The topic of divorce is a bit of an anathema in Indian society. Marriage in our country has always been a concept of spiritual devotion and breaking such a holy bond is considered as one of the greatest sins in the Hindu religion. This seems to be the most prominent reason why couples from yesteryears tend to continue through their marriage even when they were not happy. Also, being a matter of social shame and financial dependence by women on men, marriages were forced to be preserved rather than dissolving them.
With constantly changing social dynamics, the dissolution of marriage was allowed on the basis of offence(s)/fault(s) committed by one party and by mutual consent of both the parties. However, the case where marriage has irretrievably broken down and there is no possibility of reconciliation is not an expressly mentioned ground for divorce, despite numerous recommendations.
I. Introduction
In 1772, when Warren Hastings planned to keep all the personal laws related to marriage, caste and inheritance intact within the community by codifying them, a quest for finding the oldest text began. Ultimately, they found their answers in many shastric texts, including one of the most popular texts today – the Manusmriti, a treatise authored by Manu and translated by Sir William Jones in 1776 and they formulated and established Hindu Law to govern the Hindu Community. Although there have been many debates as to how discriminatory and misogynistic this text is, a relevant verse for us is as follows –
“न निष्क्रयविसर्गाभ्यां भर्तुर्भार्या विमुच्यते ।
एवं धर्मं विजानीमः प्राक् प्रजापतिनिर्मितम् ॥[1]”
Manu emphatically declared “neither by sale, nor desertion, can a wife be released from her husband.” He insisted on mutual fidelity until death. [2] Marriage was considered as a sacrament – religious and divine in nature. In Hindu religion, it is said that once solemnized, the partners promise to be with each other for seven lives and to stick to each other’s side through thick or thin. Disrespecting the institution of marriage is considered as one of the greatest sins.
As late as 1955, divorce under the Hindu law was rare and available only under exceptional circumstances. But as the times have changed, the idea of marriage has been adapted and modified accordingly. The Hindu Marriage Act, 1955 was the first central enactment which revolutionised the matrimonial laws and provided for divorce and other matrimonial reliefs under various circumstances. [3]
It has provided both husband and wife with grounds for divorce under Section 13 of the said act. Many grounds for divorce have been identified, formulated and commented upon in the Act and various Supreme Court Judgements. Although suggested in law commission reports and recommended by the Hon’ble Supreme Court, irretrievable breakdown of marriage still has not expressly found its way into the act as a ground for divorce.
II. The Theories
Generally, there are three theories in which the grounds for divorce are categorized. They are popularly termed as the Offence theory, the Mutual Consent theory and Irretrievable Breakdown of Marriage Theory. In the Hindu Marriage Act, Section 13 (1) and 13 (2) contains the grounds for divorce, most of which are related to the Offence theory.
“In the early law of England, in most of the Commonwealth countries and in most states of the U.S.A., the offence theory was considered to be the most appropriate basis of divorce.” [4]
The offence theory or fault theory base its idea on the fact that one of the parties in the marriage has committed an offence or concealed relevant and important information substantial to the marriage so that the very roots of the marriage – the very bond on which this relationship was being continued is shaken and there is no possible way that it could be continued further. Then there comes the mutual consent theory, which also is codified and a relief provided under section 13B of HMA.
The basic idea behind this theory is if partners have willingly and mutually consented to the marriage, then they can even mutually revoke their consent. Mutual Consent Theory only covers the aspect when both parties are ready to discontinue their marriage and mostly, it is agreed in between the parties that they will drop any charges pending against each other and get on with their lives harmoniously but what about the circumstances when there is no fault committed by any party and they could not even reach to any agreement?
Here comes the irretrievable breakdown theory, which says that if the marriage has irretrievably broken down, with not even a slight possibility of conciliation and if it is continued, it will just add to the misery of the partners, then it should be dissolved. But this theory still has not found its way expressly into the personal laws.
III. Investigating the Standpoints
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Provisions Within the Hindu Marriage Act
In 1964, the Hindu Marriage Act was amended and the provisions 13 (1A) (i) and (ii) were inserted, which read as follows (Substitutions by Section 7 of The Marriage Laws (Amendment) Act 1976 (Act 68 of 1976) included):
“13. (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—
(i) 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
(ii) 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.”
These provisions are often said to take into account (however not expressly) the irretrievable breakdown theory. The aforementioned provisions make it clear that the only time marriage is considered to be irretrievably broken down is after passing and disobeying the decrees. This only provides a backdoor entry to the concept of irretrievable breakdown of marriage just reveals that legislatures are just trying to circumvent express inclusion the breakdown theory within the Act. Within personal laws, the theory has been introduced through judicial precedents only within Muslim Law [5].
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Law Commission Reports
The theory of Irretrievable Breakdown has also been recommended twice to be expressly included– once in 71st Law Commission of India Report (1978) and second by 217th Law Commission of India Report (2009), but still the recommendations have been ignored by the legislature. The 71st Law Commission Report has examined various suggestions from Judges and Advocates as well as analysed the position of foreign courts in this matter. The report has commented on the yardsticks to be placed for the insertion of such clause as well as safeguards for the subsequent effects of such divorce.
Among the yardsticks, the report recommends a period of three years of living separately as the standard period for obtaining such divorce[6]. Not only this, the report examines other factors such as aversion from sexual relations, unwillingness to perform conjugal rights, etc. as substantial proof of disruption of marriage. Not stopping here, they further continue to discuss the safeguards to be provided to children born out of the wedlock, old parents, etc. The report was exhaustive in nature and so much ahead of its time, but the recommendations were not included in the Act.
After, the Naveen Kohli case [7], the 217th Law Commission of India took suo moto study of the subject and upheld the findings of the 71st Law Commission Report. The law commission report has provided a comprehensive report on the recent developments on the subject and mentioned several High Court and Supreme Court Judges’ opinions on the matter [8]. This time legislature seriously considered the recommendations, which has been elaborated upon further.
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Judicial Court’s Stand
Judicial Court’s stance has always been of the one of saving the institution of marriage. But subsequently, they also ensure that any person should not continue his/her life in misery. In Ram Kali v. Gopal Das [9], Delhi High Court, while commenting on the intention behind the insertion of Section 13(1A), has observed the following –
“The underlying object of the legislature in inserting sub-section (1A) in Section 13 seems to be that if there has been no resumption of cohabitation or no restitution of conjugal rights as between the parties to the marriage for a period of two years or upwards, after the passing of a decree for judicial separation or for restitution of conjugal rights, the Court should assume that the relations between the parties have reached a stage where there is no possibility of reconciliation and as such it might grant the decree of divorce.
The aforesaid object is in consonance with the modern trend not to insist on the maintenance of union which has utterly broken down. It would not be a practical and realistic approach, indeed it would be unreasonable and inhuman, 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.”
The irretrievable breakdown has been formally recognized in this judgement. However, express provisions and yardsticks are still needed to adjudge upon such subjects. Hon’ble Supreme Court has recommended the ground to be included multiple times upholding the findings of the reports [10].
In Samar Ghosh vs. Jaya Ghosh [11], the Court has expressly looked at pros and cons as well as foreign judgements and subsequently upheld the findings of the 1978 Report. In the leading case of Naveen Kohli v. Neelu Kohli [12], the Supreme Court has strongly recommended to include the irretrievable breakdown of marriage as a relevant ground for divorce. Their stand has been elaborated as well in 217th Law Commission Report.
There have been dissenting opinions as well. Most High Courts have continued to deny relief to the parties on the basis of this ground of divorce [13]. There have been Supreme Court Judgements as well, where the divorce was not granted on the basis of this ground because the Courts consider a chance of reconciliation between the parties or because the ground has not been expressly included in the Act [14].
Eventually, the Supreme Court has started granting divorce using the irretrievable breakdown theory under Article 142 of the Constitution of India [15]. In the recent case of R. Srinivas Kumar v. R. Shametha [16], has made it clear that “only in a case where one of the parties do not agree and give consent, only then the powers under Article 142 of the Constitution of India are required to be invoked to do the substantial Justice between the parties”, a significant transition from the mutual consent theory, which is often said to encompass the irretrievable breakdown theory.
The Supreme Court has further elaborated on their point in the case of Munish Kakkar v. Nidhi Kakkar [17], stating that “there is, thus, the recognition of the futility of a completely failed marriage being continued only on paper”, subsequently expressing regret that legislation has still not included the irretrievable breakdown of marriage as a ground for divorce.
Even in foreign countries like New Zealand and Canada, the breakdown theory has been accepted as an established ground for divorce. In foreign countries like Australia, ‘the irretrievable breakdown of a marriage is the sole ground for the dissolution of marriage.[18] Most importantly, if we look at the United Kingdom, the concept of matrimonial offence for divorce has been replaced by the breakdown theory by the enactment of the Divorce Reform Act, 1969. [19]
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Legislature
In the 45th Report on the Marriage Law Amendment Bill, 2010 [20], the Rajya Sabha considered the suggested theory to be included within HMA. Parliamentary debates were also held. Rajya Sabha agreed with the rationale that Breakdown Theory should be introduced within the Act but somehow felt that the provisions mentioned in previous reports can be misused against the women.
The provisions were again referred to in 2013 in The Marriage Laws Amendment Bill, 2013 [21]. Numerous amendments were suggested. New provisions to be included were Section 13C – which encompassed the Irretrievable Breakdown of Marriage as a ground for divorce, Section 13D – wife’s right to opposition on hardships that can be faced after passing a decree under Section 13C, Section 13E – restriction on passing such decree if children are affected, Section 13F – provisions related to the settlement of movable and immovable properties in such case and subsequent amendments in Section 21A and Section 23 of the Act.
Rajya Sabha passed the bill this time but it was never taken up in Lok Sabha. Eventually, the suggestion had to be dropped after vehement opposition from women organization, who believed that the provision will be exploited by men and women will still continue to suffer, which has also been mentioned in the 2010 Rajya Sabha report.
The next obvious question is why this theory is not being expressly accepted for divorce and why are legislators not including it the act expressly? Well, the answer to this can be found in the intention of the Family Courts Act, 1984, specifically the words “to promote conciliation”. Personal laws as well as legislation have always been the one to save the institution of marriage rather than interfering in it. Our personal laws rest on the stand that the nature of marriage is devotional and holistic, and the Courts should do whatever it is in their hands to save the marriage of the parties involved in the dispute.
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Societal Reactions
‘The working of divorce laws over a period of few decades reveals obtaining a divorce on the basis of a matrimonial ground specified under the law is not only very time consuming and nerve breaking but also involves lot of harassment and embarrassment. All sorts of allegations are up in order to bring the case within the pigeon hole of the ground. leads to a lot of mud-slinging thereby creating bad blood between the parties. [22]
But the times have changed and so has the societal outlook towards these issues. Individuals have started to become more financially and emotionally independent. Rapid urbanization, the influence of western societies disintegration of joint family structures and rise of nuclear families, the effect of women empowerment movements in enhancing socio-political and legal rights of women, rise of education and family policies by the government have a significant and colossal effect on the institution of marriage within India. The concept of yesteryears to tolerate a person even if it is not your wish is looked down upon.
Marriage now is being seen as civil contracts and an individual’s consent and dignity are not only respected but also defended by our society and Courts. With increasing emphasis on the individual’s consent and willingness, circumstances have arisen where none of the parties is at fault. In the present scenario, this theory should necessarily be included as no person as of today will consider continuing marriage in distress. Thankfully, our courts have been quick in recognizing this need.
With the changing times, it is better and important to introduce this ground of divorce and its need as more than ever. This relevant extract from the 71st Law Commission Report says it all –
“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. Public interest demands not only that the married status should, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, the public interest lies in the recognition of that fact.
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 exist. Human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give an adequate response to the necessities arising therefrom. [23]“
IV. Conclusion
Law and society have always been co-dependent upon each other. Laws reflect how society will be governed and society decides what the law should be. Most often than not, divorce cases remain pending within the court with vindictive, embarrassing and detrimental charges – a clear violation of not only a person’s right to live with dignity but also their right to get speedy justice.
Irretrievable Breakdown Theory has become the need of the time and it must be expressly included within personal laws. Marriage is not a turmoil one has to go through; it must be a place one could live happily. Our courts have already recognized this, now the time remains to get it formally, expressly included within our statutes.
References
[1] Manusmriti, Chapter IX, Verse 46
[2] Chand Narain Gautam v. Smt. Saroj Gautam, AIR 1975 Raj 88
[3] Kusum, “IRRETRIEVABLE BREAKDOWN OF MARRIAGE: A GROUND FOR DIVORCE”. Journal of the Indian Law Institute, April-June 1978, Vol. 20, No. 2 (April- June 1978). pp. 288-303
[4] Diwan, Paras. “Concept of Marriage and Theories on Divorce” in Modern Hindu Law (Codified and Uncodified) (24th Edition). Allahabad Law Agency. 2019. 62-77
[5] Noor Bibi v. Pir Bux, AIR 1950 Sind 8; Balgis v. Nuzmal, PLD (1959) Lah 566; Aboobakar Haji v. Mamu, 1971 KLT 663; Yousuf v. Soweamma, AIR 1971 Ker 261.
[6] 71st Report of Law Commission of India, 1978 <Retrieved on 31st December 2020 at 02:00 PM> Available Here
[7] Naveen Kohli v. Neelu Kohli AIR 2006 SC 1675
[8] 217th Law Commission Report of India <Retrieved on 1st January 2021 at 03:40 PM. Available Here
[9] Ram Kali v. Gopal Dass ILR 1971 Delhi
[10] An example is Ms Jorden Diengdeh v. S. S. Chopra AIR 1985 SC 935
[11] Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511
[12] Naveen Kohli v. Neelu Kohli AIR 2006 SC 1675
[13] See Geeta Mullick v. Brojo Gopal Mullick AIR 2003 Cal. 321, Tapan Kumar Chakraborty v. Jyotsna Chakraborty AIR 1997 Cal. 134
[14] See V. Bhagat v. D. Bhagat AIR 1994 SC 710, Vishnu Dutt Sharma v. Manju Sharma (2009) 6 SCC 379, Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234, Darshan Gupta v. Radhika Gupta (2013) 9 SCC, Manish Goel v. Rohini Goel (2010) SCC 293
[15] See Kanchan Devi v. Pramod Kumar Mittal AIR 1996 SC 3192 for example
[16] R. Srinivas Kumar v. R. Shametha AIR 2019 SC 4919
[17] Munish Kakkar v. Nidhi Kakkar AIR 2020 SC 111
[18] Kusum. “IRRETRIEVABLE BREAKDOWN OF MARRIAGE: A GROUND FOR DIVORCE”
[19] Kusum. “IRRETRIEVABLE BREAKDOWN OF MARRIAGE: A GROUND FOR DIVORCE”
[20] FORTY FIFTH REPORT ON THE MARRIAGE LAWS (AMENDMENT) BILL, 2010; Rajya Sabha <Retrieved on 4th December 2020 at 06:00 PM>. Available Here
[21] The Marriage Laws Amendment Bill, 2013, Bill No. XLI-C of 2010 < Retrieved on 1st January 2021 at 02:00 PM> Available Here
[22] Kusum. “DIVORCE BY MUTUAL CONSENT”. Journal of the Indian Law Institute, January-March 1987, Vol. 29, No. 1 (January-March 1987), pp. 110-114
[23] 71st Report of Law Commission of India, 1978
