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IRRETRIVABLE BREAKDOWN OF MARRIAGE THEORY & ITS RELEVANCE IN INDIAN PERSONAL LAWS
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Article Details
IRRETRIVABLE
BREAKDOWN OF MARRIAGE THEORY & ITS RELEVANCE IN INDIAN PERSONAL LAWS
AUTHORED BY
- MANAVI MISHRA
BA-LLB 3RD
YEAR
SYMBIOSIS
LAW SCHOOL, NAGPUR
1. Abstract:
This paper delves into the aspect of
Irretrievable breakdown theory wherein, the husband and wife never again reside
together, according to the definition. The two accomplices and one accomplice
must convince the court that the marriage has irretrievably broken down and
there is no realistic situation of reconciliation. Although the life partners
share a roof, the prevalent rules in regards to subject of separation has not
yet recognised a scenario where their marriage is analogous to a division even
though they are living together. Subsequently, the paper analyses the personal
laws and connotes the concept of irretrievable breakdown theory and its
relevance in the Personal Laws.
Personal law is defined as a
legislation that applies to a specific group of people, a group of people, or a
person depending on their cultures, beliefs, and political views. Everyone in
India is a member of a different caste, practises a different religion, and
holds unique beliefs. Several sets of laws determine what they believe and when
making these regulations, the various practises of that faith are considered. Further,
the paper discusses numerous scenarios in which the provision might be used and
how Article 142 should be interpreted in light of the Indian
Constitution. The author further explores the specific concept and its
application while clarifying the definition and interpretation of the phrase
"full justice" using supporting case law.
The author discusses the court's
reasoning regarding the contentious claim that Article 142 violates statutory
laws since the powers granted by this particular article cannot supersede an
existing statutory law by citing a number of court decisions. This paper
focuses on the concept of irretrievable breakdown of marriage in particular and
the theories of divorce in general and along with its history, merits and
demerits with special reference to personal laws underneath Part III of the Constitution
of India and analysing its relevance along with the landmark judgements and
their drawbacks.
Keywords: Irretrievable Breakdown, Marriage,
Personal Laws, Divorce, Restoration, Constitution.
2. Introduction:
With the rapid industrialization,
urbanisation, education, the modern society has adapted the new changes.
Earlier, Divorce was not permitted and thus, two persons entering into a
marriage were considered irrevocably bound to stay together till death. For the
first time a legislation was passed that allowed individuals to file a divorce
petition on a list of predetermined reasons. In the past, there were not enough
grounds for divorce due to it being stigmatized and not condoned. Women were
generally deprived of the right to divorce and were compelled to live their
entire lives alongside their spouses and in-laws. Even if they got a divorce,
their economic status was frequently overlooked in society. However, as an
outcome of the Hindu Marriage Act, 1955 both may now divorce. There have
been two main categories for divorce theories:
Firstly, the Fault theory which
is a traditional theory wherein one party approaches the court of law seeking
divorce due to the fault of the other party and the ground for divorce on the
basis of fault that is straight forwardly directed against the party are ‘cruelty’,
‘desertion’, ‘adultery’, ‘bigamy’, ‘rape’, ‘Sodomy’ or ‘bestiality’ and Conversion,
insanity or psychological disorder, venereal disease, abandonment of the world,
and being absent for a minimum of seven years are grounds for divorce that
aren't attributable directly to the other spouses.
Secondly, the No side need be
declared guilty or at fault according to the no-fault theory. It is regarded as
the "breakdown of marriage," and based on this concept, a divorce
originating from an irretrievable breakdown of marriage can be performed with
just the mutual assent of the parties involved or even without the agreement of
the different parties. However, even under no-fault theory, somehow or the
other fault of either of the parties does come into the picture.
There is also a ‘theory of consent’
which is mentioned in the Section 13 B of the Hindu Marriage Act, 1955.
This approach primarily asserts that when both parties indicate their
willingness, the union can be terminated without attempting to exhibit
misconduct. The simple rationale behind this theory is that since two
individuals can marry each other as per their own free will, they can also
choose to move out of the marriage based on their own free will.
1.1 Background of Irretrievable Breakdown of Marriage:
Over the past several years, the
Indian legislature has been open in adopting new grounds for divorce in
response to the changing social norms. The subject of utilizing dissolution of a
union as a basis for divorce. India's Law Commission's report on the subject,
which again was submitted in 1978, recommended incorporating such a ground to
the Act 4, but no decision was taken for nearly 50 years. This same report's
foremost objective was to figure out whether and within what criteria the
irretrievable breakdown of a marital relationship can be considered as a valid
ground for divorce.
As a matter of fact, the term was
first introduced in New Zealand in the year 1921, under which the court held
that “when matrimonial relations have ceased to exist, it is not in the
interests of the parties nor in the interest of the public to keep the man and
woman bound as husband and wife in law”, “in the event of such separation, the
essential purpose of marriage is frustrated and its further continuance is not
merely useless but mischievous”.
This particular theory arose in the
case of “Masarati v. Masarati[1]”,
where the situation aroused as to both the husband and wife committed the
offence of adultery.
Law Commission also observed that if neither
party is at fault, or if there is a defect, it is of a kind that neither party
wants to admit, but the marriage has nonetheless dissolved, the rule that
limits divorce to matrimonial disability creates injustice. In other words, an
irretrievable breakdown of marriage occurs when the essential parts of the
marital relationship ties, respect, etc.—have vanished and only the façade of a
marriage remains.
It basically concludes that in
instances where the marriage has stopped existing not only in reality but also
in substance, then divorce must be seen as an inevitable option in order to
avoid any difficult scenario. The primary motive of the provision is to
basically bring solidarity among the parties involved and the children, if any,
in order to bring them to terms with their new scenario and operate amicably
for the regulation of their relationship, regardless of the changed
circumstances.
2.2 The Benefits and Drawbacks of
Irretrievable Breakdown of Marriage:
Prior to analysing the advantages and
drawbacks of this theory, it is essential to acknowledge the question that
arises as to whether the “Hindu Marriage Act” can be amended with the
perspective of turning this theory as a valid ground in order to grant a decree
of divorce? Subsequently, in order to come to a conclusive answer to this
question would be to analyse the constant changing nature of families and how
by the passage of time, they are becoming more liberal and progressive.
Therefore, it is crucial that the legal legitimacy for the coalition to be
repealed if it cannot be constituted.
It is not unusual that all sort of
claims is freely tossed around in the courtroom so under the present
independent judiciary. We are not required to abide on the path of an obsolete
divorce law that mandates that both men and women must be found guilty or
innocent. The primary objection that this viewpoint of a marriage that has
irrevocably broken-down theory is an ambiguous one has already been addressed.
One of the major drawbacks of this concept
could be that it authorised the spouses, or even merely one person, to
discontinue the marriage at any point, altering marital relationship from a
partnership for life to a partnership that can be discontinued at the couple's
pleasure. Secondly, it is a well-established fact that no person can take
advantage or benefit of his own wrongdoing; a spouse who precipitated the
disintegration of the marriage may not use it as rational basis for pursuing a
divorce against the other spouse's inclinations.
The legislation will have finally
established official recognition of the idea that a person may gain by his or
her own wrong permitting any spouse to divorce someone else without the other's
approval will after a set threshold is reached of separation.
Further, according to Section 13 of
The Hindu Marriage Act, subsection (1A), clause (ii), 1955, Subsequently,
under this provision, Therefore, it should not be contended that under the
Hindu Marriage Act's provision as they currently hold, no one may benefit by
his own wrongdoing.
However, it would be unfair for the law to
overlook the fact that it would be extremely contagious for the society and whenever
a legally binding contract is attempted to be established despite the absence
of an emotional ground, it is detrimental for the parties' concerns.
Also, it is reasonable to assert that
the marital relationship is irreversibly damaged when spouses have been apart
for a long time. The marriage just happens to be merely a fiction, tied by
legal authorities.
The High Court, in numerous cases has
criticized or expressed mere disagreement against the breakdown theory as a
valid ground for granting divorce. According to the High Court's denial, one of
the assertions made there is that a wife and a husband would never cohabitate
just because they have been separated. At this time, it does not seem that
there is any likelihood of them doing so.
However, this claim is extremely
difficult to prove. Contrarily, it claims that it does not imply that the
marriage has ended automatically. simply because of the very reason that they
have not been sharing the same roof.
Also, it is an extremely subjective
concept since what might be irretrievable for one person might not be for the
other. However, such a circumstance cannot remain forever, and there must
arrive a stage when either of the parties should be authorized to acquire the
court's verdict on whether or not there is a likelihood the marriage could be
saved.
The Marriage Laws Amendment Act, The
Hindu Marriage act of 1955, and latter of which offer additional sufficient
grounds for "Irretrievable breakdown of marriage" for the reasons of
divorce proceedings, both were used to further criticize this theory.
The Indian government's Ministry of
Education and Department of Social Welfare have also affirmed their dissent
with this theory. Since there is no legal way to force a spouse to continue
living with the consort, trying to keep the parties indefinitely bound to a
union that has failed will not accomplish anything.
Marriage is a commitment to a
lifetime of living alongside and when the prospects of continuous cohabitation
have been ended, the legal relationship should be abolished.
3. Review of Literature:
The Article “Irretrievable
Breakdown of Marriage” written by Ashish Jain in International Journal of Legal
Service and Innovation delves into the aspect of Irretrievable
breakdown of marriage as a point of time wherein the marriage is not persistent
and jurisprudentially such a marriage in the eyes of the law has come to an
end. with regards to the various grounds
and the sole jurisdiction of the Supreme Courts to grant divorce on the ground
of Irretrievable Breakdown of Marriage.
The Article also considers various
Judicial Precedents that has helped evolve the concept of Irretrievable
Breakdown of Marriage. The Article emphasis on the need of the Indian
Legislature to introduce the concept of Irretrievable breakdown of marriage as
an official ground of divorce to grant decree of divorce in the light of
justice, equity, and good conscience.
The paper “Irretrievable
Breakdown of Marriage: A Critical Study” delves into the study of
requisites of marriage in specific personal laws and religions, namely Hindu,
Muslim, Parsi, Christian. The author deals with a critical study of the concept
of Irretrievable breakdown of marriage as an important ground of divorce in the
religions above mentioned.
The paper studies the various
conditions and requisites of marriages under various personal laws along with
the importance of Divorce as a part of the Marriage as a contract. Considering
the aspect of changing times and subsequently the laws becoming complex. The
paper also focuses on the Judicial Intervention in the matrimonial laws.
4. Aims & Objectives:
·
To
delve into the concept of Irretrievable breakdown of Marriage and its relevance
in Indian Personal Laws.
·
To
study and understand the concept in the light of Constitutional perspective.
·
To
study and analyse the concept of Irretrievable Breakdown of Marriage in every
Indian Personal Laws.
5. Hypothesis:
With change in times and subsequent
complex changes in the societies have also led to the evolvement of laws
overtime. From considering divorce as a long due taboo, the society has come
long way with regards to the aspect of accepting it in the realm of several
grounds. Irretrievable Breakdown of Marriage being one such concept that the
judiciary has looked into as a legitimate ground of divorce which has helped
open the doors of multiple matrimonial cases wherein the spouses are compelled
to live under the same roof despite the irrevocable differences.
6. Research Question:
·
Whether,
and how under what circumstances the irretrievable breakdown of a marriage may
be used as a basis for divorce under that Act?
·
Whether
it would be harmful to women's interests to include the doctrine of
irretrievable breakdown as grounds for divorce?
7. Methodology:
Doctrinal Research Paper was
conducted for this research article. The intricacies was collected through
different books, articles and papers. The main sources for this research are
online papers and publications by various scholars.
8. Constitutional Perspective:
8.1. Article 142 of the Indian
Constitution & the Supreme Court's Inherent Jurisdiction
The Indian Constitution's Article 142
grants the Supreme Court exclusive authority to: authority to "complete
justice" in whatever decision it makes. But in recent years, the
aforementioned Article 142 has grown significantly, and the Supreme Court
frequently uses it to determine cases and provide "full justice."
Furthermore, the statute does not contain any particular guidelines or rules
that would specify when, when, or under what conditions the Apex Court might
use the aforementioned article to "complete justice."
According to our constitution, the
Supreme Court is given vast authority and has the power to issue exceptional
leave in defiance of rulings or directives from anybody. According to the
Indian Constitution, the Honourable Supreme Court has the power to declare that
courts have always had sufficient jurisdiction to resolve disputes between
parties who appear before a court, and all other courts in the country are
required to follow the standards it has established. The nation and the sole
jurisdiction to hear civil matters of the President or Vice President.
In short, The Article 142 of The
Indian Constitution is a provision that authorises the jurisdiction to pass a
particular “Decree or Order” which is essential in order to attain absolute righteousness.
It ultimately reinforces the Supreme Court's pre-existing power to assure that
justice is carried out while protecting the court from being constrained.
In light of the fact that matrimonial
proceedings are often delayed due to reconciliation between the parties, the
Supreme Court of India has utilized this jurisdiction even in cases of
matrimonial disputes that have been ongoing in the Tribunal or court.
Considering marriage status should be perpetuated whenever, wherever, and for
as long as possible, this is in court observation.
8.2 Personal law constraints &
Part III of The Constitution of India:
Higher authorities, including Supreme Court of
India, have been obligated since the Indian Constitution's creation to find a
workable middle ground between two extremes: personal laws that support
religious practises and Part III of the Indian Constitution, which is the
chapter on fundamental rights.
There have been instances where the
constitutional validity of Personal laws has been questioned. To reconcile the
application of personal laws and based on religious beliefs along with matters
of women's equality as well as legal fairness is always problematic for the
court. It is essential to bring up the Shah Bano case since it has inaugurated
a new paradigm of judicial interpretation of personal laws, which were
traditionally seen as a fragile area of the law.
One of the major drawbacks that drew
from the analysis of personal law was that it was extremely gender discriminating;
In court, numerous women from various regions have appealed the legitimacy of
the personal laws' biased component. While dealing with problems like
infidelity, polygamy, monogamy, separation, child custody, inheritance, and
incest in their matrimonial homes, their primary worries are the possibility of
forced marriage, deadly situational circumstances of inter-caste, inter-class,
and inter-religious marriages, and property battles.
The notions outlined in Part III of
the Constitution have since been ruled to not apply to personal laws that are
based on religious doctrine and common practise. As a result, personal laws
don't appear to be laws in effect under Article 13 of the Constitution.
Further, considering the aspect of religious faith and belief, if religious
practices collide with established and effective morality, health, or welfare
reforms, those must be reformed before the state's primary legislative branch
may commence.
In the light of the judicial review; Certain
constitutional goals, such as the Uniform Civil Code, have always accompanied
the idea of reviewing. While addressing the constitutionality of personal law
and worrying about the Uniform Civil Code, the courts were unable to avoid
acknowledging it. Further, other sectors have legislation' constitutionality or
logic under scrutiny. Finding a balance between personal rules based on
religion and worries about gender justice and the fairness of the law is a
constant challenge for the judiciary.
Numerous instances exist where
personal laws or legal requirements were contested for the reasons outlined
above. In a few instances, courts made it a point to order the Union of India
to include UCC as a component of the system even if they had not reached a
decision on the subject of the constitutionality of personal legislation.
A specific modern path of justice
with regard to personal laws of the law passed after the Constitution's
adoption is to evaluate them in light of the various sections of Part III
without delving into the technical issue of whether the personal law is a law.
There will be no valid claim regarding the intention to employ Part III's
provision to learn personal rules.
In a community where exploitation,
discrimination, and the denial of unconditional acclaim are commonplace, the
pursuit of equality, freedom, and security is of utmost importance. A fair and
impartial legal relationship shall be established under various individual laws
through the application of Part III.
This is preferable than arguing about
the idea of teaching by the same community code. It will be simpler to obey the
Uniform Civil Code if the ideas of justice and freedom have been introduced
into the sphere of human law.
9. Interrelationship & relevance of Irretrievable
Breakdown Theory in Indian Personal laws:
9.1 Hindu Personal Laws
Divorce under the Hindu Personal Law,
as per the Section 2 of the Hindu Marriage Act of 1955, divorce is
recognized under Hindu personal law for every person who designates as a Hindu
in any of its forms or developments, a Buddhist, Jain, or Sikh, in addition to
anyone located in the areas allowed by law who is not a Muslim, Christian,
Parsi, or Jew. Either spouse might very well make an application before the
relevant court for a decree of dissolution of the marriage or divorce under Section
13 of the Act. Any spouse may file for divorce on one of two reasons based
on the "break-down" theory: that once the court separation decision
is issued, there must be a one-year waiting time before cohabitation can
resume. Thus, following the passing of the decree for restitution of marital
rights, there will not be any restitution of conjugal rights for a period of
one year or longer.
Therefore, the idea of marriage also
depends on the personal law that a particular person practises, even though
some religions consider it to be a sacrament and take the form of a contract.
The same personal laws, which are typically codified, apply to the dissolution
of such marriages as well. Subsequently, we can understand the fact that
attaining a divorce purely on the basis of a marital ground or on the legalised
"fault-based theory" grounds involves large amounts of both mental
and physical suffering because it subjects both parties to harassment and
disgrace in addition to being time-consuming and nerve-wracking. The main
argument against "irretrievable breakdown of marriage" as a separate
ground for divorce is that it is "divorce by mutual consent" under
the Hindu Marriage Act, 1955 primarily covers certain relevant territory, as
well as adding the earlier ground will only result in complicating the system
for the courts and the parties filing the lawsuit.
9.2 Christian Personal Laws:
The
Indian Divorce Act, 1869 regulates the rules and procedures
with regards to divorce under the Christian Religion along with other marriage
provisions. This
Act holds validity and is applicable when one of the parties to the marriage is
Christian by religion.
The 15th Law Commission
Report suggested for reorganisation of the Divorce Act and further in the 22nd
Report it was concluded that the marriages that have been demolished to such an
extent that reconciliation is not possible under any circumstance, such are
still deprived of a reinforcement.
Wherein it was stated that Divorce
indeed must always be a last resort but in certain situations it turns out to
be a necessity wherein it becomes impossible for the parties to live under one
roof with mutual love and respect and thus it is for the betterment to allow
them to be separate and not compel them to reside under one roof surrounding
with hatred and animosity. Moreover, it has become an essential aspect to
include the ground of “irretrievable breakdown of marriage.”
9.3 Muslim Personal Laws:
The concept of Divorce under Muslim
Law has evolved through various interpretations of the provisions and statutes
of Muslim Law along with the Judicial precedents being of great significance.
Since, for a long period of time Divorce under Muslim Law was not granted
merely on the ground that there was huge level of hatred among the spouses and
that of such an extent that they cannot live together.
However, in “Noor Bibi v. Pir Bux[2]”, an
effort was made to grant divorce on the ground of irretrievable breakdown of
marriage. This time the court allowed Divorce.”
9.4 Parsi Personal Laws:
The Parsi Marriage & Divorce Act,
1936 regulates the
rules and procedures with regards to divorce along with other marriage
provisions. Parsis have their own distinct personal law, practising Zoroastrian
religion, who have diverse beliefs from the Hindus, Muslims, Christians of
India.
10.
Conclusion:
The idea of "irretrievable
breakdown marriage" as a different premise for the marital relationship
was subject to a great deal of discussion regarding both benefits and
drawbacks, but it ultimately had to be dropped due to persistently strong
opposition. However, "mutual consent" as a basis for divorce has already
been incorporated into a number of personal laws to provide the parties who
have been wronged with some swift recourse.
Overall to conclude, Irretrievable
breakdown did not eventually become official law, but it did gain tacit
acceptance as a basis cited in numerous divorce court rulings.
The Law Commission once again
proposed that irretrievable breakdown be added to the list of reasons for
divorce in its 217th Law Commission of India Report, which was issued in March
2009. The Law Commission took up the issue again as a Suo motu subject.
The point that needs to be taken into
account in this situation is that it is quite unreasonable for the law to
ignore the marriage's irretrievable breakup, which is detrimental to both the
interests of the parties and society as a whole.
Due to the judiciary's firm stance on
the necessity of including "irretrievable breakdown of marriage" as a
separate ground for divorce, this led to the ability to provide justice in
certain cases over time; however, the main gap still exists as a result of the
absence of adequate laws on the subject.
Therefore, it is therefore imperative
to examine, alter, and implement the Special Marriage Act of 1954 and the Hindu
Marriage Act of 1955 so that the "irretrievable collapse of marriage"
is one of the justifications for breaking the couple's marriage.
Article Information
IRRETRIVABLE BREAKDOWN OF MARRIAGE THEORY & ITS RELEVANCE IN INDIAN PERSONAL LAWS
Authors: MANAVI MISHRA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/28
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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