rights in a proceeding to which they were parties.
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upward after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

A further initiative towards the recognition of the principle of breakdown was the introduction of mutual consent as a ground of divorce in 1976 by incorporating Sec. 13B in the Hindu Marriage act.

The Law Commission in its Seventy-First Report submitted in 1978, strongly recommended to introduce breakdown of marriage as a ground for divorce in addition to fault grounds in the divorce law. When parties are living separate for a consecutive period of three years or more with no prospect of reconciliation, it definitely indicates, the breakdown of that marriage. Reports also recommended certain safeguards to check unbridled divorces. Not only the Law Commission, jurists, academicians and the courts have also been making plea for introducing this ground in the matrimonial laws.

In the year of 1981, a Bill was introduced to give effect irretrievable breakdown as a ground for divorce, but it did not accept as some scholars apprehended that unscrupulous husband would desert their wives and take advantage of this provision.

Several cases have been decided by the courts, where the marriage was in fact, utterly broken but the courts applying the technicalities of the law , subsisted the marriage tie and could give any meaningful relief to the parties.

One view can be cited against including the item irretrievable breakdown of marriage as one of the grounds of dissolution of marriage is that there is a risk in giving recognition to a situation where the marriage would be deemed to have been broken down. Such a unilateral act, unless made an issue by the wronged spouse, cannot be deemed to be a valid ground to take away the legal right, which has accrued by solemnization of marriage at the instance of the spouse who is found guilty of any wrong.

In Asha v. Krishna Lal (1990 Del.1), Delhi High Court held that irretrievable breakdown of marriage is not contemplated to be one of the grounds for dissolution of marriage. Thus by itself it can not be taken to be a ground for decree of dissolution of marriage.

Similar view has been taken in Smita Dilip Rane v. Dilip Dattaram Rane (AIR1990 Bom.84), wherein it has been laid down that simply because the marriage has broken down and the parties can not live together, a decree for divorce can not be granted if the statute does not specifically provide for that. In Suresh Prasad Sharma v. Rambai Sharma [1 (1999) DMC311(MP)], also, divorce was refused on the plea of absence of the irretrievable breakdown ground.

Later on, the judiciary has been adopting a more liberal and practical approach and several judgments of different courts prove the fact that they no longer stick to the traditional notion of inviolability of the marriage tie.

One of the cases relating to irretrievable breakdown of marriage, is V. Bhagat v. D v. Bhagat (AIR1994 SC710), the apex court observed, irretrievable breakdown of the marriage is not a ground by itself. But while ascertaining the evidence on record to determine whether the ground alleged are made out and in determining the relief to be granted, the said circumstances can certainly be borne in mind. The usual step as the one taken by us herein can be resorted only to clear up an insoluble mess, when the court finds it in the interest of both the parties.

In Sanghamitra Singh v. Kailash Singh (AIR2001 Ori.151), the 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 now clear that the marriage has irretrievable 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.
In Krishna Banerjee v. B. Bandopadhay(AIR2001 Cal.154), where the husband was harassed by the wife by physical and mental cruelty, coupled with the fact that thyey living separately for 16 years, the court found that it was a proper case for divorce, as the marriage between the parties had broken down and they could no longer live together as husband and wife.

However the Calcutta High Court expressed different view in this regard, in Swapan Kumar Ganguly v. Smritikana Ganguly (AIR2002 Cal.6), the Court held that, the status of being married woman and not a divorce or spinster by itself is of great protection to a woman in our society and this fact can’t be denied even where parties admittedly could not live together.

It is significant to note here that in circumstances where the courts are inclined to adopt a liberal or practical approach, the marriage between the parties would not be dissolved only on the propositions made by one of the parties that the marriage between them having broken down, no useful purpose would be served by keeping it alive. The court may take a holistic approach of the facts and circumstances of each case, also where a party is in a advantageous position for his or her own wrong and then try to plead breakdown of marriage, the court would not invoke its jurisdiction to dissolve the marriage on this ground.

In the case of Chandralekha Trivedi v. S.P. Trivedi [(1993) 4 SCC 232], the Supreme Court has not used the term irretrievable breakdown of marriage but has defined that the marriage is ‘dead’. Husband initiated a divorce proceeding on the ground of cruelty and also wife’s intimacy with young boys, after the nine years of marriage. Wife also made similar allegations against the husband. Their only daughter was already married when High Court granted a divorce decree. On appeal, Supreme Court felt that it would be futile to decide the allegations and counter-allegations as the marriage became dead.

Recently the Supreme Court [Naveen Kohli v. Neelu Kohli 2006(3) SCALE 252] has 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 fact is 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 harassing 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 notes that there is 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 profound reasoning is 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. Here the ground of irretrievable breakdown is really needed. But it should not be oblivious that the ground, when introduced, needs to provide safeguards to ensure that no party is exploited.

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