Marriage Laws (Amendment) Bill, 2010-Irretrievable breakdown of marriage: Ground for divorce.

Introduction:

Marriage forms the very foundation of social organisation. The Hindu Marriage Act actually regards marriage as a sacrament which is eternal in its being. Without the basis of this institution of marriage, the society cannot exist and will hence, have no civilization.

The foundation of a sound marriage is tolerance, adjustment and respect for one another. Tolerance towards each other’s fault, to a certain bearable extent, has to be inherent in every marriage. Petty quibbles and trifling differences should not be exaggerated or magnified to destroy what is said to have been made in heaven.

‘Divorce’ is the “Dissolution of a valid marriage in law”. Once a divorce is granted, the parties are free from any kind of obligation, legal or otherwise, towards the other party. As per the Hindu law dating back to the latter part of 19^th century, divorce, per se, was not recognised as a means to put an end to the marriage, which was always considered to be of sacred nature.

The Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, at present, has existing grounds of divorce, as mentioned in sections 13 and 27 respectively. In addition to those grounds, and keeping at par with the changing times, several amendments were made in both acts. Section 13-B[1] of Hindu Marriage Act and Section 28 of the Special Marriage Act; have through these amendments, provided for divorce by mutual consent as a ground for presenting petition for dissolution of marriage.

Summary of provisions of the Amendment Bill:

It has been observed lately, that the above mentioned grounds have proved to be insufficient. What has to be noted, is that, neither party is at fault and that the marriage simply could not be worked out. Also, parties file the petition for divorce by mutual consent, and then one of the parties abstains himself/herself from attending the court proceedings diligently or wilfully  avoids being present in the court, thereby causing inconvenience and harassment to the party who is in dire need of divorce and thus keeps the divorce proceedings inconclusive for a long time.  

Hence, The Law Commission in its 71^st Report titled “The Marriage Laws (Amendment) Bill, 2010, Irretrievable Breakdown of Marriage: Ground for Divorce” has been proposed, which has taken a serious note of the above concerns and has made efforts to provide safeguard to parties in cases of a deadlock, by providing for amendment in sections 13, by adding sections 13C, 13D and 13E of Hindu Marriage Act and amending Section 28 of Special Marriage Act.

The Marriage Laws (Amendment) Bill was approved by the Union Cabinet chaired by Prime minister, Manmohan Singh. This amendment Bill has been prepared on the recommendations of the Law Commission as well as the Supreme Court, after examining various legislations along with previous judgments, and has expressed its view that, “Irretrievable Breakdown of Marriage” should be incorporated as a ground for divorce. 

The main objective of the bill is to further amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. The summary of the sections to be inserted is as under:

Section13-C:

Sub-section (1): It lays down that the petition for dissolution of marriage has to be presented to the District Court.

Such petition may be made by either party, irrespective of the fact that whether the marriage was solemnized before or after the commencement of Marriage Law (Amendment) Bill of 2010.

Sub-section (2): It specifies that the court shall not hold any marriage to have broken down irretrievably, unless it is specified that the parties to the marriage have lived apart, at least for a period of not less than 3 years immediately preceding the presentation of the said petition.

Sub-section (3): If the court is satisfied of the fulfilment of all conditions as required in the sub-section above, then, provided the court is further satisfied of all the evidence of the marriage having actually broken down irretrievably, only then will the courts grant a decree of divorce.

Sub-section (4): It furthers the condition of the time period requirement of living apart, which has been specified to be 3 years. Specifications are also made as to whether, such living apart, needs to be continuous.

Sub-section (5): It further specifies what “living apart” actually means in context of granting a decree of divorce based on this ground. It states that, a husband and wife shall be treated as living apart, unless they are living together in the same household.

Section 13-D:

The proposed insertion of this section has invited a lot of controversy. It makes provisions for safeguarding the wife alone, and hence appears to be gender biased. It puts forth that, in all the cases where the wife is the respondent, a special right is granted to the wife to oppose the divorce petition on the ground of “considerable hardship” if the decree is granted.

Once, if the wife has opposed the said petition on the above grounds, then it would be the courts duty to consider and examine all the facts and circumstances of the case, which would necessarily include taking into consideration:

1)The conduct of the parties towards each other,

2) Interests of the parties concerned,

3)Responsibility and custody of the children (if any),

4) Interests of other persons who might get affected by any effective change in the relationship of the parties in question.

Section 13-E:

It states that the court, shall not grant the decree of divorce until and unless, adequate provisions for maintenance of children born out of the marriage are made, keeping in mind the financial soundness of the parties to the marriage.

The explanation to this section provides for the meaning of the expression ‘children’. Children would mean either:

1)Minor children,

2)Unmarried or widowed daughters who are financially incapable of supporting themselves, or

3)Children, who, because of special condition of their physical or mental health, need special care and attention.

History:

The Hindu Marriage Act, 1955, was enacted on 18^th May, 1955, to amend and codify the laws relating to marriages amongst Hindus. Similarly, the Special Marriage Act, 1954, was enacted on 9^th October, 1954 to provide special form of marriage in certain cases.

It would be interesting to note that this demand of making irretrievable breakdown of marriage as a ground of divorce dates back to the 1980s, when the need for introducing this ground was first felt. It becomes pertinent to study the suggestions and contributions of the Law Commission of India.

Law Commission Report:

The Law Commission of India, in its seventy-first report, strongly recommended the introduction of breakdown of marriage as a ground for divorce. According to the Report:

“Restricting the ground of divorce to a particular offence or matrimonial disability...causes injustice in those cases where the situation is such that although none of the party is at fault, or the fault is of such nature that the parties to the marriage cannot be worked”

Accordingly, the Law Commission of India suggested the introduction of breakdown theory also, in addition to the fault grounds, in the divorce law. The report also suggested certain safeguards to check unbridled divorces. Not just the Law Commission, but also the jurists, academicians and the courts have been making a plea for introducing this ground in the matrimonial laws.[2]

In 1981, a Bill was introduced providing for irretrievable breakdown as a ground for dissolution of marriage, but it did not get through as some groups felt that unscrupulous husbands would desert their wives and take advantage of this provision.[3]

This Bill was then furthered to the Lok Sabha for proper consideration, however before the bill could be given a thought by the Lok Sabha, the 7^th Lok Sabha was dissolved on 31^st December 1984, and hence the bill lapsed.

History is the evidence to show that there were innumerable cases when marriage was utterly broken, but in some cases, the courts did stick to the letter of the law, and thus because of being tied by the technicalities of the law, could not give meaningful relief to the parties[4], and yet we can find certain where the courts did grant divorce, through interpretations of the law, in spite of any particular law allowing the same.

Another important cases which has to be noted is that of Kanchan Devi v. Pramod Kumar Mittal, wherein the Supreme Court took recourse of Article 142 of Constitution and dissolved a marriage on the ground that the marriage has irretrievable broken down. In the words of the court: “We in the exercise of our powers under Article 142 of Constitution of India, hereby direct that marriage between the appellant and respondent shall stand dissolved by a decree of divorce, since there appears no hopes of reconciliation in the parties in question”

Objective and Reasoning of the Bill :

The intention of the legislators to bring forth the concept of introduction of the new ground for divorce is aptly evident from the statement of objects and reasons of the Amendment Bill, which reads as under:

“The rights to apply for divorce on the ground that cohabitation has not been resumed for a space of 2 years or more, from date of decree for restitution of conjugal rights, should be available to both, the husband and wife, as in such cases, it is clear that the marriage had proved a complete failure. There is therefore, no justification for tying the parties down to the bond of marriage”[5]

It would prove relevant to glance at the intention of the legislators while they were bringing about earlier amendments while enacting section 13 (1-a) in 1964.

In Madhukar v Saral[6], the Bombay High Court held that the enactment of Section 13a, is a legislative recognition of the principle that in the interest of society, if there has been a breakdown of the marriage; then there is no purpose in keeping the parties tied down to each other. It would not only be injurious to the peace of the society, but also in the future relations of the parties.

Critical Evaluation:

A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are provided concrete instances of human behaviour as bring the institution of marriage into disrepute.

Where marriage has been wrecked beyond the hope of salvage, the public interest would in fact, lie in the recognition of that fact, despite it being true that public interest would actually lie in securing the marital status of the parties as far as possible, the law, by not allowing the grant of decree of divorce, would not serve the sanctity of marriage; on the contrary, it would fail in not giving any regard to the feelings and emotions of the parties. 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 adequate response to the necessities arising there from.

Lately however, the judiciary has been adopting a more liberal and practical approach and several judgments of different courts, prove the fact that they no longer stick to the traditional notion of inviolability of the marital tie. One of the cases relating to irretrievable breakdown of marriage is V. Bhagat D. v/s. Bhagat[7], the apex court observed, irretrievable breakdown of the marriage is not a ground by itself. But while ascertaining the evidence on record to determine whether the ground alleged are made out and in determining the relief to be granted, the said circumstances can certainly be borne in mind.

It would indeed be a matter of serious concern, if both, the law and the courts fail in taking notice of the miseries of the parties, since the long continuous separation itself reflects the irreparable status of relations between the couple, and marriage, subsisting as a formal bond is an empty formality, which ultimately undermines the essence and significance of marriage as a social institution and provides enough scope for unimaginable crimes within four walls of the house!

In case of Dastane v. Dastane,[8] the parties fought for over a decade. Husband’s petition for judicial   separation was dismissed on technical grounds of condonation. The marriage in this case was utterly wrecked. The case makes out a point for irretrievable breakdown of marriage as a separate ground of divorce. It is also a common fact that the young children will be better off with one loving parent rather than two perpetually quarrelling parents.[9]

But again, there are jurists who have a strong opinion against the introduction of a new divorce ground. According to Justice William Scot, in Evan v Evan,[10]  he has opined:

“The general happiness of the married life is secured by its indissolubility. When people understand and accept that they must live together, they learn to soften by mutual co-operation, for necessity is a powerful master in teaching the duties which it imposes”.

Critiques fear that the introduction of this ground will give either spouse, the ‘right’ to dissolve the marriage as and when they wish. Hence the issue of people misusing it cannot be ruled out. It is a principle of natural justice that one should not be allowed to take advantage of his own wrong.

It is said that marriages are made in heaven and broken on earth, and hence appropriate care has to be taken to see that such marriages are not broken easily and how law are enacted for providing dissolution of marriage as per statutory grounds available.[11]

Just as every coin has two sides, the possibility that the insertion of a new ground of divorce will be misused cannot be set aside, but at the same time, there is a need to look at the bigger picture and to protect the interests of the parties suffering, but unable to get divorce because of the technicalities of the law. To prevent a few bad things from happening, the law should not hinder the needs of the larger lot. Also, it can safely be agreed to that, even the legislators, while drafting this amendment bill, must have had anticipated the future effects.

Hence, enough safeguards are put in the bill, to make sure that getting divorce using this ground, would not be a piece of cake for either party. Until and unless the judges are satisfied beyond reasonable doubt that the marriage is literally ‘dead’, and on satisfying the court on the relevant evidence, only then will the decree of divorce be granted.

In the context of the breakdown theory, the recent Supreme Court case in Naveen Kohli v Neelu Kohli,[12] is very significant. The Supreme Court has once again made a strong plea for incorporating irretrievable breakdown of marriage as a ground for divorce. The facts of the case are discussed below:

The husband had filed a petition for divorce on the ground of cruelty making several allegations against his wife; the wife too made similar allegations and also criminal complaints against the husband. In a nutshell, it was a very acrimonious litigation, devoid of sensibility and decency. After being rejected of the grant of divorce twice by the lower courts, the husband filed a S.L.P (Special Leave Petition) u/s 136 of the Constitution of India. The court after analysing in great detail the facts and circumstances of the case, along with various decisions on such attitude of parties amounting to mental cruelty, and also the appropriate law on issue, dissolved the marriage. It held:

 “Once the marriage has broken down beyond repair, it would be unrealistic for the law, not to take notice of the fact, and the forcibly continued marriage would only act as a detriment to the future of the parties involved”.

From the facts of the present case, we can observe that there has been a total disappearance of the emotional substratum in the marriage. It can be observed that, when a marriage has been wrecked beyond the hope of salvage, public interest of all concerned lies in the recognition of the facts and to declare defunct dejure what is already defunct defacto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than dissolution of the marriage bond.

One of the evident loophole in the Amendment Bill, is the insertion of Section 13-D, which gives the right of opposing the petition of Divorce on the proposed new ground exclusively to the females. By making such a straightforward and restricted provision, the legislators have completely ruled out the chances of a male wanting to oppose the divorce petition made by his wife. This provision, hence, appears to be very gender biased.

In the changing times, when women are capable of competing with men at all levels, there are ample case laws wherein the husband is the victim and hence, there is no reason why, the upcoming laws shouldn’t be gender neutral. It is unfortunate that, the law even at this stage has not considered all the permutations and combinations of the litigation cases that may arise in a court of law.

The author feels that, keeping in pace with the changing times, introduction of such new ground is a welcome step, provided no judgment of divorce shall be granted ... until and unless:

1) The economic issues of equitable distribution of marital property, or/and

2) The payment or waiver of spousal support, or/and

3) The payment of child support, or/and

4) The payment of counsel and experts' fees and expenses, or/and

5) The custody and visitation with the infant children of the marriage;

Have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.

Similar view has been held by both, NCW (National Commission for Women) chairperson, Girija Vyas, and noted lawyer Flavia Agnes of Mumbai-based group Majlis, that simultaneous discussion about women’s right to matrimonial property should also go along while proposing the said new ground for divorce. That seems to be the only way to ensure, that safeguards for women are built into the proposed law.

Conclusion:

Therefore, when on one hand, expediency demands that no marriage, which has completely lost its sanctity and fervour, be kept in vegetative existence, nevertheless, the courts need to exercise fairness and caution while dealing with cases regarding grant of divorce based on the ground of irretrievable breakdown of marriage.

It is the public interest in private morality, in marriage as an institution that can be best served by terminating marriages that have failed. The outmoded policy of suspending in limbo, the offending spouse, is the wrong remedy, as far as morality is concerned.

It is the need of the hour, to realise, that, under the changed socio-economic conditions of the society, women have risen to the demands of time and accepted the challenge to become self-reliant. They, no longer want to live at the mercy of their husband. The concept of deriving marital satisfaction and happiness, is gaining acceptance in the society as opposed to the customary practice of the husband and wife being obliged to stay together forever!

Speaking about statutory laws, while explicit existence of the proposed ground, might facilitate the task of a judge, who, today, seeks recourse under other provisions to grant relief in marriages which have miserably failed, yet it’s important for the said ground of divorce, if and when incorporated and implemented, be hedged with sufficient safeguards and applied with, paramount and maximal, discernment and foresight.