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NAVIGATING THE EXIT: EXPLORING LEGAL AND SOCIETAL DIMENSIONS OF IRRETRIEVABLY BROKEN MARRIAGES
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NAVIGATING THE EXIT: EXPLORING
LEGAL AND SOCIETAL DIMENSIONS OF IRRETRIEVABLY BROKEN MARRIAGES
AUTHORED BY - SIMARPREET KAUR
Abstract
This research embarks on an intricate exploration of the evolutionary
trajectory of Hindu marriage, transitioning from its ancient perception of
indissolubility to its contemporary acceptance of divorce. This transformative
journey is propelled by legal reforms initiated through the Hindu Marriage Act
of 1955 and subsequent amendments. Imbued with rich insights, the paper
navigates through four key theories influencing modern Hindu divorce, delving
into the contentious Irretrievable Breakdown Theory, and highlighting the
conspicuous absence of explicit provisions for irretrievable breakdown within
the Hindu Marriage Act.
Within the purview of Article 142(1), the Supreme Court emerges as the
linchpin in cases related to irretrievable breakdown, wielding exclusive
authority. A meticulous analysis of judicial decisions, reports, and critiques
underscores the imperative for legislative intervention, urging the official
recognition of irretrievable breakdown as a bona fide ground for divorce. Navigating
through the intricate terrain of concerns surrounding fault-based divorce laws
and the pragmatic feasibility of acknowledging irretrievable breakdown, the
paper engages in thoughtful discussions on the proposed Marriage Laws
(Amendment) Bill, 2010. A resounding advocacy for legislative amendments echoes
throughout, urging the formal incorporation of irretrievable breakdown as a
recognized ground for divorce. This impassioned recommendation resonates with
the pulse of contemporary societal dynamics, delicately prioritizing individual
well-being within the age-old tapestry of Hindu marriage.
Introduction:
In ancient India, the institution of
Hindu marriage was deeply rooted in the belief of an enduring and timeless
union known as "janam janmatro ka bandhan" – a bond designed to
transcend lifetimes[1]. The
influential perspective of Manu reinforced the notion that spouses were
inseparable, with death being the sole acceptable means of parting ways[2].
However, the introduction of divorce has brought about a significant
transformation in the landscape of Hindu marriage, challenging the traditional
perception of its permanence. In the contemporary era, Hindu marriage no longer
stands as an absolute and indissoluble union, thanks to the codification of
legal provisions related to divorce. The changing societal perspective on
marriage has shifted away from viewing it as an unbreakable bond. This shift is
evident in the substantial liberalization of divorce laws over the years, with
the pivotal Hindu Marriage Act of 1955 initially emphasizing fault-based
grounds for divorce. Subsequent amendments in 1964 and 1976 further advanced
the concept of breakdown and introduced divorce by mutual consent, illustrating
legislative efforts to adapt to evolving societal dynamics[3].
Despite these transformative changes,
the core objective of Hindu marriage remains centered on its preservation
rather than termination. Judicial interventions have emerged as a significant
avenue for resolving matrimonial disputes, with a clear focus on safeguarding
marriages. This research
paper seeks to explore the changing notion of divorce in Hindu law, thoroughly
investigating the concept of irretrievable breakdown as a basis for ending the
marital union. It also seeks to shed light on the contemporary dynamics shaping
divorce based on this breakdown theory within the intricate fabric of Hindu
marriages.
Theories of Divorce:
In modern Hindu Law, divorce is
guided by four main theories, each providing distinct grounds and provisions:
1.
Guilt Theory: This theory revolves around one
spouse being at fault or guilty of committing a matrimonial offense, such as
cruelty or adultery. The innocent party can file for divorce based on the guilt
of the other party. The
Hindu Marriage Act of 1955 initially centered divorce on the fault theory,
outlining nine grounds for divorce in Section 13(1) that either the husband or
wife could use to file for divorce. Additionally, Section 13(2) specified two
fault grounds solely applicable for the wife seeking divorce[4].
2.
Frustration Theory: In accordance with this theory,
divorce functions as a liberation from dissatisfaction caused by elements such
as mental illness, physical illness, religious conversion, withdrawal from
worldly pursuits, or extended periods of absence. Grounds for divorce under
this theory, covered by Subsection 1 of Section 13 but it excludes typical
marital infractions.
3.
Mutual Consent Theory: Under this theory, divorce is
attained through the mutual consent of the couple. The spouses can terminate
their marriage amicably by collaboratively submitting a petition for divorce. The key requirement is the free and
uncompelled consent of both parties. Section 13B of Hindu Marriage Act
addresses divorce through mutual consent. The provision has been inserted through
the Criminal Law Amendment Act of 1976[5]
following the recommendations laid down in 59th Law Commission
Report.
4.
Breakdown Theory: In accordance with Section 13(1A) of
the Hindu Marriage Act of 1955, either party within a marriage has the right to
pursue divorce on the basis of the absence of cohabitation for a duration of
one year or more following a judicial separation decree. Alternatively, divorce
can be sought if there has been no restitution of conjugal rights for a similar
period after a decree for the same[6].
This theory acknowledges the breakdown of the marriage as a valid reason for
divorce.
Irretrievable Breakdown Theory: Historical
Emergence and Status in India
Irretrievable breakdown of marriage
refers to a significant failure in the marital relationship or adverse
circumstances that make it highly unlikely for the spouses to continue living
together as husband and wife, sharing mutual solace and assistance[7].
The emergence of the breakdown
theory in Commonwealth nations can be linked to legal and judicial
modifications that occurred in a preceding era. The concept of the
irretrievable breakdown of marriage was first introduced in New Zealand,
acknowledging that it was unnecessary for one spouse to be at fault in desiring
the termination of a marriage. Consequently, the law should recognize and cater
to this requirement. In 1921, the initial divorce granted on the grounds of the
irretrievable breakdown of marriage occurred in a New Zealand court during the
case of Lodder v. Lodder[8].
The court determined that when marital relations no longer exist, it is not in
the best interests of the parties or the public to legally constrain them in
the roles of husband and wife[9].
In England, the breakdown
concept became prominent through the Masarati v. Masarati[10]
case, and the 1943 House of Lords decision in Blunt v. Blunt[11]
further solidified the acceptance that there was no public interest in
maintaining a legally active marriage that had genuinely broken down. The Matrimonial Causes Act of 1959 in
the Commonwealth of Australia permitted divorce on the grounds of marriage
breakdown[12]. In
India, despite suggestions from the Law Commission and numerous Supreme Court
decisions endorsing the incorporation of marriage breakdown as a valid reason
for divorce, it has not been formally acknowledged to date. The Hindu Marriage
Act, even following its 1976 amendment, does not explicitly incorporate
provisions addressing the irretrievable breakdown of marriage. Although certain
amendments introduced in 1976 (specifically, two clauses of Section 13 (1A))
may indirectly acknowledge this concept as a pertinent consideration, the Act
does not contain a distinct provision expressly permitting divorce on the
grounds of irretrievable breakdown of marriage.
Power to grant Divorce Based on Irretrievable
Breakdown of Marriage:
According to Article 142(1) of the
Indian Constitution, the Supreme Court has the competence and jurisdiction to
issue divorces based only on the irretrievable breakdown of the marriage.
Article 142 explicitly grants the Supreme Court this unique prerogative and
gives the Court the authority to issue any necessary orders to guarantee full
justice in a given case[13]. This
interpretation was affirmed by the Supreme Court itself in the cases of Anil
Kumar Jain v. Maya Jain[14]
and Manish
Goel v. Rohini Goel[15].
Further, in the case of Shilpa
Sailesh v. Varun Sreenivasan[16], The
court underscored the importance of adhering to the established procedure and
disallowed parties from circumventing it by resorting to the writ jurisdiction
under Article 32 or 226 of the Constitution of India. This restriction is in
place because the remedy under Article 32 is specifically crafted for enforcing
the rights enumerated in Part III of the Constitution and can only be pursued
upon establishing a violation of those rights. Consequently, it is not
permissible for a party to initiate a writ petition under Article 32 before the
Supreme Court, seeking a direct remedy for marriage dissolution.
It is crucial to underscore that the
exclusive authority to grant divorce based on the irretrievable breakdown of
marriage lies solely with the Supreme Court of India under Article 142 of the
Constitution. While some argue that the inclusion of Section 13(1A) in the
Hindu Marriage Act, 1955, in 1964, marks a modest stride towards acknowledging
the concept of irretrievable breakdown of marriage, it is important to
emphasize that this provision does not formally recognize irretrievable
breakdown as an independent ground for divorce. Rather, its significance
emerges only after the issuance of decrees for judicial separation and
restitution of conjugal rights, rendering this provision relevant in those
specific circumstances.
Judicial Decisions advocating for insertion of
Irretrievable Breakdown Theory as a Ground for Divorce
In the case of Naveen Kohli v. Neelu Kohli[17],
The Supreme Court recommended to the Union of India a careful consideration of
amending the Hindu Marriage Act, 1955, to incorporate the notion of
irretrievable breakdown of marriage as a legitimate ground for divorce. In the
case of Kanchan Devi v. Pramod Kumar Mittal[18],
The Supreme Court declared that the marital bond between the husband and wife
had suffered irreparable damage, justifying a divorce on the basis of
irretrievable breakdown. The Court emphasized the importance of contemplating
the inclusion of irretrievable breakdown of marriage and mutual consent as
valid grounds for divorce in all instances. It recommended legislative action,
underscoring the pressing need for a consistent civil code overseeing marriage
and divorce. The Court urged the legislature to enact laws that could provide a
remedy for couples undergoing challenging circumstances akin to those in the
specific case. In Samar Ghose v. Jaya Ghose[19],
divorce was granted due to the parties living separately since 1990, with no
emotional connection left. In Naveen Kohli’s[20]
case, Supreme Court held that in a divorce
case centered on marital breakdown, the examination should cover the following
inquiries:-
a) Is the
marriage irreparably damaged?
b) If it is,
is there a realistic chance of reconciliation?
c) In the
absence of a breakdown, are there any public policy considerations,
encompassing justice for both parties and the welfare of the children that
argue against dissolving the marriage?
d) In case of
a breakdown, what suitable arrangements should be put in place for the
individuals involved, including the parties and the child[21]?
Criticism of the Ground:
The endorsement of divorce based on
the grounds of irretrievable breakdown of marriage has encountered noteworthy
criticism, particularly from Justice Markandey Katju in the case of Vishnu
Dutt Sharma v. Manju Sharma[22].
This particular instance involved a two-judge bench facing censure for granting
divorce on a non-statutory basis, suggesting an encroachment into legislative
functions. Despite this criticism, the Neelu Kohli judgment, delivered by a
larger three-judge bench, continues to uphold a comprehensive perspective on
irretrievable breakdown of marriage.
The Ministry of Education, Government
of India, Department of Social Welfare argues that incorporating irretrievable
breakdown as a divorce ground is superfluous. They assert that the Hindu
Marriage Act and the Marriage Laws Amendment Act, 1976, already encompass ample
grounds for seeking divorce[23].
In the context of the Indian Judicial
System, there exists a prevailing notion that preserving marriages is
preferable for the well-being of children in unhappily married families. This
perspective is frequently used as an argument against divorce, irrespective of
the grounds[24].
However, contrasting opinions suggest that if parents are discontentedly
married, divorce might be in the best interest of the children.
A dissenting view comes from a High
Court Judge who opposes the proposal to amend the Hindu Marriage Act, 1955, to
include irretrievable breakdown as a valid ground for granting divorce. The
judge contends that such an amendment could lead to heightened litigation,
creating more problems than it aims to solve, thereby placing a strain on human
ingenuity[25].
71st Law Commission Report, 1978
The 71st Report of the Law Commission
highlights the drawbacks of divorce laws based on fault, stressing the adverse
effects on the institution of marriage due to the requirement of proving guilt.
The report criticizes the current system for exposing private and unpleasant
aspects of married life in court. It advocates for a shift away from the
traditional approach, recommending the adoption of grounds for divorce based on
marriage breakdown to mitigate the contentious and public nature of fault-based
cases[26].
The report deals with criticisms of
the irretrievable breakdown theory, specifically addressing reservations about
spouses having the ability to terminate the marriage at their discretion and
the perceived inconsistency with the principle of not benefiting from one's own
wrongdoing[27]. While
acknowledging these concerns, the report asserts that legislative safeguards
can effectively mitigate them. The report refers to the Hindu Marriage Act, pointing to Section 13(1A)
as an instance where there has not been strict adherence to the principle of
refraining from benefiting from one's own wrongdoing[28].This
establishes a precedent for permitting divorce even when one party is at fault.
Underscoring the importance of acknowledging a marriage that has suffered
irreparable damage, the report considers it impractical and potentially
detrimental to society to uphold the legal tie when the emotional connection
has diminished.[29]. The
report underscores the necessity of implementing safeguards to address
objections and concerns related to this concept.
217th Law Commission Report, 2009
The report recognizes the pragmatic
reality that when a marriage is irreparably damaged, it is impractical for the
law to overlook this circumstance. Insisting on preserving a legal bond in
situations where the marriage has essentially become a facade fails to uphold
the sanctity of marriage and demonstrates minimal regard for the emotions of
the parties involved. Although
the irretrievable breakdown of marriage is not the exclusive reason for
divorce, the factors that contribute to this breakdown can be taken into
account when evaluating the grounds for divorce. It is emphasized that divorce
cannot be awarded solely on the grounds of irretrievable breakdown if the party
seeking it is responsible for the breakdown[30].The
divorce decree based on irretrievable breakdown applies in cases where both
parties have made accusations against each other to such an extent that the
marriage appears practically lifeless, rendering cohabitation unfeasible.
The report underscores the
importance of the court exercising its power judiciously when awarding divorce
on the basis of irretrievable breakdown. It advises thorough consideration and
caution, asserting that such decisions should be rendered only in exceptional
circumstances and with the utmost regard for the best interests of both parties.
The report suggested
expeditious actions to modify both the Hindu Marriage Act, 1955, and the
Special Marriage Act, 1954, by incorporating 'irretrievable breakdown of
marriage' as an extra ground for the grant of divorce[31].
The Marriage Laws (Amendment) Bill, 2010
The Marriage Laws (Amendment) Bill,
2010, introduced in the Lok Sabha on August 4, 2010, by the Minister of Law and
Justice, Shri M. Veerappa Moily, underwent examination by the Standing
Committee on Personnel, Public Grievances, Law, and Justice. The Committee was
assigned to present its findings by January 31, 2011[32]. The
suggested amendment to both the Hindu Marriage Act, 1955, and the Special
Marriage Act, 1954, incorporates the provision for divorce based on the
irretrievable breakdown of marriage. To initiate such a petition, both parties
must have resided separately for a minimum of three years. Significantly, the Bill provides the
wife with the privilege to challenge the divorce if she can prove that it would
lead to considerable financial adversity[33].In
determining whether to approve a divorce, the court is required to take into
account multiple factors, such as the behavior of the parties and the
well-being of the children. Moreover, the court must guarantee sufficient
financial arrangements for any children, including unmarried or widowed
daughters[34]. Despite receiving approval from the Rajya
Sabha on August 26, 2013, unfortunately, the bill was not discussed in the Lok
Sabha.
Recommendations and Suggestions:
Therefore, it is strongly recommended
that immediate steps be taken to amend both the Hindu Marriage Act, 1955, and
the Special Marriage Act, 1954, to include 'irretrievable breakdown of
marriage' as an additional and recognized ground for granting divorce. The
suggested amendment should explicitly state that, before issuing a divorce
decree grounded in irretrievable breakdown, the court must carefully evaluate
whether satisfactory financial arrangements have been made for the welfare of
both the individuals concerned and any dependent children.
The evolving demands of contemporary
society, culture, and values, all of which contribute to the irreversible
disintegration of marriages make this change necessary. This assessment needs
to take into account a number of factors, including a person's sensitivity,
psychological and emotional wellness, conformity to social standards and
principles, the general significance and sanctity of marriage for the
individual as well as the community, and the critical preservation of the
parties' respect and value, even in the face of marital discord. Therefore,
there is a strong case to be made for the legislative body to fully accept
irretrievable marital disintegration as a valid and justified basis for divorce
in order to keep up with the evolving expectations of society and personal
welfare.
Conclusion:
The examination of the Irretrievable
Breakdown of Marriage as a basis for divorce in India illuminates the profound
transformation from the ancient belief in the indissolubility of marriage to
the contemporary acceptance of divorce. The legal evolution instigated by the
Hindu Marriage Act of 1955 signifies a departure from traditional permanence
towards a more adaptive framework. A scrutiny of the Irretrievable Breakdown
Theory reveals the absence of explicit provisions in the Hindu Marriage Act,
despite judicial support. The exclusive authority bestowed upon the Supreme
Court under Article 142(1) to grant divorce based on irretrievable breakdown is
of paramount importance. Decisions by the judiciary, reports, and the proposed
Marriage Laws (Amendment) Bill, 2010, underscore the legislative imperative to officially
acknowledge irretrievable breakdown. Recognizing irretrievable marriage
breakdown as a valid ground for divorce is deemed essential in harmonizing
legal frameworks with the dynamic nature of relationships and the evolving
values of modern society.
Bibliography
Articles:
Ashisht
Jain “Irretrievable Breakdown of Marriage” 2(2) International Journal of Legal Science
and Innovation 165-172
(2020).
Navneet
Kaur Chahal and Nasrullah Rezaie,"Irretrievable Breakdown of
Marriage" 10(3)
International Journal of
Creative Research Thoughts c112 (2022).
Rishika
Agarwal," MARRIAGE LAWS WITH RESPECT TO MANUSMRITI" 9(5)
International Journal of
Creative Research Thoughts a876 (2021).
Books:
Paras Diwan, Hindu law 563
(Allahabad Law Agency, 2nd edition, 2005).
Reports
Referred:
Law
Commission of India, “71st Report on The Hindu Marriage Act, 1955-
Irretrievable
Breakdown
of Marriage as a ground for divorce” (April 1978).
Law
Commission of India, “Irretrievable Breakdown of Marriage – Another Ground for
Divorce
Report No. 217” (March, 2009).
Statutes:
The Constitution of India
The Criminal Law
Amendment Act, 1976 (Act 25 of 1976).
The Hindu Marriage Act,
1955 (Act 25 of 1955).
The Marriage Laws
(Amendment) Bill, 2010 (Bill No. 41 of 2010).
The Matrimonial Causes
Act, 1959 (Act 104 of 1959).
Websites
Referred:
The Marriage Laws
(Amendment) Bill, 2010, PRS Legislative
Research, available at: https://prsindia.org/billtrack/the-marriage-laws-amendment-bill-2010
(last visited on January 20, 2023).
[1] Navneet Kaur Chahal and Nasrullah
Rezaie,"Irretrievable Breakdown of Marriage" 10(3) International Journal of Creative Research
Thoughts c112 (2022).
[2] Rishika Agarwal," MARRIAGE
LAWS WITH RESPECT TO
MANUSMRITI"
9(5) International Journal of Creative Research Thoughts a876 (2021).
[3] Law Commission of India, “71st
Report on The Hindu Marriage Act, 1955- Irretrievable Breakdown of Marriage as
a ground for divorce” (April 1978).
[4] The Hindu Marriage Act, 1955 (Act
25 of 1955), s.13.
[5] The Criminal Law Amendment Act,
1976 (Act 25 of 1976).
[6] The Hindu Marriage Act, 1955 (Act
25 of 1955), s.13 (1A).
[7] Paras Diwan, Hindu law 563 (Allahabad Law Agency, 2nd edition, 2005).
[8] (1921) New Zealand Law Reports
876.
[10] 1969(1) WLR 392.
[11] Blunt v. Blunt, 198 Okla. 138, 176 P.2d 471 (Okla. 1947).
[12] The Matrimonial Causes Act, 1959
(Act 104 of 1959).
[13] The Constitution of India,
art.142.
[14] (2009) 10 SCC 415.
[15] (2010) 4 SCC 393.
[16] 2023 SCC OnLine SC 544.
[17] AIR 2006 SC 1675
[18] AIR 1996 SC 3192
[19] (2007) 4 SCC 511
[20] Naveen Kohli v. Neetu Kohli, AIR 2006 SC 1675
[21] Ibid
[22] (2009) 6 SCC 379
[23] Supra note 3 at 14-20.
[24] Ashisht Jain “Irretrievable
Breakdown of Marriage” 2(2) International
Journal of Legal Science and Innovation 165-172 (2020).
[25] Supra note 3 at 14-20.
[26] Supra note 3 at 14, 15.
[27] Supra note 3 at 15.
[28] Supra note 3 at 16.
[29] Supra note 3 at 16.
[30] Law Commission of India,
“Irretrievable Breakdown of Marriage – Another Ground for Divorce Report No.
217” at 13,14 (March, 2009).
[31] Ibid at 23
[32] The Marriage Laws (Amendment)
Bill, 2010, PRS Legislative Research, available at: https://prsindia.org/billtrack/the-marriage-laws-amendment-bill-2010 (last visited on January 20,
2023).
[33] The Marriage Laws (Amendment)
Bill, 2010 (Bill No. 41 of 2010).
[34] Ibid.
Article Information
NAVIGATING THE EXIT: EXPLORING LEGAL AND SOCIETAL DIMENSIONS OF IRRETRIEVABLY BROKEN MARRIAGES
Authors: SIMARPREET KAUR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/25
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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