Author Name:   Kanungo Swaraj

This article will help my friend on recent judgement of Supreme Court of India in Irretrievable Breakdown of Marriage

Irretrievable Breakdown of Marriage

Written by: Himani Sharma and Chetan Bagdi - IIIrd Year National Law Institute University Bhopal (M.P)

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. 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.

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.

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 honour each other.

Irretrievable Breakdown of Marriage
This means the couple can no longer live together as man and wife. Parties to the marriage must prove that the marriage has broke down so badly that there is no reasonable chance of getting back together.

Till date, 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 morale’s and in view of the changing nature of marriage in the society, the Apex Court of the Country 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. However Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955.

In A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534, 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.

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.

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. Divorce should be seen as a solution and a way out of a difficult situation.

Merits And Demerits of The Concept of Irretrievable Breakdown of Marriage
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.

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.

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.

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, 2006 4SCC 558, 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.

It 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 served 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.

Suggestion:
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.

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.

The  author can be reached at: himani.12@legalserviceindia.com

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