Dinesh Singh Chauhan
Introduction
Marriage being regarded as a sacrament under Hindu Law is also believed to be made in heaven. This leaves one with the question: does the sacramental nature make it eternal or indissoluble, or do we have a choice to quit in between?
A successful marriage is not defined by merely living together for years but living together happily. There have been umpteen cases where the couple puts an effort to grow together yet develops animosity, ultimately leads to separation.
As the socio-economic condition of the spouse improved with the advancement of society, they also grew to be more self-reliant and independent. They are willing and ready to live apart rather being tied and living together while being dissatisfied with their marital relationship. Furthermore, with the steady progress of education, communication technology, and rising level of understanding, the societal stigma of divorce is rapidly fading in the current day. Divorce rules have been noticeably liberalised in line with this shift, particularly under the Hindu Marriage Act of 1955.
Current Status in India
If in certain circumstances, it is known that there are no prospects of advancement of the marriage, continuing to drag the marriage legally acts as cruelty to the spouse. It is only under the Hindu Personal Laws where such severe restrictions related to divorce exist. Muslim, Parsee and Christian marriage laws allow divorce more easily. Grounds for divorce are laid down under Section 13 and 13 (1A) of Hindu Marriage Act 1955. Furthermore, Section 27 and Section 28 of Special Marriage Act, 1954 also hold grounds in case of solemnized marriage. However, these legislations do not contain irretrievable breakdown of marriage as a ground for divorce. Sections 13 (1-A) and 13-B of the Hindu Marriage Act, 1955 are considered to be inadequate to counter each and every situation concerning remedies in marriage. Under the fault grounds of divorce theory, though the marriage may have been broken down, the parties are expected or largely compelled to live with each other in the wedlock.
If the marriage has lost the actual substance and sanctity, it is prima facie that the marriage is totally unworkable, emotionally dead, beyond salvage and thus, has broken down irretrievably. Historically, divorce grounds are based upon two theories, mentioned in Hindu Marriage Act, (1) Fault Theory (2) Mutual Consent Theory.
Furthermore, the study of the implementation of divorce laws that evolved over the last few decades indicates that getting a divorce on the mere basis of a marital ground or on the grounds based on “fault-based theory” recognised by law is not only time consuming and nerve-racking, but it also includes a huge amount of both mental and physical agony by inducing harassment and shame on both the parties. And if, after such a lengthy and exhaustive struggle, the evidence fails to prove the marital fault, the Petitioner is not only denied the remedy demanded but it also leads to severed ties between the two parties due to the allegations and harassment faced due to trials.
Thus, in order to avert such unfortunate circumstances, the Law Commission of India proposed “irretrievable breakdown of marriage” as a separate cause for obtaining divorce in 1978. The condition for such a breakdown was established as a point of separation with very little chance of reunion. In its 71st Report, the Law Commission of India firmly recommended that “irretrievable breakdown of marriage” should be included as a separate ground for obtaining divorce under the Hindu laws. On the basis of the Report, the Marriage Laws (Amendment) Bill, 1981 was accordingly introduced in Parliament but it later lapsed due to the continuous and persistent opposition it received from few women organisations.
This was followed by the series of large number of debates regarding both advantages and downsides to determine whether to include “irretrievable breakdown marriage” as a separate ground of marriage, but ultimately it had to be withdrawn due to continuous high level of resistance. Though “mutual consent” as a ground for divorce, on the other hand, has already been included in various personal laws to give speedy relief to the aggrieved parties to some extent.
Legal Attitude
Over the period of time the Supreme Court has indeed granted the remedy of dissolution of marriage in numerous cases, not merely because of presence of either adultery, cruelty, or desertion, but also on the mere ground of irretrievability where the sacred tie of marriage between the two parties had entirely broken down; lost its trust, love, and care for the opposite parties; had a severe emotional breakdown; failed to manage their respective feelings; and lastly when even any other alternate way could not restore or preserve the marriage concerned. Though there is no specific provision for “irretrievable collapse of marriage”, the Supreme Court has, over the period of time, used its jurisdiction conferred by Article 142 of the Constitution to administer required absolute justice for the parties in marital procedures. The Court, further, felt that in extreme instances where the parties are not only involved in accusing each other, but when the very basis of their marital relationship has collapsed and cannot be rebuilt at all by any available way, the Court must provide for the decree of dissolution of marital relations on the grounds of “irretrievable breakdown of marriage”.
Irretrievable breakdown did not go on to formally become law, but acquired informal validity as a principle evoked in a number of judicial decisions granting divorces. The resultant legal confusion was one of the main reasons the Law Commission took up the question again as a suo motu issue, with the 217th Law Commission of India Report in March 2009 recommending (again) that irretrievable breakdown be added as a ground of divorce to existing provisions.
In [“Naveen Kohli Vs. Neelu Kohli 2006 (4) SCC 558], the Supreme Court itself advised the Government to carefully consider incorporating “irreversible breakdown of marriage” as a reasonable ground for granting divorce under the Hindu Marriage Act, 1955.
With regards to the current status of irretrievable breakdown of marriage in India, it can be said that the legislature has failed to include such breakdown as a ground for divorce, though Supreme Court in various cases like Hon’ble Supreme Court in [“Sanghamita Ghosh Vs Kajal Ghosh”, (2007) 2 SCC 220]; [“Samar Ghosh Vs Jaya Ghosh”, (2007) 4 SCC 511]; [“K. Srinivas Rao Vs D. A. Deepa”, (2013) 5 SCC 226]; and [“Sukhendu Das Vs Rita Mukherjee”, (2017) 9 SCC 632] in a very recent case of [“R. Srinivas Kumar Vs R. Shametha”, AIR 2019 SC 4919] utilized its power under Article 142 of Constitution of India and dissolved considerable marriages on the same ground.
Conclusion
Marriage is indeed considered as a sacrament under the Hindu laws and is supported very well with the help of legal ties, but by refusing to break those ties when their binding becomes unbearable, the law in such cases no more ensures the sanctity of the marriage rather it becomes mere legal obligation for the parties. It indicates a lack of consideration for the emotions and beliefs of the parties. Divorce laws protect the parties from such meaningless obligations by allowing them to break their marital ties. It is pointless to keep two people bound by a marriage connection if they cannot live peacefully together.
If we consider various scenarios where the wedlock has broken down because the parties are living apart, or the wife has only lived in the matrimonial home for a few months after marriage, or the wife has made mere allegations of cruelty and desertion against the husband, and the husband has made counter-allegations against her, or any other scenario where the parties have fallen apart from their marital relationship and their marriage thus, remains irretrievably broken, then in these cases, it is in the interest of justice that a decree of divorce is granted so that both parties can live apart but in peace. Law cannot turn a blind eye to miserable situations where one of the spouses finds it laborious to continue. As is often put pithily, the marriage is merely a shell out of which the substance is gone. Such a course would encourage continuous bickering, perpetual bitterness, and may often leads to immorality. Therefore, the Judiciary took the firm stand on considering the necessity of including “irretrievable breakdown of marriage” as an independent ground for divorce and thus, over the period of time has been able to do the Justice in at least some of the cases, but there still remains the major gap due to non-existence of legislative wisdom on the same. Since Judiciary is the last hope for its citizens, it should not shut the doors and should acknowledge that “No reason to stay is a good reason to go.”
Therefore, it is now high time to evaluate and amend the Hindu Marriage Act of 1955 and the Special Marriage Act, 1954, and to take immediate steps to include the “irretrievable breakdown of marriage” as one of the grounds of dissolving the marriage between the two parties.
(The author is Advocate J&K High Court of Judicature, Jammu.)
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