RAISE YOUR VOICE TO CHANGE THE DIVORCE LAW

DIVORCE LAW AMENDMENT AS PER LAW COMMISSION’S RECOMMENDATION IN 2009 – NOT YET DONE Another case of: - JUSTICE DENAIED when JUSTICE DELAYED Groom: Aged about 40yrs, Bride: 41 yrs, Son: Aged about 12yrs PAST On or about 1984, I, at the age of 15 years proposed to a 16-year girl – and the story began. I forgot that I lost my father at the age of 11 years, had a sister aged 6 years and my widow mother. I had lots of responsibilities to carry out as the only son of my beloved father. In a romantic mood, I forgot the difference in financial status of the two families. The story could have been entirely different if the girl would have refused me then and there, but she accepted me. But her family was “matured” and they opposed it in every possible way. I had my first big exam (10+) just at door. In spite of broken heart I tried my best and got 70% in the exam. Thereafter I could realise the real state of affairs, as the girl became totally silent. But I wanted to meet the girl at least once and finally found her in July 1988, in her college, 15 km away from her home. In between, the girl never informed me about her whereabouts. Again on that day the girl agreed to “CARRY ON” the romance for the time being. In 1994, myself got married after lots of inside drama from her family. Her father could never accept me “from heart” as an eligible husband of his daughter and he did a “FAVOUR” to us; by managing to get a job for her, in a school 65 km away from her inlaw’s house, just a month before the said marriage. Meantime I managed to make a house with the proceeds received from LIC, obtained after my father’s death. At that time, I was looking after the “small” business left by my father. But her father could never rely on my financial condition and his daughter continued with the service by ferrying daily up and down 130 km. She used to stay very often at her father’s house (close to workplace). She conceived in 1995, but had a miscarriage, and she had two more miscarriages after that in two consecutive years. I lost the joy of being a FATHER and the doctors told specifically that all these miscarriages happened due to her daily strenuous journey. In between, I have decided to take up a job. And my wife finally decided to leave her job, her father also agreed (after some drama again) to the decision. And just after that she became the “proud mother” of our only son. But she could never forgive me for that decision, although she made her own decision always. I started feeling humiliated for the indirect responsibility for the cause of leaving her job. The misunderstanding began and it increased day after day. I concentrated on my job, and obtained recognition from my employer. I was earning enough to carry on my responsibilities. I built up another floor in the house, since my mother had a long desire for that. I performed my last pending duty by getting my sister married in 2006. I started realising slowly, that I am nothing but a moneymaking machine for my wife. Needless to say, in between, the marriage lost all its charm in all way. My wife became a “lady” by then and was reasonably satisfied with her monetary status, and I became a late 30’s gentleman and kept myself satisfied with my job with an understanding that for the sake of my son, we should stay together. But from 2007, she started taunting me even in front of my son. I became mentally broke. My health was broken, started suffering from IBS, BP etc. (diseases from tension and mental unrest) and started thinking about separation and divorce. I had to take sedative regularly. At the same time I was worried about my son’s future. We were sleeping in different rooms from 2008. My wife stopped using Sindoor from 2006. I really wanted to forget all her past begaviours as bad dreams, but I couldn’t. I love my job; it has given me my own identity and before the situation affects my job performance, I wanted to end it. I was in a dilemma till April 2009 (on the death anniversary of my father); when she humiliated me about my parents and myself with some nasty words (“you have some problem in your blood, that’s why I am worried about my son’s future staying with you”). I have finally decided for DIVORCE. Previously, she said many times that she would also prefer the mutual application for Divorce. But this time she disagreed and after discussing with her father, they demanded huge ransom money as “compensation”. She also told me that as divorce is inevitable, one of us should leave the house. I wanted to provide my son at least the same house after separation, which I felt necessary for my son’s upbringing. I shifted to a rented apartment near my place of work in July 2009. She was taking money (whatever needed) from me as usual and delaying the filing process for any separation, keeping the same humiliation process on. I agreed (also paid till date) to pay all necessary expenses for maintenance of my son and wife, including the maintenance for the house where they are still staying with my mother. After all this in 25 years, her father again failed to rely on me. Earlier, I had no money, so they hesitated to get myself married to her. But now, they do not know how much money to claim from me, to spoil me even after Divorce, and that is why they are hesitating to go for a mutual divorce. So I had no other alternative to file the divorce petition in September 2009. I know lots of odds will come from my mother and relatives, as divorce is still considered as a social taboo. Each marriage is between two individual – not between “Ideal Wife” and “Ideal Husband”. I am responsible for my job (doing it last 13 years) as well as my family. I belong to a social class and agree to pay any reasonable maintenance (the only sub clause was recommended as check measure for divorce for Irretrievable Break Down) as decided by the Honourable Court. Contest divorce itself is a very tough decision. Even in my professional life, people are not taking it easily. Still I want to take my own black spots, my failure in the marriage - to the public, at least to the people who matters; cant play hide and seek game anymore. I stopped myself several times; thinking about my son, but he should also better see one parent than parents without love or respect for each other. Perhaps by staying apart both of us can maintain a healthy relation with him. PRESENT [ Lots of incidents happened in between: - In October, I felt sad for my son (but nothing for my wife) and came to my old address. But the “drama” continued. I got seriously depressed after noticing my wife’s behavior. Actually she got much more “CRUEL”, and silently (sometime with abusive language in a very low voice) she started humiliating me. Finally, I went to a psychiatrist. I was suffering from a tremendous depression and trauma for my wife’s behavior. After being checked up by 2 more doctors, I am taking anti-depressant drugs since then. Recently (January, 2009) I got a “fit certificate” from Doctor, but still having medicines. In between, she forced to bring all household goods from my rented apartment and stopped to me sell the same, although some items (like fridge) were duplicated. I really got spellbound noticing her attitude. She forced me to shift to 1st floor leaving my mother on ground floor. On 1st floor we were sleeping in different rooms .Now I am again residing at my rented apartment. ] Now it’s already 5 months gone after my filing. The first date was in Dec 2009. On that day I just got another date. And on the next date also, I shall surely get just “another date.” Is not this the right (if not delayed already) time to address the problem associated with Indian Divorce Act itself? Please note, I am not the 1st to say this, the law commissions already felt this in 1971 and 2009 (reports enclosed). Both “seriously” recommended introducing THE IRRETRIEVABLE BREAK DOWN OF MARRIAGE as another ground for divorce. We have now a “Fault divorce” and mutual divorce. When my partner and me can’t agree on a less affecting thing like “mutual divorce” (which means to break the tie of marriage), how can we STAY TOGETHER in marriage thereafter? All of us know that, staying together (in any form) requires much more agreement between any two people than to stay apart. That means I have to request (or beg or buy) my wife to be free from marriage, just like a sentenced captive from the Jail. Judiciaries indirectly being used as a tool to bargain terms for divorce, in cases like this. Yes, when there is legal battle between couple, who are staying separate over a year, the only motto can be to get a “good bargain” or to harass one spouse by mere noncooperation. My wife now more “ cruel” in behaviour. She is fighting legally with me – that means she don’t have any ‘emotional” dependence on me. When we talk about our “old tradition of marriage” we often forget that, no “traditional” wife will come to court to keep or leave her marriage. I would like to mention another thing. My petition primarily based on “CRUELTY”, as the most suitable “available ground” for divorce. But one has to understand that fairer s*x normally don’t act “cruel” by physical nature. Even in some cases “SILENCE” or “ABSENCE OF CORDIAL NATURE” between husband and wife can be cruelty of severe nature, which happened in my case. And when a person like me, who act as a Manager in a reputed company, files the divorce for wife’s cruelty, it can effect my professional reputation to a great extent. Actually it’s very much humiliating for me to file the petition and fight for that. It’s not explainable to anyone, but one who is in similar condition, can very well understand this. Broken marriage is not a crime and by the recommended amendment, divorce law can address that break with far less complexity. As we all know, nobody or nothing can compel a couple or any two people to live together. Present Divorce Law can delay (and make more bitter) the process of divorce, but can’t really change the direction in this scenario. Can the Judiciary ask me to point out very private part of my life like marriage? Is not this hampering my basic fundamental right as a citizen? When there is no such law for a “father & son” or “mother & son” relation to be in that tie for ever (although maintenance clause is there), why would be such gross disparity in case of marriage? Are later the more “NOBLE” or “MUST ON” relations than the earlier? Is institution of marriage a serious “offense”, which if I have done once, can’t be freed till my death? Is wedlock means deadlock? Now as an effect I have two options – EITHER to stay in my marriage forgetting about my own negative feelings compromising with my health and peace of mind OR To badmouth my son’s mother in the court to prove her fault to get rid of her. In both cases either my wife or I would be sufferer, not the Honurable Judiciary or the legislative body! Won’t the chances of any healthy relation would decrease or diminish just because of amount of tension created between us during the process, as more dates means more blames or more defense (which is also a part of attack mechanism)? Even the child would be indirectly sufferer for the bitterness between the parents as helpless witness of the whole event. Breaking up is a hard decision for anyone, but while doing, why we (in the process itself for its duration & nature) need to be nasty instead of peaceful? If a marriage can be done in a onemonth notice period, why the divorce would be delayed for YEARS? I am referring to some very pertinent cases where Honourable Supreme Court of India understood the gravity of the circumstances and granted the decree of divorce by dissolving the marriage, sometimes even after the lower court’s verdict in an opposite direction. In most of the cases, petition filed against wife’s cruelty. Judiciary understood that delaying the process would only increase bitterness between the couple. Whenever we delay something, it affects. In this scenario its affecting unfortunate people like me. (1) N. G . Dastane Vs S. N. Dastane DATE OF JUDGMENT : 19/03/1975 BENCH: CHANDRACHUD, Y.V. GOSWAMI, P.K. UNTWALIA, N.L. CITATION: 1975 AIR 1534 1975 SCR (3) 967, 1975 SCC(2) 326CITATOR INFO : RF 1988 SC 121 (7,10) (2) SIRAJMOHMEDKHAN JANMOHAMADKHAN HAFIZUNNISA YASINKHAN & ANR DATE OF JUDGMENT14/09/1981 BENCH:FAZALALI, SYED MURTAZA BENCH:FAZALALI, SYED MURTAZA SEN, A.P. (J) CITATION: 1981 AIR 1972 1982 SCR (1) 695 1981 SCC (4) 250 1981 SCALE (3)1400 (3) Shobha Rani Vs Madhukar Reddi DATE OF JUDGMENT12/11/1987 BENCH:SHETTY, K.J. (J), RAY, B.C. (J) CITATION: 1988 AIR 121 1988 SCR (1)1010 1988 SCC (1) 105 JT 1987 (4) 433 1987 SCALE (2)1008 (4) V. Bhagat Vs D. Bhagat DATE OF JUDGMENT 19/11/1993 BENCH: JEEVAN REDDY, B.P. (J), KULDIP SINGH (J) CITATION: 1994 AIR 710, 1994 SCC (1) 337 JT 1993 (6) 428 1993 SCALE (4)488 (5) Romesh Chander Vs Savitri – DATE OF JUDGMENT 13/01/1995 BENCH: SAHAI, R.M. (J), MAJMUDAR S.B. (J) CITATION: 1995 AIR 851 1995 SCC (2) 7 JT 1995 (1) 362 1995 SCALE (1)177 (6) SMT. KANCHAN DEVI Vs. PROMOD KUMAR MITTAL & ANR. DATE OF JUDGMENT:03/04/1996 BENCH:ANAND, A.S. (J) BENCH:ANAND, A.S. (J)FAIZAN UDDIN (J) CITATION:JT 1996 (5) 655 1996 SCALE (3)293 (7) Ashok Hurra Vs Rupa Bipin Zaveri DATE OF JUDGMENT: 10/03/1997 CIVIL APPEAL NO 1835 OF 1997 (8) G.V.N. KAMESWAR RAO Vs G. JABILLI DATE OF JUDGMENT:10/01/2002 CASE NO.:Appeal (civil) 140 of 2002 BENCH: D.P. Mohapatra & K.G. Balakrishnan (9) Praveen Mehta Vs Inderjit Mehta DATE OF JUDGMENT 11/07/2002 CASE NO.: Appeal (civil) 3930 of 2002 (10) A. Jayachandra Vs Aneel Kaur DATE OF JUDGMENT: 02/12/2004 CASE NO.:Appeal (civil) 7763-7764 of 2004 BENCH: RUMA PAL, ARIJIT PASAYAT & C.K.THAKKER (11) Durga Prasanna Tripathy Vs Arundhati Tripathy DATE OF JUDGMENT : 23/08/2005 CASE NO.: Appeal (civil) 5184 of 2005 (12) Vineeta Saxena Vs Pankaj Pandit DATE OF JUDGMENT: 21/03/2006 CASE NO.: Appeal (civil) 1687 of 2006 BENCH: Ruma Pal & Dr. AR. Lakshmanan (13) K R MAHESH Vs MANJULA DATE OF JUDGMENT: 11/07/2006 CASE NO.:Transfer Petition (civil) 947 of 2005 BENCH:ARIJIT PASAYAT & S.H. KAPADIA (14) Kajol Ghosh Vs Sanghamitra Ghosh DATE OF JUDGMENT: 20/11/2006 CASE NO.: Transfer Petition (civil) 228 of 2004 BENCH: G.P. MATHUR & DALVEER BHANDARI (15) Rishikesh Sharma Vs Saroj Sharma DATE OF JUDGMENT 21/11/2006 CASE NO.:Appeal (civil) 5129 of 2006 (16) Sujata Uday Patil Vs Uday Madhukar Patil DATE OF JUDGMENT: 13/12/2006 CASE NO.: Appeal (civil) 5779 of 2006 BENCH: G.P. Mathur & A.K. Mathur (17) Mayadevi Vs Jagdhish Prasad CASE NO.:Appeal (civil) 877 of 2007 DATE OF JUDGMENT: 21/02/2007 BENCH: Dr. ARIJIT PASAYAT & DALVEER BHANDARI (18) Samar Ghosh Vs Jaya Ghosh DATE OF JUDGMENT: 26/03/2007 CASE NO.: Appeal (civil) 151 of 2004BENCH: B.N. Agrawal, P.P. Naolekar & Dalveer Bhandari (19) Satish Sitole Vs Smt Ganga DATE OF JUDGMENT : 10/07/2008 CIVIL APPEAL No. 7567 of 2004 (20) Suman Kapur Vs Sudhir Kapur DATE OF JUDGMENT 07/11/2008 CIVIL APPEAL NO.6582 OF 2008 And Last but not the least, THE LANDMARK JUDGEMENT (21) Naveen Kohli Vs Neelu Kohli Dt DATE OF JUDGMENT 21/03/2006 CASE NO.:Appeal (civil) 812 of 2004 Some Newspaper articles about our present Divorce Law: - “Examining the irretrievable breakdown of marriage as a ground for divorce Ankit Kejriwal, Prayank Nayak Irretrievable breakdown of marriage can be defined as such failure in the matrimonial relationship or such circumstances adverse to that relationship that no reasonable probability remains of the spouses remaining together as husband and wife for mutual comfort and support. It is the situation that occurs in a marriage when one spouse refuses to live with the other and will not work towards reconciliation. When there is not an iota of hope that parties can be reconciled to continue their matrimonial life, the marriage can be considered as Irretrievable Breakdown of marriage. This concept was first introduced in New Zealand. The Divorce and Matrimonial Causes Amendment Act, 1920 included for the first time the provision for separation agreement for three or more years was a ground for making petition to the court for divorce and the court was discretion whether to grant divorce or not. In England, the gate for this theory was opened up in the case of Masarati v. Masarati, where both the parties to the marriage had committed adultery. The court of appeal, on wife’s petition for divorce, observed breakdown of marriage. The law commission of England in its report said, The objectives of good divorce law are two: one to buttress rather than to undermine the stability of marriage and two, when regrettably a marriage has broken down, to enable the empty shell to be destroyed with maximum fairness, and minimum bitterness, humiliation and distress. On the recommendation of the Law commission, Irretrievable Breakdown of Marriage was made the sole ground for divorce under section 1 of the Divorce Law reforms Act, 1973. The Matrimonial Causes Act, 1959 of the Commonwealth of Australia provided for divorce on the grounds of breakdown of marriage. In India, breakdown of marriage is still not ground divorce in spite of the recommendation of the Law Commission and various Supreme Court judgments to include breakdown of marriage as a ground for divorce. This paper examines the need to introduce irretrievable breakdown of marriage as a ground of divorce. Theories of divorce The provisions relating to divorce are contained in Sec 13 of Hindu Marriage Act, 1955. The Act recognizes two theories of Divorce: the fault theory and divorce by mutual consent. Under the fault theory, marriage can be dissolved only when either party to the marriage had committed a matrimonial offence. Under this theory it is necessary to have a guilty and an innocent party and only innocent party can seek the remedy of divorce. However the most striking feature and drawback is that if both parties have been at fault, there is no remedy available. Another theory of divorce is that of mutual consent. The underlying rationale is that since two persons can marry by their free will, they should also be allowed to move out of their relationship of their own free will. However critics of this theory say that this approach will promote immorality as it will lead to hasty divorces and parties would dissolve their marriage even if there were slight incompatibility of temperament. Some of the grounds available under Hindu Marriage Act can be said to be under the theory of frustration by reason of specified circumstances. These include civil death, renouncement of the world etc. In this article we shall see that how these theories, owing to change in social circumstances and change in attitude towards the institution of marriage had failed to provide full justice in matrimonial cases. Judicial opinions The Supreme Court has adopted a literal view and granted divorce under irretrievable breakdown of marriage. In Ashok Hurra v. Rupa Bipin Zaveri, the husband and wife filed a suit for divorce by mutual consent. But, subsequently wife withdrew her consent. So the petition was dismissed by trial court. The Supreme Court held that We are of the view that cumulative effect of various aspects involved in the case indisputably point out that marriage is dead both emotionally and practically, and there is no chance at all of the same being revived and continuation of such relationship is only for name-sake. The Honble Court used Article 142 and granted divorce. The Delhi High Court in its full judge bench decision in Ram Kali v. Gopal Das, took note of modern trend not to insist on maintenance of an union which was broken and said, ‘it would be practical and realist approach, indeed it would be unreasonable and inhumane, to compel the marriage to keep up the facade of marriage even though the rift between them is complete and there are no prospects of their living together as husband and wife’. In the case of Savitri Pandey v. Prem Chandra Pandey, the Supreme Court reiterated the need for the inclusion of irretrievable breakdown of marriage as a ground for divorce. The Supreme Court in Manjula v. K.R. Mahesh held, the marriage has irretrievably broken down and there would be no point in making an effort to bring about conciliation between the parties. In Neetu Kohli v. Naveen Kohli, husband alleged that the wife was quarrelsome and was found in compromising situation with one Biswas Rout. The wife counter alleged that husband had a concubine. This established that the marriage had broken down irreparably and hence granted divorce on grounds of an irretrievable breakdown. It also observed that it was high time that this be included as ground for divorce in the Hindu Marriage Act, 1955. Seventy-first Law Commission Report The 71st Law Commission of India submitted to the Government on 7th April 1978 dealt with the concept of irretrievable breakdown of marriage. This matter was taken by the Law Commission as a result of the reference made by the Government of India in the Ministry of Law, Justice and Company affairs. The Report points out the fact that the fault and the guilt theories of divorce are not sufficient and cause injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the outward manifestations of marriage but the real substance is gone, it’s just like an empty shell. The Report unequivocally asserts that in such circumstances it will be in the interest of justice to dissolve the marriage. It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce; the parties alone can decide whether their mutual relationship provides the fulfillment, which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances. The majority view, which is shared by most jurists, according to the Law Commission Report, is that 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. The law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising there from. By refusing to sever that tie the law in such cases do not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. Other jurisdictions In most developed nations, the irretrievable breakdown of marriage is recognised as a ground for divorce. New Zealand New Zealand was the first country to recognize it, through the Divorce and Matrimonial Causes Amendment Act, 1920 where a separation agreement for three years is a ground for making a divorce petition. AUSTRALIA The Matrimonial Causes Act, 1959 of the commonwealth of Australia provided for divorce on the grounds of breakdown of marriage. The Family Law Act (Australia), 1975 considers irretrievable breakdown as sole ground for divorce. If a marriage breaks down, it can legally be ended by the court granting a Divorce.There is only one ground for divorce in Australia - the fact that the marriage has irretrievably broken down. The legal test of irretrievable breakdown is that you have lived apart for at least twelve months and there is no prospect of reconciliation. As far as the court is concerned, this is all you have to establish. The judge won't be interested in who left whom, or whether one of you is having an affair, or whose 'fault' it was that the relationship broke down. Brazil Presumably due to the influence of the Roman Catholic Church, divorce only became legal in Brazil in 1977. Since January 2007, Brazilian couples can request a divorce at a notary's office when there is a consensus, the couple has been separated for more than a year and have no underage or special-needs children. The divorcees need only to present their national IDs, marriage certificate and pay a small fee to initiate the process, which is completed in two or three weeks. Canada Canada did not have a federal divorce law until 1968. Before that time, the process for getting a divorce varied from province to province. In Newfoundland and Quebec, it was necessary to get a private Act of Parliament in order to end a marriage. Most other provinces incorporated the English Matrimonial Causes Act of 1857 which allowed a husband to get a divorce on the grounds of his wife's adultery and a wife to get one only if she established that her husband committed any of a list of particular s*xual behaviours but not simply adultery. Some provinces had legislation allowing either spouse to get a divorce on the basis of adultery. The federal Divorce Act of 1968 standardized the law of divorce across Canada and introduced the no-fault concept of permanent marriage breakdown as a ground for divorce as well as fault based grounds including adultery, cruelty and desertion. Under the Divorce Act, 1967-68 it (breakdown of marriage) is clearly recognised as a ground for divorce, apart from the normal fault grounds. In Canada, while civil and political rights are in the jurisdiction of the provinces, the Constitution of Canada specifically made marriage and divorce the realm of the federal government. Essentially this means that Canada's divorce law is uniform throughout Canada, even in Quebec, which differs from the other provinces in its use of the civil law as codified in the Civil Code of Quebec as opposed to the common law that is in force in the other provinces and generally interpreted in similar ways throughout the Anglo- Canadian provinces. The Canada Divorce Act recognizes divorce only on the ground of breakdown of the marriage. Breakdown can only be established if one of three grounds hold: adultery, cruelty, and being separated for one year. Most divorces proceed on the basis of the spouses being separated for one year, even if there has been cruelty or adultery. This is because proving cruelty or adultery is expensive and time consuming.[5] The one-year period of separation starts from the time at least one spouse intends to live separate and apart from the other and acts on it. A couple does not need a court order to be separated, since there is no such thing as a "legal separation" in Canada. A couple can even be considered to be "separated" even if they are living in the same dwelling. Either spouse can apply for a divorce in the province in which either the husband or wife has lived for at least one year. On September 13, 2004, the Ontario Court of Appeal declared a portion of the Divorce Act also unconstitutional for excluding same-s*x marriages, which at the time of the decision were recognized in three provinces and one territory. It ordered same-s*x marriages read into that act, permitting the plaintiffs, a lesbian couple, to divorce. France The French Civil code (modified on January 1, 2005), permits divorce for 4 different reasons; mutual consent (which comprises over 60% of all divorces); acceptance; separation of 2 years; and due to the 'fault' of one partner (accounting for most of the other 40%). Sweden To divorce in Sweden the couple can file for divorce together or one party can file alone. If they have children under 16 living at home or one party does not wish to get divorced there is a required contemplation period of 6 to 12 months. During this period they stay married and the request must be confirmed after the waiting period for the divorce to go through.[16] United Kingdom England and Wales In England, on the recommendation of the Law Commission, it was made the sole ground for divorce under section 1 of the Divorce Law reforms Act, 1969. A divorce in England and Wales is only possible for marriages of more than one year and when the marriage has irretrievably broken down. Whilst it is possible to defend a divorce, the vast majority proceed on an undefended basis. A decree of divorce is initially granted 'nisi', i.e. (unless cause is later shown), before it is made 'absolute' From beginning to end, if everything goes smoothly and Court permitting, it takes around 6 months. There is only one 'ground' for divorce under English law. That is that the marriage has irretrievably broken down. There are however five 'facts' that may constitute this ground. They are:  Adultery often now considered the 'nice' divorce. respondents admitting to adultery will not be penalised financially or otherwise.  Unreasonable behaviour (most common ground for divorce today ) the petition must contain a series of allegations proving that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him/her. the allegations may be of a serious nature (eg. abuse or excessive drinking) but may also be mild such as having no common interests or pursuing a separate social life ; the courts won't insist on severe allegations as they adopt a realistic attitude: if one party feels so strongly that a behaviour is "unreasonable" as to issue a divorce petition, it is clear that the marriage has irretrievably broken down and it would be futile to try to prevent the divorce. [4]  Two years separation (if both parties consent) both parties must consent the parties must have lived separate lives for at least two years prior to the presentation of the petition this can occur if the parties live in the same household, but the petitioner would need to make clear in the petition such matters as they ate separately, etc.  Two years desertion Five years separation (if only one party consents) Scotland About one third of marriages in Scotland end in divorce, on average after about thirteen years. Actions for divorce in Scotland may be brought in either the Sheriff Court or the Court of Session. In practice, it is only actions in which unusually large sums of money are in dispute, or with an international element, that are raised in the Court of Session. If, as is usual, there are no contentious issues, it is not necessary to employ a lawyer. Divorce (Scotland) Act 1976. It is likely that the two year separation period required for a no-fault divorce with consent will be reduced to one year. United States Marital Status in the U.S. Divorce in the United States is a matter of state rather than federal law. In recent years, however, more federal legislation has been enacted affecting the rights and responsibilities of divorcing spouses. The laws of the state(s) of residence at the time of divorce govern; all states recognize divorces granted by any other state. All states impose a minimum time of residence. Typically, a county court’s family division judges petitions for dissolution of marriages. Prior to the latter decades of the 20th century, a spouse seeking divorce had to show cause and even then might not be able to obtain a divorce. The no-fault divorce "revolution" began in 1969 in California, and was completed in 1985 (New York is the last holdout ). However, most states require some waiting period, typically a 1 to 2 year separation. Fault grounds, when available, are sometimes still sought. This may be done where it reduces the waiting period otherwise required, or possibly in hopes of affecting decisions related to a divorce, such as child custody, child support, or alimony.” Problems & suggestions However the an attempt to introduce irretrievable breakdown of marriage as a ground for divorce has met with some resistance by women organization on the grounds that husbands would desert their wives and then ask for divorce under breakdown of marriage. Also it has been stated by few that the concept of irretrievable breakdown of marriage is somewhat vague. In answer to first criticism it has to be stated in situation where wife has been deserted it indicates that husband wants to get rid of wife and any continuation of such relationship would not make sense to both the parties to the marriage. However a safety clause can be inserted which would empower the court to refuse divorce if it adversely affects the interests of the children. A provision for maintenance for child and wife should be made. As far as the second objection is concerned, it should be necessary for grant of decree of divorce under this theory that parties had lived separately for reasonably long time say for three years. Living separately can be considered as objective criteria for breakdown of marriage. The concept of marriage is moving from a sacrament to a contract. The spouse should be granted a right to move out of the wedlock if they cannot live together due to extreme situations. Justice Krishna Iyer in the case of Aboobacker v. Mam stated while the stream of life, lived in marital mutuality, may wash away smaller pebbles, what is to happen if intransigent incompatibility of minds break up the flow of stream. Since the social conditions prevailing in the country are peculiar, sufficient changes are needed to be made in the law made so that law is able to ameliorate the conditions of the people who, in absence of required law are craving for relief and hence would be able to make process of dissolution less excruciating. A question may be asked that when irretrievable breakdown of marriage has been recognized as a ground for divorce by judiciary why we need an amendment in legislation. This is so because amendment would lay down conditions and safe guards, which should be taken into consideration before the grant of any decree. It is high time that the Government recognizes the need of the time and save many couples from the disgrace and humiliation by introducing the irretrievable breakdown of marriage as ground for divorce under Section 13 of the Hindu Marriage Act, 1955.” “Divorce law in our country belongs to an era that has long elapsed. But the laws have neither kept pace nor do they take into account the altered socio-economic realities of contemporary India. This is highlighted, once more, by the recent controversy surrounding grounds for divorce following Smriti Shinde's petition to the apex court urging it to consider granting unilateral divorce when a marriage has irretrievably broken down. The Supreme Court itself is ambivalent about where it stands on the matter. Under the Hindu Marriage Act or the Special Marriage Act, there are no provisions that recognise "irretrievable breakdown" or "irreconcilable differences" as grounds for granting divorce when it is not a mutually consensual decision. However, in 2006, the apex court granted divorce in the Naveen Kohli vs Neelu Kohli case, precisely because of irretrievable breakdown of marriage. But, early this year, another SC bench refused to entertain this argument in the Vishnu Dutt Sharma vs Manju Sharma case. It decided to stick to the letter of the law. This is as good a time as any for the laws governing divorce to be updated. In doing so, the issue must not be looked at through a moral prism alone. As Indians interface with the world and are exposed to new ideas and opportunities, there is bound to be a social churn, which impacts on personal affairs like marriage and family relations. Add to this the fact that more women today are economically more independent and assertive of their rights and choices. Divorce must be seen as a social reality, unfortunate though it might be, and not as a social evil. There are of course legitimate concerns that waiving the mutual consent clause to grant divorce in cases of irreparable marital breakdown would put women in a vulnerable position. But that cannot be used as an excuse to deny those who would genuinely benefit from easing the process of obtaining a divorce. As things stand, one has to go through a lengthy, convoluted and extremely stressful procedure to get a divorce. It's time that changed.” “Feelings of two human beings are involved in a couple’s married life. This could not be patched up by enforcement of law by courts. It is up to the individuals to mend themselves. A horse can be taken to water but it is the horse that should drink it. However, the law should not deny divorce if the marriage has really broken down. By forcing unity with a hammer in the hand, the law does not serve the sanctity attached to the institution of marriage by religions. If the relationship of husband and wife wrecks beyond repair, what is wrong in recognizing that fact and allow them to live separately. How can one compel a wife or a husband to continue to live with spouse if they have fallen apart? If so compelled they would have to lead miserable life.” Forget everything else, just imagine a scenario in a bedroom of a couple where a Judge is sitting and deciding about the “cruelty” performed or not among the couple. It must be sounding ridiculous and to avoid such embarrassment, Law Commission suggested the amendment in the divorce law itself through recent Report (Report no 217, November 2008): - III.RECOMMENDATION 3.1 It is, therefore, suggested that immediate action be taken to introduce an amendment in the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 for inclusion of ‘irretrievable breakdown of marriage’ as another ground for grant of divorce. 3.2 The amendment may also provide that the court before granting a decree for divorce on the ground that the marriage has irretrievably broken down should also examine whether adequate financial arrangements have been made for the parties and children I like to highlight some facts in countries, where NO- FAULT (effectively faster & peaceful) divorce exists: -  A decline in the rates of domestic violence (which is obviously of a very high concern in India)  These laws empower a man or woman in an “abusive marriage” and make it easier to leave and live separate  Means less conflict during divorce, which means less emotional harm to children whose parents, are divorcing (very much valid in my case)  Shortens the length of time it takes to obtain a divorce, which, in turn, shortens the amount of time spent in a stressful situation causing physical and mental damage to involved party (as in my case, I am having anti depression drugs as prescribed)  Financial settlements are based on need, ability to pay and contribution to the family finances, rather than on fault (I am ready to accept any reasonable amount decided by judiciary)  Helps reduce the heavy caseloads of family courts (obviously valid for India) Our legislation is hesitating to amend the law. Nobody wants to disturb the “STATUS CO”. Its human nature to resist any kind of change. A Surgery is done only when that is needed, to avoid some greater pain or loss. If we remember, we in India had customs like “SOTI DAHO PROTHA” (burning the widow with dead husband), which now we can’t even imagine. As we are getting exposed to the world, we have to ratinolise our thought process and laws, by improvising any outdated system or rule. Staying apart for a considerable period itself points towards the death of the marriage, “Divorce” is just the legal nomenclature of that unfortunate incident. No divorce or even cause of any divorce will initiate because of the said amendment, but surely it will decrease the suffering of couple whose divorce already initiated. This amendment is only an addition to the grounds of divorce; no way it can hamper the relationship between a married couple. Mr Moily, honourable law minister of India stated recently :- ‘Moily said that the government may consider an amendment in the law to make disposal of divorce and custody cases time-bound, as has been done for gram nyayalayas. He said that family courts will be given a target of winding up such cases -- where mutual consent is absent -- within a year of them being filed. He believes litigating couples should be freed quickly from a broken marriage in order to start life afresh. "There is no need for divorce cases to drag on for years when the marriage has actually broken down. Similarly,children's custody cases must be decided in a time-bound manner so that there is no uncertainty over their future," Moily said.’ I APPEAL AND PRAY TO ALL :- RAISE VOICES IN FAVOUR OF THE DIVORCE LAW AMENDMENT At the end we all must remember- LAW IS MADE BY THE PEOPLE LAW IS MADE FOR THE PEOPLE https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 23 CASE NO.: Appeal (civil) 812 of 2004 PETITIONER: Naveen Kohli RESPONDENT: Neelu Kohli DATE OF JUDGMENT: 21/03/2006 BENCH: B.N. AGRAWAL,A.K. MATHUR & DALVEER BHANDARI JUDGMENT: J U D G M E N T Dalveer Bhandari, J This appeal is directed against the judgment of the Allahabad High Court dated 07.07.2003 passed by the Division Bench in First Appeal No.323 of 2003. The appellant and the respondent are husband and wife. The appellant has filed a petition under the Hindu Marriage Act, 1955 for divorce. The Family Court after comprehensively dealing with the matter ordered cancellation of marriage between the parties under Section 13 of the Hindu Marriage Act which was solemnized on 20.11.1975 and directed the appellant to pay Rs.5 lacs as her livelihood allowance. The appellant deposited the amount as directed. The respondent aggrieved by the said judgment preferred First Appeal before the Division Bench of the Allahabad High Court. After hearing the parties the appeal was allowed and the decree passed by the Family Court, Kanpur City seeking divorce and annulment of the marriage was dismissed. The appellant aggrieved by the said judgment of the High Court had preferred special leave petition under Article 136 of the Constitution of India. This Court granted special leave to appeal to the appellant. Brief facts which are necessary to dispose of this appeal are recapitulated. The appellant, Naveen Kohli got married to Neelu Kohli on 20.11.1975. Three sons were born out of the wedlock of the parties. The appellant constructed three factories with the intention of providing a separate factory for his three sons. He also constructed bungalow no.7/36 A for their residence. The parties got all their three sons admitted and educated in a public school in Nanital. According to the appellant, the respondent is bad tempered and a woman of rude behaviour. After marriage, she started quarrelling and misbehaving with the appellant and his parents and ultimately, the appellant was compelled to leave the parental residence and started to reside in a rented premises from May 1994. According to the version of the appellant, the respondent in collusion with her parents got sufficient https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 23 business and property transferred in her name. The appellant alleged that in the month of May 1994, when he along with the respondent and their children visited Bombay to attend the golden jubilee marriage anniversary of his father-in-law, he noticed that the respondent was indulging in an indecent manner and found her in a compromising position with one Biswas Rout. Immediately thereafter, the appellant started living separately from the respondent since May 1994. The appellant suffered intense physical and mental torture. According to the appellant, the respondent had withdrawn Rs.9,50,000/- from the Bank Account of the appellant and deposited the same in her account. The appellant alleged that the respondent got a false first information report registered against him under Sections 420/467/468 and 471 IPC which was registered as Case No.156 of 1995. According to him, the respondent again got a case under Sections 323/324 I.P.C. registered in the police station Panki, Kanpur City and efforts were made to get the appellant arrested. The appellant filed a Civil Suit No. 1158/1996 against the respondent. It was also reported that the appellant was manhandled at the behest of the respondent and an FIR No.156 of 1996 was filed by the eldest son at the behest of the respondent against the appellant in police station, Panki complaining that the appellant had physically beaten her son, Nitin Kohli. The respondent in her statement before the Trial Court had mentioned that she had filed an FIR against the appellant under Section 420/468 IPC at the Police Station, Kotwali and the respondent had gone to the extent of filing a caveat in the High Court in respect of the said criminal case so that the appellant may not obtain an order from the High Court against her filing the said FIR. In the same statement, the respondent had admitted that she had filed an FIR No.100/96 at the Police Station, Kohna under Section 379/323 IPC against the appellant. The respondent had also filed a complaint against the appellant and his mother under Sections 498A/323/504/506 IPC at Police Station, Kohna. The respondent in her statement had admitted that she had opposed the bail of the appellant in the criminal case filed at the Police Station, Kotwali on the basis of legal advice. In that very statement she further admitted that after the police had filed final report in both the criminal cases relating to Police Station, Kotwali and Police Station, Kohna, she had filed protest petition in those cases. This clearly demonstrates the respondent’s deep and intense feeling of revenge. The respondent in her statement had also admitted that she had filed a complaint in the Women Cell, Delhi in September 1997. According to the appellant, the respondent had filed a complaint no.125 of 1998 against the appellant’s lawyer https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 23 and friend alleging criminal intimidation which was found to be false. According to the appellant, the respondent filed a forged complaint under sections 397/398 of the Companies Act before the Company Law Board, New Delhi and in the affidavit of the respondent she stated that the appellant was immoral, alcoholic, and was having affairs with numerous girls since marriage. She also called him a criminal, infidel, forger and her manager to denigrate his position from the proprietor to an employee of her company. The appellant also mentioned that the respondent filed a false complaint in Case No.1365 0f 1988 using all kinds of abuses against the appellant. On 8.7.1999, the respondent filed a complaint in the Parliament Street Police Station, New Delhi and made all efforts to ensure the appellant’s arrest with the object of sending him to jail. The appellant was called to the police station repeatedly and was interrogated by the police and only after he gave a written reply and the matter on scrutiny was found to be false, the appellant with great difficulty was able to save himself from imprisonment. On 31.3.1999 the respondent had sent notice for breaking the Nucleus of the HUF, expressly stating that the Family Nucleus had been broken with immediate effect and asking for partition of all the properties and assets of the HUF and stating that her share should be given to her within 15 days. According to the appellant, this act of the respondent clearly broke all relations between the appellant and the respondent on 31.3.1999. The respondent had filed a complaint against the appellant under Section 24 of the Hindu Marriage Act directing payment of maintenance during the pendency of the case. This was rejected by the Trial Court and she later filed an appeal in the High Court. The appellant had deposited Rs.5 lacs on Court’s directions but that amount was not withdrawn by the respondent. On 22.1.2001 the respondent gave an affidavit before the High Court and got non-bailable warrants issued against the appellant. Consequently, the appellant was harassed by the police and ultimately he got the arrest order stayed by the High Court. The respondent admitted in her statement that she got the advertisement published in the English National Newspaper ’Pioneer’. The advertisement reads as under : PUBLIC NOTICE Be it known to all that Mr. Naveen Kohli S/o Mr. Prem Kumar Kohli was working with my Proprietorship firm as Manager. He has abandoned his job since May 1996 and has not resumed duties. He is no more in the employment of the firm. Any Body dealing with him shall be doing so at his own risk, his https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 23 authority to represent the firm has been revoked and none should deliver him orders, cash cheques or drafts payable to the firm. NEELU KOHLI Sole Proprietor M/s NITIN RUBBERS 152-B, Udyog Nagar, Kanpur The respondent in her statement before the Court did not deny the contents of the affidavit but merely mentioned that she did not remember whether she called the appellant a criminal, infidel and a forger in the affidavit filed before the Company Law Board. The respondent did not deny her using choicest abuses against the appellant but merely stated that she did not remember. The respondent also filed a contempt petition in the Company Law Board against its order of the Company Law Board dated 25.9.2000 in order to try and get the appellant thrown out of the little apartment and urged that the appellant be sent to jail. Before the Family Court, the respondent stated about solemnization of the marriage with the appellant on 20.11.1975. In her written statement she had denied the fact that she was either a rude or a quarrelsome lady. The respondent also denied that she had mentally, physically and financially harassed and tortured the appellant. She also stated that she never refused cohabitation with the appellant. She also denied indulging in any immoral conduct. She averred in the written statement that the appellant has been immorally living with a lady named ’Shivanagi’. The appellant and the respondent filed a number of documents in support of their respective cases. On the basis of the pleadings and the documents, the Additional Principal Judge of Family Court framed the following issues :- "1. Whether the respondent treated the plaintiff with cruelty by registering various criminal cases, getting the news published and initiating civil proceedings? 2. Whether the defendant treated the plaintiff with cruelty by her objectionable behaviour as stated in the plaint? 3. Whether respondent has made false allegation against the plaintiff? If yes, its impact? Whether in the presence of plaintiff, the defendant displayed her behaviour with Dr. Viswas Rout which comes in the category of immorality as has been stated in para 11 of the plaint? If yes, its impact? 4. Whether the petition is not maintainable https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 23 on the basis of preliminary objections 1 to 3 of the written statement? 5. Whether plaintiff has kept Smt. Shivanagi with him as his concubine? If yes, its impact? 6. Whether suit of the plaintiff is barred by the provisions of Section 11, C.P.C.? 7. Whether plaintiff is entitled to get the decree of dissolution of marriage against defendant? 8. Whether plaintiff is entitled to get any other relief?" Issues number 1 & 2 relate to the term ’Cruelty’ and Issue no. 3 is regarding impact of false allegations levelled by the respondent against the appellant. All these three issues were decided in favour of the appellant and against the respondent. The learned Trial Court came to a definite conclusion that the respondent had filed a very large number of cases against the appellant and got him harassed and tortured by the police. It also declared him an employee of the factory of which the respondent is a proprietor by getting an advertisement issued in the newspaper. According to findings of the Trial Court, the appellant was mentally, physically and financially harassed and tortured by the respondent. The Trial Court framed specific issue whether the appellant had kept Smt. Shivangi with him as his concubine. This allegation has been denied by the appellant. The respondent had failed to produce any witness in respect of the aforesaid allegation and was consequently not able to prove the same. The Trial Court stated that both parties have levelled allegations of character assassination against each other but failed to prove them. The Trial Court stated that many a times efforts have been made for an amicable settlement, but on the basis of allegations which have been levelled by both the parties against each other, there is no cordiality left between the parties and there is no possibility of their living together. According to the Trial court, there was no possibility to reconnect the chain of marital life between the parties. Hence, the Trial Court found that there is no alternative but to dissolve the marriage between the parties. The Trial Court also stated that the respondent had not filed any application for allowing permanent maintenance and Stridhan but, in the interest of justice, the Trial Court directed the appellant to deposit Rs.5,00,000/- toward permanent maintenance of the respondent. The Trial Court also ordered that a decree of dissolution of marriage shall be effective after depositing the payment of Rs.5,00,000/- by the appellant. Admittedly, the appellant had immediately deposited the said amount. The respondent, aggrieved by the judgment of the Principal Judge, Family Court, Kanpur City, preferred the https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 23 first appeal before the High Court, which was disposed of by a Division Bench of the Allahabad High Court. According to the High Court, the Trial Court had not properly appreciated and evaluated the evidence on record. According to the High Court, the appellant had been living with one Shivangi. As per the High Court, the fact that on Trial Court’s directions the appellant deposited the sum of Rs.5,00,000/- within two days after the judgment which demonstrated that the appellant was financially well off. The Division Bench of the High Court held that actions of the appellant amounted to misconduct, un-condonable for the purpose of Section 13(1)(a) of the Hindu Marriage Act. The appeal was allowed and the Trial Court judgment has been set aside. The suit filed by the appellant seeking a decree of divorce was also dismissed. The appellant preferred a Special Leave Petition before this Court. We have carefully perused the pleadings and documents on record and heard the learned counsel appearing for the parties at length. Both the parties have levelled allegations against each other for not maintaining the sanctity of marriage and involvement with another person. According to the respondent, the appellant is separately living with another woman, ’Shivanagi’. According to the appellant, the respondent was seen indulging in an indecent manner and was found in compromising position with one Biswas Rout. According to the findings of the Trial Court both the parties failed to prove the allegations against each other. The High Court has of course reached the conclusion that the appellant was living with one ’Shivanagi’ for a considerable number of years. The fact of the matter is that both the parties have been living separately for more than 10 years. Number of cases including criminal complaints have been filed by the respondent against the appellant and every effort has been made to harass and torture him and even to put the appellant behind the bars by the respondent. The appellant has also filed cases against the respondent. We would like to examine the facts of the case in the light of the settled position of law which has been crystallized by a series of judgments. In the light of facts and circumstances of this case we would also like to examine the concept of Irretrievable Breakdown of Marriage particularly with reference to recently decided cases. Impact of Physical and Mental Cruelty in Matrimonial Matters. The petition for divorce was filed primarily on the ground of cruelty. It may be pertinent to note that, prior to the 1976 amendment in the Hindu Marriage Act, 1955 cruelty was not a ground for claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial separation under Section 10 of the Act. By 1976 Amendment, the Cruelty was made ground for divorce. The words which have been incorporated are "as to cause https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 23 a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party". Therefore, it is not necessary for a party claiming divorce to prove that the cruelty treatment is of such a nature as to cause an apprehension \026 reasonable apprehension that it will be harmful or injurious for him or her to live with the other party. The Court had an occasion to examine the 1976 amendment in the case of N.G. Dastane v. S. Dastane [(1975) 2 SCC 326: AIR 1975 SC 1534], The Court noted that "....whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent". We deem it appropriate to examine the concept of ’Cruelty’ both in English and Indian Law, in order to evaluate whether the appellant’s petition based on the ground of cruelty deserves to be allowed or not. D. Tolstoy in his celebrate book "The Law and Practice of Divorce and Matrimonial Causes" (Sixth Edition, p. 61) defined cruelty in these words: "Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger." The concept of cruelty in matrimonial matters was aptly discussed in the English case in Bertram v. Bertram [(1944) 59, 60] per Scott, L.J. observed: "Very slight fresh evidence is needed to show a resumption of the cruelty, for cruelty of character is bound to show itself in conduct and behaviour. Day in and day out, night in and night out." In Cooper vs. Cooper [(1950) WN 200 (HL)], it was observed as under: "It is true that the more serious the original offence, the less grave need be the subsequent acts to constitute a revival." Lord Denning, L.J. in Kaslefsky v. Kaslefsky [(1950) 2 All ER 398, 403] observed as under: "If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament. This is an easy path to tread, especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperiled." https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 23 "In England, a view was at one time taken that the petitioner in a matrimonial petition must establish his case beyond a reasonable doubt but in Blyth v. Blyth [(1966) 1 All ER 524, 536], the House of Lords held by a majority that so far as the grounds of divorce or the bars to divorce like connivance or condonation are concerned, "the case like any civil case, may be proved by a preponderance of probability". The High Court of Australia in Wright v. Wright [(1948) 77 CLR 191, 210], has also taken the view that "the civil and not the criminal standard of persuasion applies to matrimonial causes, including issues of adultery". The High Court was therefore in error in holding that the petitioner must establish the charge of cruelty "beyond reasonable doubt". The High Court adds that "This must be in accordance with the law of evidence", but we are not clear as to the implications of this observation." Lord Pearce observed: "It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or departure from the normal standards of conjugal kindness causes injury to health or an apprehension of it, it is, I think, cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances would consider that the conduct complained of is such that this spouse should not be called on to endure it. * * * I agree with Lord Merriman whose practice in cases of mental cruelty was always to make up his mind first whether there was injury or apprehended injury to health. In the light of that vital fact the court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently weighty to say that from a reasonable person’s point of view, after a consideration of any excuse which this respondent might have in the circumstances, the conduct is such that this petitioner ought not to be called on to endure it. * * * The particular circumstances of the home, the temperaments and emotions of both the parties and their status and their way of life, their past relationship and almost every circumstance that attends the https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 23 act or conduct complained of may all be relevant." Lord Reid in Gollins v. Gollins [1964 AC 644 : (1963) 2 All ER 966]: "No one has ever attempted to give a comprehensive definition of cruelty and I do not intend to try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weaknesses of the spouses, and probably no general statement is equally applicable in all cases except the requirement that the party seeking relief must show actual or probable injury to life, limb or health. The principles of law which have been crystallized by a series of judgments of this Court are recapitulated as under :- In the case of Sirajmohmedkhan Janmohamadkhan vs. Harizunnisa Yasinkhan reported in (1981) 4 SCC 250, this Court stated that the concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty. In the case of Sbhoba Rani vs. Madhukar Reddi reported in (1988) 1 SCC 105, this Court had an occasion to examine the concept of cruelty. The word ’cruelty’ has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i)(a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 23 in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions and their culture and human values to which they attach importance. Each case has to be decided on its own merits. The Court went on to observe as under : "It will be necessary to bear in mind that there has been marked changed in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Lord Denning said in Sheldon v. Sheldon, [1966] 2 All E.R. 257 (CA) ’the categories of cruelty are not closed’. Each case may be different. We deal with the conduct of human beings who are no generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty." In the case of V. Bhagat vs. D. Bhagat reported in (1994) 1 SCC 337, this Court had occasion to examine the concept of ’mental cruelty’. This Court observed as under: "16. Mental cruelty in Section https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 23 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be decided in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made." The word ’cruelty’ has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case. There may be instances of cruelty by unintentional but inexcusable conduct of any party. The cruel treatment may also result from the cultural conflict between the parties. Mental cruelty can be caused by a party when the other spouse levels an allegation that the petitioner is a mental patient, or that he requires expert psychological treatment to restore his mental health, that he is suffering from paranoid disorder and mental hallucinations, and to crown it all, to allege that he and all the members of his family are a bunch of lunatics. The allegation that members of the petitioner’s family are lunatics and that a streak of insanity runs though his entire family is also an act of mental cruelty. This Court in the case of Savitri Pandey vs. Prem Chandra Pandey reported in (2002) 2 SCC 73, stated that mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 23 decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In this case, this Court further stated as under: "9. Following the decision in Bipinchandra case [AIR 1957 SC 176] this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena [AIR 1964 SC 40] by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation." In this case, this Court further stated that cruelty can be said to be an act committed with the intention to cause suffering to the opposite party. This Court in the case of Gananth Pattnaik vs. State of Orissa reported in (2002) 2 SCC 619 observed as under: "The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. "Cruelty" for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case." This Court, in the case of Parveen Mehta vs. Inderjit Mehta reported in (2002) 5 SCC 706, defined cruelty as under: https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 23 "Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subject to mental cruelty due to conduct of the other." In this case the Court also stated that so many years have elapsed since the spouses parted company. In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably. In Chetan Dass vs. Kamla Devi reported in (2001) 4 SCC 250 , this Court observed that the matrimonial matters have to be basically decided on its facts. In the words of the Court: "Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 23 interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of "irretrievably broken marriage" as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case." In Sandhya Rani vs. Kalyanram Narayanan reported in (1994) Supp. 2 SCC 588, this Court reiterated and took the view that since the parties are living separately for the last more than three years, we have no doubt in our mind that the marriage between the parties has irretrievably broken down. There is no chance whatsoever of their coming together. Therefore, the Court granted the decree of divorce. In the case of Chandrakala Menon vs. Vipin Menon reported in (1993) 2 SCC 6, the parties had been living separately for so many years. This Court came to the conclusion that there is no scope of settlement between them because, according to the observation of this Court, the marriage has irretrievably broken down and there is no chance of their coming together. This Court granted decree of divorce. In the case of Kanchan Devi vs. Promod Kumar Mittal reported in (1996) 8 SCC 90, the parties were living separately for more than 10 years and the Court came to the conclusion that the marriage between the parties had to be irretrievably broken down and there was no possibility of reconciliation and therefore the Court directed that the marriage between the parties stands dissolved by a decree of divorce. In Swati Verma vs. Rajan Verma reported in (2004) 1 SCC 123, a large number of criminal cases had been filed by the petitioner against the respondent. This Court observed that the marriage between the parties had broken down irretrievably with a view to restore good relationship and to put a quietus to all litigations between the parties and not to leave any room for future litigation, so that they may live peacefully hereafter, and on the request of the parties, in exercise of the power vested in this Court under Article 142 of the Constitution of India, the Court allowed the application for divorce by mutual consent filed before it under Section 13-B of the Hindu Marriage Act and declared the marriage dissolved and granted decree of divorce by mutual consent. In Prakash Chand Sharma vs. Vimlesh [1995 Supp (4) SCC 642], the wife expressed her will to go and live with the husband notwithstanding the presence of the other woman but the husband was not in a position to agree presumably because he has changed his position by remarriage. Be that as it may, a reconciliation was not possible. https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 23 In V. Bhagat v. D. Bhagat (supra), this Court while allowing the marriage to dissolve on ground of mental cruelty and in view of the irretrievable breakdown of marriage and the peculiar circumstances of the case, held that the allegations of adultery against the wife were not proved thereby vindicating her honour and character. This Court while exploring the other alternative observed that the divorce petition has been pending for more than 8 years and a good part of the lives of both the parties has been consumed in this litigation and yet, the end is not in sight and that the allegations made against each other in the petition and the counter by the parties will go to show that living together is out of question and rapprochement is not in the realm of possibility. This Court also observed in the concluding part of the judgment that: "Before parting with this case, we think it necessary to append a clarification. Merely because there are allegations and counter allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extra- ordinary features to warrant grant of divorce on the basis of pleading (and other admitted material) without a full trial. Irretrievable breakdown of the marriage is not a ground by itself. But while scrutinising the evidence on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluable mess, when the Court finds it in the interest of both parties." Again in A. Jaychandra v. Aneel Kumar, (2005) 2 SCC 22, a 3 judge Bench of this Court observed that the expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 23 certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes. The expression ’cruelty’ has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted (See Sobha Rani v. Madhukar Reddi (1988) 1 SCC 105). To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive descripttion of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. The Court dealing with the petition for divorce on https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 23 the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. In Durga P.Tripathy v. Arundhati Tripathy, (2005) 7 SCC 353, this Court further observed that Marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. In Lalitha v. Manickswamy, I (2001) DMC 679 SC that the had cautioned in that case that unusual step of granting the divorce was being taken only to clear up the insoluble mess when the Court finds it in the interests of both the parties. Irretrievable Breakdown of Marriage Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into services, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955. The 71st Report of the Law Commission of India https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 23 briefly dealt with the concept of Irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. We deem it appropriate to recapitulate the recommendation extensively. In this Report, it is mentioned that during last 20 years or so, and now it would around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, namely, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory. In the Report, it is mentioned that the germ of the breakdown theory, so far as Commonwealth countries are concerned, may be found in the legislative and judicial developments during a much earlier period. The (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920, included for the first time the provision that a separation agreement for three years or more was a ground for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce or not. The discretion conferred by this statute was exercised in a case in New Zealand reported in 1921. Salmond J., in a passage which has now become classic, enunciated the breakdown principle in these word: "The Legislature must, I think, be taken to have intended that separation for three years is to be accepted by this court, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the contrary, cease to exist de jure also. In general, it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further continuance is in general not merely useless but mischievous." In the Report it is mentioned that 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 parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a fagade, when the emotional and other bounds which https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 23 are of the essence of marriage have disappeared. It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfillment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances. On May 22, 1969, the General Assembly of the Church of Scotland accepted the Report of their Moral and Social Welfare Board, which suggested the substitution of breakdown in place of matrimonial offences. It would be of interest to quote what they said in their basis proposals: "Matrimonial offences are often the outcome rather than the cause of the deteriorating marriage. An accusatorial principle of divorce tends to encourage matrimonial offences, increase bitterness and widen the rift that is already there. Separation for a continuous period of at least two years consequent upon a decision of at least one of the parties not to live with the other should act as the sole evidence of marriage breakdown." Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties. 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 presented concrete instances of human behaviour as bring the institution of marriage into disrepute. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases do not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 23 Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, 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. Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that 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 therefrom. When we carefully evaluate the judgment of the High Court and scrutinize its findings in the background of the facts and circumstances of this case, then it becomes obvious that the approach adopted by the High Court in deciding this matter is far from satisfactory. The High Court ought to have considered the repercussions, consequences, impact and ramifications of all the criminal and other proceedings initiated by the parties against each other in proper perspective. For illustration, the High Court has mentioned that so far as the publication of the news item is concerned, the status of husband in a registered company was only that of an employee and if any news item is published, in such a situation, it could not, by any stretch of imagination be taken to have lowered the prestige of the husband. In the next para 69 of the judgment that in one of the news item what has been indicated was that in the company, Nikhil Rubber (P) Ltd., the appellant was only a Director along with Mrs. Neelu Kohli whom held 94.5% share of Rs.100/- each in the company. The news item further indicated that Naveen Kohli was acting against the spirit of the Article of the Association of Nikhil Rubber (P) Ltd., had caused immense loss of business and goodwill. He has stealthily removed produce of the company, besides diverted orders of foreign buyers to his proprietorship firm M/s Navneet Elastomers. He had opened bank account with forged signatures of Mrs. Neelu Kohli and fabricated resolution of the Board of Directors of the company. Statutory authority-Companies Act had refused to register documents filed by Mr. Naveen Kolhi and had issued show cause notice. All business associates were cautioned to avoid dealing with him alone. Neither the company nor Mrs. Neelu Kohli shall be liable for the acts of Mr. Naveen Kohli. Despite the aforementioned finding that the news item was intended to caution business associates to avoid dealing with the https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 23 appellant then to come to this finding in the next para that it will by no stretch of imagination result in mental cruelty is wholly untenable. The findings of the High Court that the respondent wife’s cautioning the entire world not to deal with the appellant (her husband) would not lead to mental cruelty is also wholly unsustainable. The High Court ought to have examined the facts of the case and its impact. In the instant case, the following cases were filed by the respondent against the appellant. 1. The respondent filed FIR No. 100/96 at Police Station, Kohna under Sections 379/323 IPC 2. The respondent got a case registered under Sections 323/324 registered in the police station Panki, Kanpur City. 3. At the behest of the respondent FIR No.156 of 1996 was also filed in the police station, Panki. 4. The respondent filed FIR under Section 420/468 IPC at the Police Station, Kotwali. 5. The respondent got a case registered under Section under Sections 420/467/468 and 471 IPC. 6. The respondent filed a complaint against the appellant under Sections 498A/323/504/506 IPC at Police Station, Kohna. 7. The respondent had even gone to the extent of opposing the bail application of the appellant in criminal case filed at the police station, Kotwali 8. When police filed final report in two criminal cases at police station, Kotwali and police station, Kohna, the respondent filed protest petition in these cases. 9. The respondent filed complaint no.125 of 1998 in the Women Cell, Delhi in September 1997 against the appellant’s lawyer and friend alleging criminal intimidation. 10. The respondent filed a complaint under sections 397/398 before the Company Law Board, New Delhi. 11. The respondent filed a complaint in Case No.1365 0f 1988 against the appellant. 12. Again on 8.7.1999, the respondent filed a complaint in the Parliament Street Police Station, New Delhi and made all efforts to get the appellant arrested. 13. On 31.3.1999, the respondent have sent a notice for breaking the Nucleus of the HUF. 14. The respondent filed a complaint against the appellant under Section 24 of the Hindu Marriage Act. 15. The respondent had withdrawn Rs.9,50,000/- from the bank account of the appellant in a clandestine manner. 16. On 22.1.01 the respondent gave affidavit before the High Court and got non-bailable warrants issued against the appellant. 17. The respondent got an advertisement issued in a national newspaper that the appellant was only her employee. She got another news item issued cautioning the business associates to avoid dealing with the appellant. The findings of the High Court that these proceedings could not be taken to be such which may warrant annulment of marriage is wholly unsustainable. https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 23 Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again. The High Court ought to have appreciated that there is no acceptable way in which the parties can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist. Undoubtedly, it is the obligation of the Court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond. The High Court ought to have visualized that preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties. The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life. In our considered view, looking to the peculiar facts of the case, the High Court was not justified in setting aside the order of the Trial Court. In our opinion, https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 23 wisdom lies in accepting the pragmatic reality of life and take a decision which would ultimately be conducive in the interest of both the parties. Consequently, we set aside the impugned judgment of the High Court and direct that the marriage between the parties should be dissolved according to the provisions of the Hindu Marriage Act, 1955. In the extra-ordinary facts and circumstances of the case, to resolve the problem in the interest of all concerned, while dissolving the marriage between the parties, we direct the appellant to pay Rs.25,00,000/- (Rupees Twenty five lacs) to the respondent towards permanent maintenance to be paid within eight weeks. This amount would include Rs.5,00,000/- (Rupees five lacs with interest) deposited by the appellant on the direction of the Trial Court. The respondent would be at liberty to withdraw this amount with interest. Therefore, now the appellant would pay only Rs.20,00,000/- (Rupees Twenty lacs) to the respondent within the stipulated period. In case the appellant fails to pay the amount as indicated above within the stipulated period, the direction given by us would be of no avail and the appeal shall stand dismissed. In awarding permanent maintenance we have taken into consideration the financial standing of the appellant. Before we part with this case, on the consideration of the totality of facts, this Court would like to recommend the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. A copy of this judgment be sent to the Secretary, Ministry of Law & Justice, Department of Legal Affairs, Government of India for taking appropriate steps. The appeal is accordingly disposed of. In the facts and circumstances of the case we direct the parties to bear their own costs. GOVERNMENT OF INDIA LAW COMMISSION OF INDIA Irretrievable Breakdown of Marriage – Another Ground for Divorce Report No. 217 March 2009 2 LAW COMMISSION OF INDIA (REPORT NO. 217) Irretrievable Breakdown of Marriage – Another Ground for Divorce Forwarded to the Union Minister for Law and Justice, Ministry of Law and Justice, Government of India by Dr. Justice AR. Lakshmanan, Chairman, Law Commission of India, on the 30th day of March, 2009. 3 The 18th Law Commission was constituted for a period of three years from 1st September, 2006 by Order No. A.45012/1/2006-Admn.III (LA) dated the 16th October, 2006, issued by the Government of India, Ministry of Law and Justice, Department of Legal Affairs, New Delhi. The Law Commission consists of the Chairman, the Member-Secretary, one full-time Member and seven part-time Members. Chairman Hon’ble Dr. Justice AR. Lakshmanan Member-Secretary Dr. Brahm A. Agrawal Full-time Member Prof. Dr. Tahir Mahmood Part-time Members Dr. (Mrs.) Devinder Kumari Raheja Dr. K. N. Chandrasekharan Pillai Prof. (Mrs.) Lakshmi Jambholkar Smt. Kirti Singh Shri Justice I. Venkatanarayana Shri O.P. Sharma Dr. (Mrs.) Shyamlha Pappu 4 The Law Commission is located in ILI Building, 2nd Floor, Bhagwan Das Road, New Delhi-110 001 Law Commission Staff Member-Secretary Dr. Brahm A. Agrawal Research Staff Shri Sushil Kumar : Joint Secretary& Law Officer Ms. Pawan Sharma : Additional Law Officer Shri J. T. Sulaxan Rao : Additional Law Officer Shri A. K. Upadhyay : Deputy Law Officer Dr. V. K. Singh :Assistant Legal Adviser Dr. R. S. Shrinet : Superintendent (Legal) Administrative Staff Shri Sushil Kumar : Joint Secretary& Law Officer Shri D. Choudhury : Under Secretary Shri S. K. Basu : Section Officer Smt. Rajni Sharma : Assistant Library & Information Officer 5 at: The text of this Report is available on the Internet https://www.lawcommissionofindia.nic.in © Government of India Law Commission of India The text in this document (excluding the Government Logo) may be reproduced free of charge in any format or medium provided that it is reproduced accurately and not used in a misleading context. The material must be acknowledged as Government copyright and the title of the document specified. Any enquiries relating to this Report should be addressed to the Member-Secretary and sent either by post to the Law Commission of India, 2nd Floor, ILI Building, Bhagwan Das Road, New Delhi-110001, India or by email to lci-dla@nic.in 6 D.O. No. 6(3)/155/2009-LC (LS) 30th March, 2009 Dear Dr. Bhardwaj Ji, Subject: Irretrievable Breakdown of Marriage – Another Ground for Divorce I am forwarding herewith the 217th Report of the Law Commission of India on the above subject. Section 13 of the Hindu Marriage Act, 1955 provides grounds for presentation of a petition for divorce. Section 27 of the Special Marriage Act, 1954 similarly provides grounds for grant of divorce in the case of a marriage solemnized under the Act. However, the said Acts do not provide “irretrievable breakdown of marriage” as a ground for divorce. The Law Commission of India in its 71st Report titled “The Hindu Marriage Act, 1955 - Irretrievable Breakdown of Marriage as a Ground of Divorce” recommended amendments in the Hindu Marriage Act to make irretrievable breakdown of marriage as a new ground for granting divorce among the Hindus. Recently, the Supreme Court also in Naveen Kohli v. Neelu Kohli (AIR 2006 SC 1675) recommended to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to 7 incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. In view of the above, the Law Commission of India suo motu took up the study of the subject. The Commission examined the extant legislations as well as a number of judgments of the Supreme Court and High Courts on the subject and is of the view that “irretrievable breakdown of marriage” should be incorporated as another ground for granting divorce under the provisions of the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. The Court before granting a decree for divorce on the ground that the marriage has irretrievably broken down should also examine whether adequate financial arrangements have been made for the parties and children. The Commission has accordingly made its recommendations in this Report. With warm regards, Yours sincerely, (Dr. AR. Lakshmanan) Dr. H. R. Bhardwaj, Union Minister for Law and Justice, Government of India Shastri Bhawan, New Delhi-110 001. 8 Irretrievable Breakdown of Marriage – Another Ground for Divorce Table of Contents PAGE NO. I. INTRODUCTION 9- 11 II. JUDICIAL VIEW/SUGGESTIONS 12- 22 III. RECOMMENDATION 23 9 I. INTRODUCTION 1.1 Whenever the question of inclusion of irretrievable breakdown of marriage as a ground for divorce is mooted, the opponents argue that “divorce by mutual consent” introduced in the Hindu Marriage Act in 1976 more than covers the situation. It is important to note that “mutual consent” requires the consent of both the parties and if one or the other does not cooperate, the said ground is not available. ‘Irretrievable breakdown of marriage’, on the other hand, is a ground which the Court can examine and if the Court, on the facts of the case, comes to the conclusion that the marriage cannot be repaired/saved, divorce can be granted. The grant of divorce is not dependent on the volition of the parties but on the Court coming to the conclusion, on the facts pleaded, that the marriage has irretrievably broken down. 1.2 Irretrievable breakdown of marriage- The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All 10 quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it.1 1.3 In Naveen Kohli v. Neelu Kohli2 the Supreme Court recommended to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for divorce in the following words: “Before we part with this case, on the consideration of the totality of facts, this Court would like to recommend the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. A copy of this judgment be sent to the Secretary, Ministry of Law & Justice, Department of Legal Affairs, Government of India for taking appropriate steps”3 1.4 Earlier, in Ms. Jorden Diengdeh v. S. S. Chopra4 the Supreme Court observed: 1 Mayne’s Treatise on Hindu Law & Usage (16th Ed.) Revised by Justice Ranganath Misra (New Delhi: Bharat Law House, 2008), page 292. 2 AIR 2006 SC 1675. 3 Ibid., para 96. 4 AIR 1985 SC 11 935. 12 “It appears to be necessary to introduce irretrievable breakdown of marriage and mutual consent as grounds of divorce in all cases.…We suggest that the time has come for the intervention of the legislature in those matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situation in which couples like the present have found themselves.”5 1.5 It is pertinent to notice that the Law Commission of India has already submitted a very comprehensive 71st Report on irretrievable breakdown of marriage as a ground of divorce. The matter had been taken up by the Commission as a result of a reference made by the Government of India. The Law Commission under the Chairmanship of Shri Justice H. R. Khanna presented its Report on April 7, 1978. The Report considered the suggestion and analyzed the same in extenso. Before embarking upon further action on the suggestion that irretrievable breakdown of marriage should be made as a ground for divorce, the Law Commission considered it appropriate to invite views on the matter by issuing a brief questionnaire. The Commission in its 71st Report have accepted in principle irretrievable breakdown of marriage as a ground of divorce and also examined the question as to how exactly to incorporate it into the Act and also further examined the question whether the introduction of such a ground should be coupled with any safeguards. The Commission also in Chapter II of the said Report considered present law under the Hindu Marriage Act, merits and demerits of the theory of irretrievable breakdown of marriage in Chapter IV and retention of 5 Ibid., para 7. 12 other grounds of divorce in Chapter V. In Chapter VI the Commission also considered the requirement of living apart and also suggested many safeguards like welfare of children, hardship and recommended amendments to Sections 21A, 23(1)(a) and also recommended insertion of new sections 13C, 13D and 13E. 1.6 In the light of the above, the Law Commission suo motu took up the study on the subject. II. JUDICIAL VIEW/SUGGESTIONS 2.1 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 presented with concrete instances of human behaviour as bring the institution of marriage into disrepute.6 Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interest of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. 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 6 71st Report of the Law Commission of 12 India. 13 wrecked beyond the hope of salvage, 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 adequate response to the necessities arising therefrom.7 The Supreme Court in Naveen Kohli vs. Neelu Kohli8 recommended to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for divorce. 2.2 The irretrievable breakdown of marriage is not a ground for divorce by itself. But while scrutinizing the evidence on record to determine whether the grounds on which divorce is sought are made out, the circumstances can be taken into consideration. No divorce can be granted on the ground of irretrievable breakdown of marriage if the party seeking divorce on this ground is himself or herself at fault. The decree of divorce on the ground that the marriage has irretrievably broken down can be granted in those cases where both the parties have levelled such allegations against each other that the marriage appears to be practically dead and the parties cannot live together. The power of the Court to grant divorce on the ground of irretrievable breakdown of marriage should be exercised with 7 Supra note 1, pages 292 – 293. 8 Supra note 2. 14 much care and caution in exceptional circumstances only in the interest of both the parties.9 2.3 In Geeta Mullick v. Brojo Gopal Mullick10 the Calcutta High Court held: “In our considered opinion, the marriage between the parties can not be dissolved by the trial Court or even by the High Court only on the ground of marriage having been irretrievably broken down, in the absence of one or more grounds as contemplated under section 13(1) of the Hindu Marriage Act, 1955.”11 2.4 The concept of irretrievable breakdown of marriage cannot be used as magic formula to obtain a decree for divorce where grounds for divorce are not proved. 2.5 In V. Bhagat v. D. Bhagat12 the Supreme Court held : “Irretrievable breakdown of the marriage is not a ground for divorce by itself. But while scrutinizing the evidence on record to determine whether the ground(s) alleged is made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind.”13 9 Supra note 1, page 293. 10 AIR 2003 Cal. 321. 11 Ibid., para 7. 12 AIR 1994 SC 15 710. 13 Ibid., para 23. 16 2.6 The Calcutta High Court in Tapan Kumar Chakraborty v. Jyotsna Chakraborty14 held that in a petition for divorce on a ground as mentioned in the Hindu Marriage Act or the Special Marriage Act, court cannot grant divorce on the mere ground of irretrievable breakdown of marriage. 2.7 In Kanchan Devi v. Pramod Kumar Mittal15, however, the Supreme Court held: “…the marriage between the appellant and the respondent has irretrievably broken down and that there was no possibility of reconciliation, we in exercise of our powers under Art. 142 of the Constitution of India hereby direct that the marriage between the appellant and the respondent shall stand dissolved by a decree of divorce.”16 2.8 There is no use of keeping two persons tied by the matrimonial relationship when they cannot live peacefully. Where wedlock has become a deadlock, since parties are living separately, and after marriage the wife has lived only for a few months in the matrimonial home, wife having made allegations of cruelty and desertion against the husband and husband having made counter-allegations against her, the court in Krishna vs. Som Nath17 held that marriage is irretrievably broken and it is in the interest of justice that decree of divorce be granted so that both the parties can live in peace. When the court finds in facts as well as from talks of resettlement or reconciliation between parties that there was no possibility of reunion 14 AIR 1997 Cal. 134. 15 AIR 1996 SC 3192. 16 Ibid., para 6. 17 17 (1996) DMC 667 (P&H). 21 AIR 2002 SC 591. 16 between husband and wife and refusal of decree of divorce would only prolong the agonies of the spouses, it can dissolve the marriage on this ground.18 Where the husband and the wife are living separately from each other for the last 19 years and there is no chance of settlement between the parties a decree for divorce can be granted.19 Where there was no consummation of marriage, wife being adverse to cohabitation, wife disobeyed instructions of the court to undergo medical examination to prove that marriage had not consummated, there was indecent behaviour of wife to her in-laws reflecting her mental imbalance, and the parties have been living separately for a period of 16 years without any serious attempt for reconciliation, a decree dissolving the marriage would be proper.20 2.9 The Supreme Court in Savitri Pandey v. Prem Chandra Pandey21 held that marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite observation of the Supreme Court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity of marriage cannot be left at the whims of one of the annoying spouses. 18 Ashok v. Rupa, 1996 (2) HLR 512 (Guj). 19 Shankar v. Puspita, AIR 2005 Jhar. 21 AIR 2002 SC 591. 17 92. 20 Rita v. Trilokesh, AIR 2007 Gau.122. 17 2.10 In Vinita Saxena v. Pankaj Pandit22, the marriage between Vinita Saxena and her husband Pankaj Pandit was dissolved by an order of the Supreme Court. The marriage between the parties lasted only for five months. Both of them were living separately for over 13 years. Marriage also was not consummated. Wife filed a petition for the dissolution of marriage on the ground of physical and mental cruelty and insanity on the part of the husband. Trial court however dismissed the petition. High Court also dismissed the appeal despite the failure of the husband to appear before the court. Allowing the appeal of the wife, a division bench of the Supreme Court speaking through Dr. Justice AR. Lakshmanan ( as he then was ) held that the orders of the courts below had resulted in grave miscarriage of justice to the wife who had been constrained into living with a dead relationship for over 13 years and that the fact situation clearly showed that the husband and wife can never ever stay as husband and wife and the wife’s stay with the respondent husband would be injurious to her health.Accordingly, a decree of divorce was granted in favour of the wife against the husband. The Court held as follows: “36. As to what constitute the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. 22 JT 2006 (3) SC 587. 18 37. If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer. …… 44. Spouses owe rights and duties each to the other and in their relationship they must act reasonably. In every case where cruelty exists it is possible to say that the spouse at fault has been unreasonable. The list of cruelty, therefore, should be reach of the duty to act reasonably, whether in omission or commission, causing injury to health. Such a list avoids imputing an intention where in fact none may exist. Further all such matters are foresight, desires, wishes, intention, motives, perception, obtuseness, persistence and indifference would remain relevant but merely as matter of evidence bearing upon the requirement to act reasonably or as aggravation of the matters charged. …. 49. Humane aspects which this Court should consider: - The appellant was 24 years of age when she got married. - The marriage lasted for four to five months only when she was compelled to leave the matrimonial home. 19 - The marriage between the parties was not consummated as the respondent was not in a position to fulfil the matrimonial obligation. - The parties have been living separately since 1993. 13 years have passed they have never seen each other. - Both the parties have crossed the point of no return. - A workable solution is certainly not possible. - Parties at this stage cannot reconcile themselves and live together forgetting their past as a bad dream. - Parties have been fighting the legal battle from the year 1994. - The situation between the parties would lead to a irrefutable conclusion that the appellant and the respondent can never ever stay as husband and wife and the wife’s stay with the respondent is injurious to her health. - The appellant has done her Ph.D. The respondent, according to the appellant, is not gainfully employed anywhere. - As a matter of fact, after leaving his deposition incomplete during the trial, the respondent till date has neither appeared before the trial court nor before the High Court. 50. The facts and circumstances of the case as well as all aspects pertain to humanity and life would give sufficient cogent reasons for us to allow the appeal and relieve the appellant from shackles and chain of the respondent and let her live her own life, if nothing less but like a human being.” 20 2.11 In Samar Ghosh vs Jaya Ghosh23 the Supreme Court referred to the 71st Report of the Law Commission of India on "Irretrievable Breakdown of Marriage" with approval as follows: “90. We have examined and referred to the cases from the various countries. We find strong basic similarity in adjudication of cases relating to mental cruelty in matrimonial matters. Now, we deem it appropriate to deal with the 71st Report of the Law Commission of India on "Irretrievable Breakdown of Marriage". 91. The 71st Report of the Law Commission of India briefly dealt with the concept of irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. In this Report, it is mentioned that during last 20 years or so, and now it would be around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory. It would be relevant to recapitulate recommendation of the said Report. 92. In the Report, it is mentioned that the germ of the breakdown theory, so far as Commonwealth countries are concerned, may be found in the legislative and judicial developments during a much earlier period. The (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920, included for the first time the provision that a separation agreement for three years or more was a ground for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce or not. The discretion conferred by this statute was exercised in a case Lodder v. Lodder (1921 New Zealand Law Reports 786). Salmond J., in a passage which has now become classic, enunciated the breakdown principle in these words: 23 (2007) 4 SCC 511. 21 ‘The Legislature must, I think, be taken to have intended that separation for three years is to be accepted by this Court, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the contrary, cease to exist de jure also. In general, it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further continuance is in general not merely useless but mischievous.’ 93. In the said Report, it is mentioned that 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 parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet such a situation has arisen in which the marriage cannot survive. The marriage has all the external appearances of marriage, but none in reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a facade, when the emotional and other bonds which are of the essence of marriage have disappeared. 94. It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfilment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances. 95. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a 22 petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.” 2.12 Similarly, in Sanghamitra Ghosh vs Kajal Kumar Ghosh24 the Supreme Court while referring to its earlier decision in Ashok Hurra v Rupa Bipin Zaveri25, also reproduced some excerpts from the aforesaid 71st Report of the Law Commission. 2.13 As stated earlier, the recent decision of the Apex Court in the case of Naveen Kohli vs. Neelu Kohli26 fully establishes the need for immediate amendment of the Hindu Marriage Act to incorporate ‘irretrievable breakdown of marriage’ as a ground for grant of divorce. The Court in that case was dealing with a case where the parties were living separately for ten years. There were, during this period, many proceedings between the parties, mostly by the wife. Allegations of misconduct were made on both sides, maintenance was demanded and paid and the proceedings lingered on causing deep anxiety and frustration to both sides. The husband filed for divorce on the ground available – cruelty. The Trial Court granted him relief but the High Court turned down the divorce petition on the ground that the conduct of the wife did not fall within the parameters of ‘cruelty’ as defined in various judgments. The husband was back 24 (2007) 2 SCC 220. 25 (1997) 4 SCC 226. 26 Supra note 23 2. 24 to square one. On appeal, the Supreme Court granted him relief. This was a classic case of consent being withheld by a spouse just for harassing the other spouse. The Court recommended to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate ‘irretrievable breakdown of marriage’ as a ground for grant of divorce. 2.14 It would also be in the fitness of things that the Special Marriage Act, 1954, which deals with the civil marriages, is also considered for an amendment on similar lines. III. RECOMMENDATION 3.1 It is, therefore, suggested that immediate action be taken to introduce an amendment in the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 for inclusion of ‘irretrievable breakdown of marriage’ as another ground for grant of divorce. 25 3.2 The amendment may also provide that the court before granting a decree for divorce on the ground that the marriage has irretrievably broken down should also examine whether adequate financial arrangements have been made for the parties and children. 3.3 We recommend accordingly. (Dr. Justice AR. Lakshmanan) Chairman (Prof. Dr. Tahir Mahmood) (Dr. Brahm A. Agrawal) Member Member-Secretary