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Irretrievable Breakdown Of Marriage Vis-A-Vis Hindu Law In India

1. The marriage is an integral part of well balanced society and is considered as the most important sacrament for human being in a peaceful, gracious, dignified and authoritative manner according to different rites and customs being followed by the people of different sects, religions, caste and creed etc.

2. The marriage is a holy sacrament for followers of Hinduism (including Buddhist, Jains, Sikhs, Virashaiva, a Lingayat, Brahmo Samaj, Prarthana or Arya Samaj or in any other form governed by Hindu Law), whereas ‘marriage' is treated as contract in Muslim Law , which is solemnized on the payment of Mehr from the husband to the wife. In the Muslim law, polygamy is not unconditionally conferred and is based on the precedent condition about the capacity of the husband to do justice between his co-wives. The Christians regard the marriage as an exquisitely sanctified union between a man and a woman.

3. The concept of marriage in Hindu Mythology was a union for eternal and not to be subject of dissolution by any of the party till the time it was regulated by the religious institution only without interference from State. However, in the realm of development of society in independent India, some social reformers put in their efforts to reform the Hindu society in the shade of legal enactments. With rapid merger of various civilization and cultures and prevailing circumstances some of the Hindu marriages were also considered to be at the verge of dissolution by way of divorce on grounds of cruelty, bigamy, desertion, physical and mental harassment etc. and some time due to irretrievable breakdown of marriage.

Irretrievable breakdown of marriage takes place when either any or both spouses do not wish to co-habit with each other and are on the verge of destruction of their married relationship without any hope of resumption of spousal duties. This situation may arise when there remains no rational between husband and wife to continue their relationship of marriage and there is no scope for any reform or adaptation for the relationship.

It is pertinent to mention that earlier the marriages in Hindu religion were being governed only by religious customs and rites and there were no legal enactments available to regulate the marriages of Hindus. The marriage is considered to be sacramental institution based on certain important facts such as respect of each other, acceptance, patience, sacrifice, affection, trust, transparency, clear understanding and taking care of each other needs etc. However, during British era some reformers had tried to create a source of legal enactment to amend, modify and govern the Hindu marriages.

Legal Percept
4. In 1856, Hindu Widows Remarriage Act was passed to allow the marriage of Hindu widow, and in 1923 through an amendment in Special Marriage Act, 1872, inter-religious civil marriages between Hindus, Buddhists, Sikhs and Jains were legalized.

5. In 1937, Arya Marriage Validation Act recognized the legality of inter-caste marriage and marriages with converts to Hinduism among the followers of Arya Samaj. In 1946, Hindu Marriage Disabilities Removal Act was passed to legalize the inter-marriage between the sub-divisions of same caste and those within one's gotra and pravara. In 1949, Hindu Marriage Validity Act legalized inter-religious marriages.

6. In 1941, the colonial government had appointed a four-member Hindu Law Committee, known as the Rau Committee after its chairman B. N. Rau. The committee was to resolve doubts about the Deshmukh Act's construction, ensure that its introduction of new female heirs was not made at the expense of the decedent's own daughter and consider bills introduced to abolish women's limited estate and to make polygamy a ground for separate residence and maintenance. Later in 1941, the Committee reported regarding fundamental reforms which recognized gender equality for social progress and modernization.

The Rau Committee was revived in 1944, which prepared a Draft Code dealing with Succession, Maintenance, Marriage and Divorce, Minority and Guardianship and Adoption. It was that Code that was widely circulated and discussed and given the name Hindu Code Bill.

The Ministry of Law revised the first draft in 1948 and made some small alterations to it, making it more suitable for discussion in the Constituent Assembly, where it was finally introduced. It was referred to a select committee under the chairmanship of the then Law Minister B. R. Ambedkar, and the committee made a number of important changes in the Bill. After several changes, amendments the above Hindu Marriage Bill was passed by the Parliament and received the assent of the president on 18th May 1955 as The Hindu Marriage Act, 1955 (25 of 1955) to amend and codify the law relating to marriage among Hindus and this Act is the main source of law governing the marriage and dissolution of marriage of Hindus in India.

The Hindu Marriage Act, 1955 stipulates the conditions and eligibilities of a valid marriage of a Hindu and Section 13 of said Act provides the conditions of Divorce to dissolve the marriage which provides as:

Section 13 of The Hindu Marriage Act, 1955: Divorce:

(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party:
  1. has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

    (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

    (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
     
  2.  has ceased to be a Hindu by conversion to another religion; or
     
  3. has been incurably of unsound mind, or has been suffering continuously intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

    Explanation: In this clause-
    (a) the expression “mental disorder means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
    (b) the expression “psychopathic disorder means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or
     
  4. has been suffering from a virulent and incurable form of leprosy; or
     
  5. has been suffering from venereal disease in a communicable form; or
     
  6. has renounced the world by entering any religious order; or
     
  7. has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;
     
Explanation: In this sub-section, the expression “desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.

(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground:
  1. that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
     
  2. 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 a decree for restitution of conjugal rights in a proceeding to which they were parties.

(2)A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground:

  1. in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or
     
  2. that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
     
  3. that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or
     
  4. that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation- This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976.

13B: Divorce by mutual consent

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Note: The Hon'ble Supreme Court of India has directed in the case of K. Thiruvengadam Vs. Nil, AIR 2008, Mad 76, that , “as provided in sub section 2 of Section 13 B the period of six months cannot be taken as mandatory, because if it is mandatory the very purpose of liberalized concept of divorce by mutual consent will be frustrated especially when the parties have live separately and there was no chance of reunion.

Similarly, in a recent case of Amardeep Singh Vs. Harveen Kaur (in C.A. NO. 11158 OF 2017) it has been held by the Hon'ble Supreme Court that the period of 6 months, as mentioned in Section 13B(2) is not mandatory but directory, it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.

7. From the aforesaid provisions it can be summarized that there are following main grounds of divorce in Hindu Marriage Act, available to spouses:

  1. Faults/Offences committed by any of the spouses, such as adultery & cruelty of physical, economical and mental nature.
     
  2. Circumstances subsequent to marriage (including conversion, insanity, diseases, renunciation of the world by the other spouse, desertion, bigamy, certain sexual offences and failure to pay maintenance etc.)
     
  3. Consent of both the spouse.

8. Thus, most important ground of divorce, i.e. ‘irretrievable breakdown of marriage' which is also most controversial, has not been specified in Hindu Marriage Act. It is clear that there is no scope for divorce for either party in case of irretrievable breakdown of marriage as per the provisions of Hindu Marriage Act.

Though ground similar to breakdown of marriage could be traced in the provision for dissolution of marriage by decree of divorce at the instance of either party under section 13(1A) of Hindu Marriage Act, however, it is an essential condition of the application of that sub-section that the proceedings for divorce must have been preceded by either a decree for judicial separation or a decree for restitution of conjugal rights.

A decree for judicial separation, in its turn, could not have been passed unless circumstances which prove what may be called marital offence or marital disability were established. In this sense, a petition for divorce under section 13(1A) of Hindu Marriage Act indirectly brings in a consideration of fault or disability. Similarly, a decree for the restitution of conjugal rights could not have been passed unless it has been proved that the respondent had without reasonable excuse withdrawn from the society of the other. Thus, a petition under section 13(1A) of Hindu Marriage Act, in so far as it is based on a prior decree of restitution, also involves consideration of fault.

9. It may also be noted that Section 13B of Hindu Marriage Act provides for divorce by mutual consent by bringing in the concept of divorce de hors any fault of a party. All that is necessary in such cases is that there should be a petition for dissolution of marriage to be presented together by both the parties to a marriage, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

After the presentation of the petition, on a motion of both the parties made not earlier than six months and not later than eighteen months after the date of the presentation of the petition, if the petition is not withdrawn in the meantime, the court shall, on being satisfied after hearing the parties and after making such inquiries as it thinks, fit about the correctness of the averments in the petition, pass a decree of divorce.

10. Owing to increased education, modernism, technological & social-economical globalization, industrialization, desire to live upon one's own will & wish and ample opportunities of employment across the world, the parties of marriage whether husband or wife may feel uncomfortable to cope up with their married relationship and some time they do not agree to resolve the issue through mediation or mutual settlement and thus the condition of irretrievable breakdown of marriage emerges, since the dissolution of marriage which was to be considered as sin to the societal norms, now is treated as a symbol of independence in liberal society and the State also encouraged the same through various enactments in the light of advanced socio-economic globalization and concept of gender equality. However, there is no specific legal provision which can directly and specifically grant divorce on the ground of irretrievable breakdown of the marriage. Therefore, the concept of irretrievable breakdown of marriage has been considered by various courts time to time and also was looked into by the Law Commission.

11. The Delhi High Court in a Full Bench decision in Ram Kali v. Gopal Das, (1971) 1 ILR Delhi 10 (FB), took, note of the modern trend not to insist on the maintenance of a union which has utterly broken down, and observed:
It would not be practical and realistic approach, indeed it would be 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 prospects of their ever living together as husband and wife.

12. The Law Commission while considering the reforms in Hindu Marriage Act felt that the Hindu Marriage Act of 1955 has proved to be inadequate to deal with the question where the marriage has proved to be a complete failure, and that a social reform is imperative in the field.

It was considered that once it is known that there are no prospects of the success of the marriage, to drag the legal tie acts as a cruelty to the spouse and gives rise to crime and even abuse of religion to obtain annulment of marriage. It is pertinent to mention that that other religions including Muslim, Christian and Parsee allow divorce more easily than the Hindu law and it is only the Hindus who are put under severe restrictions and have to resort to conversion in several cases.

13. Thus, the Law Commission in its report No. 71 submitted in April 1978, suggested that the following ground of divorce should be added to section 13(1) of the Hindu Marriage Act, 1955:
That the marriage has irretrievably broken down and that the parties had been living apart for a period, not less than five (or ten) years, immediately preceding the presentation of the petition.

14. The Law Commission observed that the social discrimination in personal life ought to be removed, particularly in view of the fact that many Hindu marriages are brought about at an early age without the consent of the parties and, in consequence, break down at a later stage. Finally, it is stated that the Hindu law of divorce should be liberalized and brought in conformity with the modern trends in Europe and elsewhere, as well as with the law applicable to the other communities in the country. The suggestion sums up the essence of the proposal in these terms:—

The essence of the proposal is that the Hindu marriage should be allowed to be dissolved if the husband and wife have lived apart for a period of say 5/10 years and the marriage is irretrievably broken due to incompatibility, clash of personality or similar other reasons, as is permissible under many systems of law of advanced countries.

15. The above recommendation of the Law Commission has been objected by the various law scholars on the ground that 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; and secondly, it is contrary 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 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 divorce. Thus, the recommendations of Law Commission could not be formed into legislation.

16. In the present scenario, the divorce on the ground of irretrievable breakdown of marriage can only be granted by the Supreme Court under Article 142 of the Constitution of India, which provides as:-
“(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

17. The Supreme Court has deliberated the aforesaid article 142 in various cases of irretrievable breakdown of marriage:

  1. In the case of Chandrakala Menon vs. Vipin Menon (reported in (1993) 2 SCC 6) , the parties had been living separately for so many years and the Hon'ble Supreme Court concluded that there was no scope of settlement between them because, according to the observation of Supreme Court, the marriage has irretrievably broken down and there is no chance of their coming together, thus, the Supreme Court granted decree of divorce.
     
  2. In Sandhya Rani vs. Kalyanram Narayanan reported in (1994) [Supp. 2 SCC 588], the Hon'ble Supreme Court observed 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 Hon'ble Supreme Court granted the decree of divorce.
     
  3. In V. Bhagat v. D. Bhagat, 1994 AIR 710, 1994 SCC (1) 337, the Supreme Court while allowing the marriage to dissolve on ground of mental cruelty and in view of the irretrievable breakdown of marriage and the peculiar circumstances of the case, held that the allegations of adultery against the wife were not proved thereby vindicating her honour and character. The Supreme Court while exploring the other alternative observed that the divorce petition has been pending for more than 8 years and a good part of the lives of both the parties has been consumed in this litigation and yet, the end is not in sight and that the allegations made against each other in the petition and the counter by the parties will go to show that living together is out of question and rapprochement is not in the realm of possibility. The Hon'ble Supreme Court also observed in the concluding part of the judgment that:

    Before parting with this case, we think it necessary to append a clarification. Merely because there are allegations and counter allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extra- ordinary features to warrant grant of divorce on the basis of pleading (and other admitted material) without a full trial. Irretrievable breakdown of the marriage is not a ground by itself.
     
  4. In Prakash Chand Sharma vs. Vimlesh [1995 Supp (4) SCC 642], the wife expressed her will to go and live with the husband notwithstanding the presence of the other woman but the husband was not in a position to agree presumably because he has changed his position by remarriage. Be that as it may, a reconciliation was not possible.
     
  5. In the case of Kanchan Devi vs. Promod Kumar Mittal reported in (1996) 8 SCC 90, the parties were living separately for more than 10 years and the Court came to the conclusion that the marriage between the parties had to be irretrievably broken down and there was no possibility of reconciliation and therefore the Court directed that the marriage between the parties stands dissolved by a decree of divorce.
     
  6. In Swati Verma vs. Rajan Verma reported in (2004) 1 SCC 123, a large number of criminal cases had been filed by the petitioner against the respondent. The Supreme Court observed that the marriage between the parties had broken down irretrievably with a view to restore good relationship and to put a quietus to all litigations between the parties and not to leave any room for future litigation, so that they may live peacefully hereafter, and on the request of the parties, in exercise of the power vested under Article 142 of the Constitution of India, the Hon'ble Supreme Court allowed the application for divorce by mutual consent filed before it under Section 13-B of the Hindu Marriage Act and declared the marriage dissolved and granted decree of divorce by mutual consent.
     
  7. In the case of Navin Kohli vs Neelu Kohli, {in Appeal (civil) No. 812 of 2004} the Supreme Court, made recommendation to the Union of India to seriously consider for bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce.
     
  8. The Hon'ble Supreme Court of India in Sangamitra Ghose Vs. Kajal Kumar Ghosh, reported in 2007 2 SCC page 200, held as follows:
    We are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties beyond repair and that the marriage has been wrecked beyond the hope of salvage and therefore public interest and interest of all concerned lies in the of the recognition of the fact and to declare defunct de jure what is already defunct de facto.
     
  9. The Hon'ble Apex Court observed in Pawan Kumar Dewangan Versus Rama Devangan, AIR 2012 Chh 47, that irretrievable breakdown of marriage has not been provided by legislature as one of grounds under Section 13 of Hindu Marriage Act for dissolution of marriage.
     
  10. The Hon'ble High Court of Patna observed in case of Seema Kumari versus Sunil Kumar Jha, AIR 2014 Pat 44, that on ground of irretrievable breakdown of marriage can only be granted by the Supreme Court under Article 142 of the Constitution and not by the High Court.

Conclusion
18. In the modern era of gender equality, democratic governance, socio-economic globalization, industrial development, technological sophistication and internet advancement, it is not possible to deprive any of the spouse with his or her right of self-esteem and independence.

Once there is a lack of essential elements of marriage between spouses, such as mutual trust, respect of each other, acceptance, patience, sacrifice, affection, transparency, clear understanding and taking care of each other needs etc, the institution of marriage begins collapsing and if despite counseling, guidance and mediation there is no scope of any reform or any hope of resumption of spousal duties and either any or both spouses do not wish to co-habit with each other, thus, there is irretrievable breakdown of their marriage, then it would not judicious and practical to continue that relationship and in the interest of complete justice to aggrieved party such marriage is liable to be dissolved upon application of any of the spouses.

19. In view of aforesaid discussion, it is felt necessary that the Government of India, Ministry of Education, Department of Social Welfare/Department of Women & Child Welfare may consider to prepare a draft in consultation with Ministry of Law & Justice and other concerned agencies/organizations to amend the Hindu Marriage Act, 1955, incorporating the following, in addition to make other pre-requisite conditions, to save the precious time of the Apex Court and resources of litigants and to advance justice in a speedy, effective and economical manner:-

a marriage under this Act may be dissolved in case of irretrievable breakdown of marriage upon petition of any of the spouses who are separately for more than one/two years and all counseling sessions failed to resolved the issues between the spouses

20. It may be summarized that irretrievable breakdown of marriage is a social obscurity and not a ground of divorce in Hindu Marriage Act, yet if there is no scope of any reform or any hope of resumption of spousal duties and either any or both spouses do not wish to co-habit with each other, then it is not judicious and practical to continue that relationship and in such condition the divorce on the ground of irretrievable breakdown of marriage can only be granted by the Supreme Court under Article 142 of the Constitution of India.

Since, the subjects of the Hindu Marriage Act follow Hindu traditions & ethos and they hardly follow the concept of the marriage as contract only, therefore, it becomes essential for the State to make such efforts with involvement of less legal technicalities, to promote expert counselling sessions to the needy parties to remove them in case of un-necessary condition of irretrievable breakdown of marriage.

The Government may encourage Social Organizations to promote marriage institutions to create among people, a sense of harmony, value of married relationship, transparency in relationship, mutual trust, taking care of each other's feelings, avoid egoism with an intent to avoid irretrievable breakdown of marriage in a larger interest of the society.

Written By: Kapil Kishor Kaushik, Advocate

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