Author Name:   shishir shrivastava

The Law Commission of India as well as judiciary demands the inclusion of irretrievable break down as marriage as a special ground for divorce under Hindu Marriage Act,1955, as it is felt that due to the technicalities involved in existing theories of divorce it sometimes become complex for parties in seeking separation...

Irretrievable Breakdown of Marriage: A Special Ground For Divorce

Irrespective of the three remedies available to parties that is: restitution of conjugal rights, judicial separation and divorce, the judiciary in India is demanding irretrievable breakdown of marriage as a special ground for divorce, as sometimes court face some difficulties in granting the decree of divorce due to some of the technical loopholes in the existing theories of divorce.

Therefore in the paper “Irretrievable breakdown of marriage as a special ground of divorce”, an attempt has been made to check out the following:

Whether the theory should be incorporated as a separate ground for divorce or should be incorporated as a remedy for the lacunas in the existing theories of divorce in the Hindus Marriage Act, 1955?

This is because the judiciary particularly the law commission, consider the implementation of such a theory as a boon to parties who for one or the other reasons, are unable to seek the decree of divorce. Therefore in the opinion of the Supreme Court and Law Commission of India, it is very essential to make it a special and separate ground of divorce.

Whereas I differ in opinion from both the Supreme Court and Law Commission that introduction of irretrievable breakdown of marriage, as a special ground will do any public good. If we exactly go by the amendment proposed by the law commission, introduction of such a ground will directly hit the sanctity of the marriage. Therefore not as a special ground but it should be introduced as remedy for the loopholes prevailing in the existing theory of divorce, under Hindu Marriage Act 1955.

In this paper the question has been dealt by making detailed study of existing remedies that is: restitution of conjugal rights, judicial separation and divorce. Than an analysis of the law commission’s recommendation is being made and than finally the recommendations have been made of how the theory is to be implemented as remedial ground and not as a special ground of divorce.

Introduction To Irretrievable Break Down Theory
Under Hindu Marriage Act, 1955 primarily there are three theories under which divorce is granted:
(i) Guilt theory or Fault theory,
(ii) Consent theory,
(iii) Supervening circumstances theory.

The Irretrievable breakdown theory of divorce is the fourth and the most controversial theory in legal jurisprudence based on the principle that marriage is a union of two persons based on love affection and respect for each other. If any of these is hampered due to any of the reason (say cruelty, desertion, adultery, insanity etc) and if the matrimonial relation between the spouses reach to such an extent from where it becomes completely irreparable that is a point where neither of the spouse can live peacefully with each other and acquire the benefits of a matrimonial relations, than it is better to dissolve the marriage as now there is no point of stretching such a dead relationship, which exist only in name and not in reality.

The breakdown of relationship is presumed de facto. The fact that parties to marriage are living separately for reasonably longer period of time (say two or three years), with any reasonable cause (like cruelty, adultery, desertion) or even without any reasonable cause (which shows the unwillingness of the parties or even of one of the party to live together) and all there attempts to reunite failed, it will be presumed by law that relationship is dead now.

Merits of the theory
The only merit of the theory as has been propounded by the jurists is that a marriage, which in practice is considered to be sacramental institution, should be based on ground on which a sound marriage is based that is tolerance, adjustment and respecting each other. If any of the party to marriage is not ready to live with the other party the relationship will not be a happy relationship. Stretching such a relationship will do no good, rather will develop hatred and frustration among the parties for each other. Therefore to protect the sanctity of marriage, to reduce the number of unhappy marriages and to prevent from getting wasted the precious years of life of the spouses, it is necessary to dissolve such a marriage.

However here the point to be noted is that the parties to marriage do not get separated out of their own free volition but on the basis of court coming to conclusion that marriage is beyond repair or cannot be saved by any means.

Demerits of the theory
The Law Commission Of India in chapter 4 of the 71st report has dealt in detail the demerits of the irretrievable breakdown theory. The two main oppositions discussed in the report are as follows:

(i) It will make divorce easy. It will allow the spouses or even to any one of the spouse to dissolve the marriage out of their own pleasure.

(ii) It will allow the guilty spouse to take the advantage of his own fault by getting separated and dissolving the marriage.

Status under Indian Law
irretrievable breakdown of marriage is not a special ground for divorce under Hindu Marriage Act, 1955 unlike the other three theories of divorce. However an attempt has been made to introduce the concept in section (13) (1A) which states that:

Either party to 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-

(i) That there has been no resumption of cohabitation as between the parties to marriage for a period of [one year] or upward after the passing of decree for judicial separation in a proceeding to which they were parties; or

(ii) 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 the decree for restitution of conjugal rights in a proceeding to which they were parties.

In either case if the parties are not able to resume cohabitation for one year, any of the party to marriage can obtain a decree for divorce. Thus the common feature is the condition of living separately for a reasonably longer period of time.

However the judiciary in India has started raising the demand of such a special ground under the present law in force. The Supreme Court Of India in a recent case of Naveen Kohli v Neelu Kohli even asked the parliament to seriously consider the matter and bring an amendment in the present law. The apex court said that:

“Before we part with the facts, on the consideration of the totality of the facts, this court would like to recommend to the Union Of India to seriously consider for the bringing of the amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for grant of divorce. A copy of this judgment be sent to the Secretary, Ministry of Law & Justice, Department of Legal Affairs, Government of India for taking appropriate steps”

In fact the Law Commission Of India, on reference made by the Central Government, in its 71st report has made a detailed analysis of the theory and has described how exactly it could be incorporated in the present law. In 217th report the law commission has further urged the government to make amendments to introduce the theory.

Present Law Of Separation Under Hindu Marriage Act,1955
In case of any dispute between the parties, the remedy provided under the Hindu Marriage Act, 1955 is:

(i) Restitution of conjugal rights (Section 9)
(ii) Judicial Separation (Section 10) &
(iii) Divorce (Section 13 and 13B)

(i) Section 9: Restitution of Conjugal rights
When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

[Explanation- Where the question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]

Thus the essential requirement are: withdrawal by one party from the society of the other, without any reasonable cause or excuse and there should be no legal ground as to why the decree should not be granted.

However the critiques of this remedy has considered it to be most inhuman and obnoxious. It is considered to be worst tyranny and worst slavery. The critiques states that husband or wife cannot be enforced to live with each other when the body and soul is not willing for it and therefore it should be abolished.

However it could be said that the critiques did not look at the broader purpose which it intend to serve and present only the narrow view. They sound like a biased person, whose mind has just come out of the old patriarchal thinking and want to safeguard the interest of women. However it is submitted that Section 13 (1A) (ii) gives further remedy of obtaining divorce, if the parties, even after living apart for one year, feel that still they cannot live with each other or there attempt in this one year to reunite failed, any one of the spouse can present a petition for divorce.

The time of one year given is a reasonable and sufficient for parties to make an attempt to get reunited. Therefore contrary to the view of critiques it serves two purposes: firstly give the parties one more chance to resume cohabitation and secondly even if their attempt fails than give them the remedy of divorce. Therefore it rather serves a more public good with no harm, with no force on either party to live with each other, as opposed.

(ii) Section 10: Judicial Separation and Section 13: Divorce
(1) Either party to a marriage, whether solemnized before or after the commencement of this act, may present a petition praying for a decree of judicial separation on any of the ground specified in sub section (1) of section 13, and in case of a wife also on any of the grounds specified in sub- section (2) thereof, as a grounds on which petition for divorce might have been presented.

(2) Where a decree of judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied on the truth of the statements made in such petition, rescind the decree if it consider it just and reasonable to do so.

The grounds on which the judicial separation will be granted are the grounds of divorce based on fault theory. Section 13 (1) specifies the fault ground on which both husband and wife can seek divorce whereas sub- section (2) specify the special grounds for wife to seek divorce. The grounds specified in sub- section (1) are:

(i) Adultery ,

(ii) Cruelty,

(iii) Petition is filed,

(iv) Either of the party has ceased to be a Hindu,

(v) Either of the party is of unsound mind, or is suffering from continuous and intermittent mental disorder of such a kind and to such an extent that petitioner cannot reasonably be expected to live with the respondent,

(vi) Suffering from virulent and incurable form of leprosy,

(vii) Suffering from venereal disease of incurable form,

(viii) Either of the party has renounced the world,

(ix) Either of the party is legally dead that is he/ she has not been heard or seen for last seven years.

The special grounds for divorce of wife under sub- section (2) are:

(i) In case of marriage solemnized before the commencement of this act, if the husband marries again, before the commencement of this act, and: in case whether the marriage was solemnized before or after the commencement of this act, if the other wife of the husband was living at the time of solemnization of marriage as well as at the time of the presentation of the petition.

(ii) The husband, since the solemnization of marriage has been guilty of rape, sodomy and bestiality.

(iii) In case if a decree has been passed for a suit under section 18 of Hindu Adoption and Maintenance Act, 1956 or in proceeding under section 125 of code of criminal procedure, 1973 or under corresponding section 488 of code of criminal procedure, 1898, has been passed against the husband awarding maintenance to the wife, and since the passing of such decree, notwithstanding whether the wife was living separately or not, the couples have not been able to resume cohabitation, for a period of one year or upward;

(iv) If the marriage of the wife was solemnized before she attained the age of fifteen years, notwithstanding of the fact whether the marriage was consummated or not, if on attaining the age of fifteen years she repudiated the marriage but before the attainment of age of eighteen years. This clause is applicable for marriages solemnized before as well after the commencement of the act.

Divorce and judicial separation are two different concepts, based exactly on same grounds. Whereas in divorce the matrimonial relations completely come to an end, parties come back to the status of single, and both the parties can now remarry. But such is not the case in judicial separation. Though granted on same grounds, it only put a break on the matrimonial relations of the party and it does give any effect of divorce.

However the purpose for which the decree for judicial separation is granted is that during the period of separation, parties make an attempt to get reunited. This could be attributed from the fact that sub- section (2) of section 10, states that this decree can also be rescinded by the court, on petition presented by either of the party. Which means if parties want to make an attempt to resolve their dispute, they can make an application for rescinding the decree. But if within one year they are not able to cohabitate again, either of the party can file a petition for divorce under Section 13 (1A) (i).

Section 13- B: Divorce by mutual consent
(1) Subject to the provision 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 presentation of 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 mean time , the court shall, on being satisfied, after the hearing the parties and after making such enquiry 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 decree.

Based on the mutual consent theory the essential requirement as has been laid down are; firstly parties must be living separately for one year, secondly that they have not been able to live together and thirdly and most importantly that they mutually agree to get separated.

Except for decree of divorce under fault ground, the decree for restitution of conjugal rights, judicial separation and decree of divorce under consent theory, requires living separately for one year. This period, as has been discussed earlier also, is a reasonable period in which parties can realize their mistakes and make a second attempt to live together. But if they are not able to resume their marriage, it is better to give the decree of divorce as marriage in such cases completely breaks.

Lacunas in the existing laws
Still there are certain technicalities which obstruct the court or the parties in giving or obtaining decree of divorce. Like for example:

(1) Under consent theory the consent of both the parties is necessary for the decree of divorce. However it may so happen that one of the party just to harass the other party out of anger, jealousy, ill will etc may withheld the consent, which will be a major hindrance in obtaining divorce by parties or in giving divorce by courts.

(2) Under fault theory the requisite condition is that one of the party must be at fault of any of the matrimonial offences, while the other party must be completely innocent. If it is found that other party is also at fault of any of the matrimonial misconduct, the divorce will not be granted.

(3) Again under fault theory there are certain technicalities, due to which the courts are not able to give decree of divorce, which cause such a great hard ship to the innocent party, leading to a great miscarriage of justice.

(4) Therefore there is a demand for irretrievable break down of marriage, as a separate ground for divorce, which notwithstanding these technicalities will empower the court to dissolve the marriage between the parties.

Law Commission Recommendations & Its Impact
Law Commission of India in chapter 6 ‘Requirement of Living Apart’ of 71st report has described the situations from which it can be presumed de facto by the courts that marriage has irretrievably broken down. The situations are as follows:

(1) Agreement of separation between two married couples.

(2) ‘Not cohabiting’ should be a sufficient proof for the irretrievable breakdown of marriage.

(3) Separate living of spouses for more than five years should be a sufficient proof.

(4) Continuous separate living of spouses in prime period of youth, and desire of not coming together in mind of one is sufficient proof.

(5) After a continuous separation arising out of rift and no petition for conjugal rights from either side is filed during the period of one year, “separation” should be a conducive ground for irretrievable breakdown of marriage. Or

(6) Continuous separation for more than one year, coupled with suspicion of misconduct from either side, mental or physical cruelty arising out of admission. Discovering of either of the spouse regarding adultery covering pre marital illicit relation rendering their living together impossible.

(7) If a case for judicial separation or divorce or restitution for conjugal rights is pending for three years, and no attempt to settle the dispute or to compromise are made by either party.

(8) In some cases it is even enough to take into account a simple submission of the spouse that he or she cannot live together.

Accordingly the commission has made recommendation of introducing section 13C “Divorce on the ground of irretrievable break down of marriage” which is as follows;

(1) A petition for dissolution of marriage may be presented to the court by either party to a marriage on the ground that marriage has broken down irretrievably.

(2) The court hearing such a petition shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to marriage have lived apart for continuous period of last three years immediately preceding the presentation of the petition.

(3) If the court is satisfied, on the evidence, as to the fact mentioned in sub- section (2), than unless it is satisfied on all the evidences that the marriage has not broken down irretrievably, it shall, subject to the provision of this act, grant a decree of divorce.

(4) In considering for the purpose of sub- section (2) whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months in all) during which parties resumed living with each other, but no period during which the parties lived with each other shall count as part of the period for which the parties to the marriage lived apart.

(5) For the purpose of sub- sections (2) & (4), the husband and wife shall be treated as living apart unless they are living with each other in the same household, and references in this section to the parties to a marriage living with each other shall be construed as references to their living with each other in the same household.

All the other being the same, from the already available remedies that is: restitution for conjugal rights, judicial separation & Divorce, apart from the facts that:

(i) The period of separation has been raised from one year to three years &

(ii) For counting the continuous period of separation for three years, the period during which they lived together (only in case when within this three years they made an attempt to resume their marriage), will not be taken into account. If this attempt failed and they again got separated, than the period after three months, from the date when they again got separated, will be taken into consideration.

Impact Of The Recommendations
Following is going to be the major impacts if the proposed amendment in the Hindu Marriage Act, 1955 in its present form is enacted:

Firstly the concept of marriage will lose its sanctity. Dissolving a marriage will be a cake walk for either party and divorce will be taken by the parties on minor and trivial issues. In short it will lead to the breakdown of the entire matrimonial institution in the country and will encourage and give license for the highly unethical practices like adultery.

Secondly since there is no requirement of any kind of formalities like: in case for restitution for conjugal rights, only aggrieved can approach to court for the decree, for judicial separation and divorce (on fault ground) only innocent party can approach the court and finally for divorce on mutual ground, on the mutual consent of the parties, these existing remedies will lose credibility and will be of no use as no body will care for such cumbersome procedures when they can directly break it.

Like the purpose of punishments in any criminal system is to create a fear in the minds of citizens and to prevent them from committing crime, similarly the purpose of divorce theories is to strengthen the institution of marriage by creating a fear in the minds of couples that once you are tied in a knot it will not be easy to come out of it. As such couples try to maintain a relationship between them to the extent possible, but if it becomes impossible to prevent the marriage by any means, than the marriage is considered to be broken down irretrievably.

The ground of irretrievable break down of marriage is as important as other grounds of divorce, but not in the manner as has been proposed. The purpose of this theory, like other theories is also to maintain the institution of marriage and not to make it a game to be played anytime with anyone.

Further Recommendations
There is a need to bring the ground of irretrievable breakdown of marriage under the present law but not as a separate special ground but only as remedy for the lacunas in the existing system of divorce. Therefore following are the recommendations on how the ground is to be included under the present law:

(1) Under consent ground, it becomes very difficult by the parties to obtain the decree of divorce or by the courts in giving the decree of divorce, if the consent is being withheld by any one of the party. The classic example of such a situation is the recent case of Naveen Kohli v Neelu Kohli

Therefore under such situations the ground of irretrievable breakdown of marriage is necessary, where court being satisfied on the basis of the facts of the case that the marriage has reached to a point from where it is almost impossible to prevent the parties from getting separated, the decree of divorce be granted irrespective of the fact that the consent has been withhold by the other party.

(2) Under fault theory the decree of divorce cannot be granted if the other party (party making the allegation over other party) is also found to be guilty of any of the matrimonial offence.

Therefore under such circumstances also when the marriage between the parties have completely broken down, which could be easily attributed from the deeds of both the parties, the divorce should be granted on ground of irretrievable breakdown of marriage.

(3) Under the same fault theory sometimes the courts are unable to pass the decree of divorce due to technicalities involved in the procedure like in case of Vinita Saxena v Pankaj Pandit

Therefore in such cases as well the court should be empowered to grant the decree of divorce under irretrievable breakdown theory of divorce.

Therefore not as a separate ground of divorce, like proposed section 13C, but it need to be included under the present law by making amendment in the respective sections (for grounds discussed above).

Conclusion
In India, as per Hindu culture, tradition, customs and practices, marriage are considered to be made in heaven. Therefore marriages in India are considered to be the highest form of social relationship. It gives the person who is to live with us for whole life, to share our good and bad times, give us support any time we need and helps in developing our family. We need to respect not only the person but the institution of marriage as well.

But the manner in which the judiciary is dealing with the subject of irretrievable break down of marriage, it is feared that it will completely break the system of marriages. Every theory has their own negative and positive traits. There applicability differs from situation to situation. Therefore it is very essential that the law makers of our country should deal with the subject in a very cautious manner after considering in detail its future implications.

Bibliography
Statutes referred
1. Hindu Marriage Act, 1955

Books referred
1. Dr. Diwan Paras, Modern Hindu Law.
2. Kumud Desai’s Indian Law of Marriage and Divorce, 7th Edition 2008
3. Mulla Hindu Law Vol II, 20th Edition Reprint 2010.
4. Poonam Pradhan Saxena Family Law Lectures: Family Law II, 2nd Edition 2007 Reprint 2010
5. U.P.D Kesari, Modern Hindu Law.

Reports referred
1. 71st Law Commission report on The Hindu Marriage Act, 1955- Irretrievable Breakdown of Marriage as a ground of Divorce.
2. 217th Law Commission report on Irretrievable Breakdown of Marriage- Another Ground of Divorce.

# The author is a second year student of law at MATS Law School, MATS University, Raipur (C.G) and can be reached at shishir@legalserviceindia.com

Under this theory there are three matrimonial offences that is: adultery, cruelty and desertion. The essential condition is that one of the spouse must be guilty of committing any one of the matrimonial offence. Under such circumstance the other spouse can dissolve the marriage by obtaining decree of divorce from the court. However the other essential pre requisite condition is that the other spouse must be completely innocent that he/she should not be guilty of committing any of the matrimonial offence. If the other spouse is also found guilty of any of the matrimonial offences than the decree of divorce will not be granted due to the principle that the parties should not be allowed to take the advantage of their own wrong cf: Dr Paras Diwan, The Modern Hindu Law, 68-69 (Allahabad Law Agency)

[3] Marriage today as become a contract in which parties to marriage out of their own free volition decide to get tied in the matrimonial relation. Therefore if they are allowed to get united on their own free will they should also be allowed to get separated on their own will. Thus under this theory the divorce is granted on the basis of mutual consent of the parties without showing any fault or guilt on part of the other spouse or any supervening circumstances cf: Dr Paras Diwan, The Modern Hindu Law, 71-72 (Allahabad Law Agency)

[4] Under this theory the divorce is granted on following grounds : insanity, leprosy, conversion of the other spouse, renunciation of the world by the other spouse or absence of the other spouse for a long period cf: 71st Law Commission Report, The Hindu Marriage Act, 1955- Irretrievable Breakdown of Marriage as a Ground of Divorce, 11-12, Law Commission Of India.

# Dr Paras Diwan, Modern Hindu Law, 73 (Allahabad Law Agency)

# 217 Law Commission Of India, Irretrievable Break Down of Marriage- Another Ground of Divorce, p9, Law Commission Of India.

# Refer supra note no: 1, 2 & 3

# AIR 2006 SC 1675, it was a case in which parties were living separately for ten years. There were, during this period, many proceeding, mostly by the wife. Allegation of misconduct were made on both the sides, maintenance was demanded and paid. The husband filed a petition for divorce on ground of cruelty- in which trial court granted the relief, the decision was however reversed by the High Court on the ground that the conduct of the wife did not fall within the category of cruelty. However the Supreme Court granted the relief as the marriage was completely broken down and that there was no use keeping such a marriage alive. It was also a classic case in which the consent to give divorce under consent theory was withheld by the wife for no reason.

# The meaning of the term ‘withdrawal’ does not means refusal to live under one roof. The opinion of the High Courts in India in this regard has changed dramatically, which has given a broad meaning to “withdrawal from society”. Earlier in a case of Tirath Kaur v Kirpal Singh, 1964 Punj 28, which was a case in which wife with consent of the husband took a diploma course. After the completion of her course she a got a job in a place which was at some distance from the husband’s house. As such parties cohabited: sometimes husband use to go to wife’s place and sometimes wife use to come to husband place. However after certain period of time husband asked the wife to quite the job and come back, but the wife refused. As such the husband filed a petition in the court for a decree of restitution of conjugal rights. Now the question which was before the court was: whether refusal to live under one roof by the wife, will amount to withdrawal from the society of the husband? The Punjab High Court referring to section 555 of Mulla’s Hindu Law held that: a wife’s first duty is to her husband is to submit herself obediently to his authority and remain under his roof and protection. Thus in such a case wife’s refusal to quit the job and to live with the husband under his roof will do amount to withdrawal from the society of the husband and that the decree for restitution of conjugal can be granted.

# However this opinion changed through case of Shanti v Romesh, (1971) ALJ 67, which was a case of same factual proposition as that in Kirpal Singh’s case. The Allahabad High Court through Katju J observed that: mere refusal of the wife to live with the husband is not a sufficient ground for granting a decree of restitution in favor of the husband, as wife taking up the job even without the consent of the husband would not amount to withdrawal from the society of the husband. This contention was followed by Gujrat, Madras and Rajasthan High Courts.

# After these developments the meaning of the term “withdrawal from the society of the other” has been evolved as refusal to perform conjugal relationship or complete ending of conjugal relationship. Thus withdrawal from society does not means withdrawing from the company of the other but from the conjugal relationship such as refusal to have marital intercourse, refusal to give company and comfort coupled with refusal to stay together, which will give the inference that conjugal relationship has ceased to exist, is the ground on which the decree for restitution of conjugal rights will be granted.

[10] “Reasonable cause or excuse” does not means that the reason or excuse should be as gravy and weighty as those are mentioned in section 13 (grounds for divorce). But it actually means that the level of greavyness and weightyness should be below the level of those mentioned in Section 13. As such for instance following can be held to be a reasonable cause or excuse: husband’s insistence that wife should live with the petitioner, wife’s reasonable apprehension that it would be unsafe to live with the husband, husband forcing an educated Brahmin wife to eat meat and drink liquor, addiction to drink and drugs accompanied by violent temper, false accusation of adultr,y immorality, persistence undue in familiarity with person of opposite sex.

Therefore withdrawal from the society without any such kind of reasons or excuse will amount to withdrawal without any reasonable cause or excuse cf: Dr Diwan Paras, Modern Hindu Law, 187-188.

[11] The legal ground as to which decree will not be granted, will only arise in situation where the withdrawal from the society is for some reasonable cause or excuse. Therefore as per explanation if the respondent claims that withdrawal is for some reasonable cause or excuse, the burden of proving the claim shifts to respondent.

[12] In T Sareetha v T, Venkat Subbaiah, 1983AP 356, the constitutional validity of the Section 9 was challenged. It was alleged to being violative of right to privacy and human dignity guaranteed by Article 21 of the Constitution of India and therefore is ultra vires of the Constitution. The Andhra Pradesh High Court through P.A. Choudhary J observed that: A decree for restitution of conjugal rights constitute the grossest form of violation of an individual’s right to privacy. It denies the women her free choice whether, when and how her body is to become vehicle for the procreation of another human being.State Coercion of this nature can neither prolong nor preserve the voluntary union of Husband and Wife in matrimony. Neither State coercion can soften the ruffled feeling nor clear the misunderstanding between the parties. The learned judge further held that: Section 9 did not promote any legitimate public purpose based on any concept of social good, and thus being arbitrary was violative of Article 14 of the Constitution of India.

# In Gaurav Nagpal v Sumedha Nagpal, 2009 S.C. 557, an issue was raised that the basic objective of the Section 13 is to prevent the easy break down of marriage and thus to strengthen it. But instead there is a phenomenal increase in the divorce petitions and thus this section is not serving its purpose and hence it should be removed from the statute book. The Supreme Court stated that: the validity of this provision cannot be questioned. Work has to be done at various other level to strengthen this institution.

# In Vadalasethi v Vadalasethi, 1994 A.P 13, was a case in which proceeding for setting aside ex parte proceeding of dissolution of marriage were pending, the husband died. A question was raised: whether the rproceeding for divorce can continue, even after one of the party has died? It was held by the Andhra Pradesh High Court that wife can continue the proceeding by bringing the husband’s legal representatives on record.

# Supra note 2
# Supra note 7
# Ibid

# Vinita Saxena v Pankaj Pandit, JT 2006 (3) SC 587, it was a case in which the marriage between the parties lasted only for five months. Both of them were living separately for 13 years. Marriage also was not consummated. Wife filed the petition on ground of physical and mental cruelty and insanity on part of husband. Trial court however dismissed the petition. High Court also dismissed the appeal despite the failure of the husband to appear before the court. Allowing the appeal of the wife, a devision bench of the Supreme Court speaking through Dr Justice AR Lakshmanan (as he then was) held that the order of the courts below have resulted in grave miscarriage of justice to the wife who had been constrained into living with dead relationship for 13 years and that the fact situation clearly showed that the husband and wife can never ever stay as husband and wife and wife’s stay with the respondent husband would be injurious to her health. Accordingly a decree of divorce was granted in favor of the wife against the husband.

# The situation from 1-6 are made by the commission itself whereas with regard to situation 7&8, are the situations under the category of “recommendation of others” obtained by the commission through a questioner.

# Though Law Commission is of the view that if any application for divorce is made on any of the ground specified in section 13 (1) or (2), than marriage is presumed to have been already broken down. However such formalities and technicalities are only to prevent the easy breakdown of marriages. If the recommendation of the commission in its present form is enacted than section 13 will be of no use as than parties will easily, without any formality will get separated to get divorced.

The  author can be reached at: shishir@legalserviceindia.com

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