In India, marriage is considered a sacred union between two bodies of opposite sexes. Sharing a common room, their life, and the commitment to live with each other makes it unbreakable bondage not only for one life but for seven lives. It is believed that when two souls will unite in every sense that is physical, mental, and psychological, a new soul will come into existence which is termed “PROGENY” which is very important and that is how life will move ahead. It is believed that this relationship is built by God in Heaven and no one should question this, even the “Husband and Wife”. But what if one of the spouses isn’t happy with this sacramental knot and wants to break it? Is he or she allowed to do so?
The answer changes with time. Before this century, even the thought of separation was deemed to be a very sinful thing but today it is not. The main reason behind this is that people are now more advanced. The development in the field of communication, education, understanding, and societal norms has developed the social strata of society. People have now started giving importance to their mental health and that is good in every sense.
Historically, there is no proper law that considers the ground of “Irretrievable Breakdown of Marriage” for the ground of Divorce. Under the Hindu Marriage Act, 1955, Section 13 deals with the various ground on which divorce can be obtained. They are:
Fault Ground [Section 13(1)]
- Desertion, Adultery, Cruelty, Insanity, Leprosy, and Venereal Disease1.
- Apart from this, Conversion and Renunciation of the world can also be used as a valid ground for Divorce in Hindu Religion. Under this case, 2 conditions should be met and they are:
- The spouse has ceased to be a Hindu, and
- He or she has converted to another religion2.
In the case of Teesta Chattoraj vs. Union of India3, the court held that conversion of religion by one spouse can be used as a valid ground for divorce. Similarly, in the case of Sital Das vs. Sant Ram4, the court held that if someone undergoes the traditions, rites, and ceremonies of religion, that person will be considered to have entered the religious order but if that individual cohabits then it cannot be considered a valid ground because he or she has no longer renounced the world.
Divorce by Mutual Consent [13B (1)]5
According to this section, if the spouses are not happy with each other and want to separate and lead a new life away from each other, they can file for divorce based on the ground of “Divorce by Mutual Consent”.
Customary Divorce [Section 29 (2)]6
Proceeding further, Section 27 and Section 28 of the Special Marriage Act, 19547 also deals with the grounds of divorce in a solemnized marriage. But nowhere it is explicitly mentioned that the ground of “Irretrievable breakdown of Marriage” is a valid ground. In this respect only, the Law Commission of India in its 71st Report recommended that the ground of “Irretrievable Breakdown of Marriage” should be explicitly mentioned and stated in the Hindu Law. But this lapsed as there was a high level of resistance and lack of support from some major women-led NGOs. The reason which was put forthwith was that the ground of “mutual consent” already covers this and a new addition will only complicate things further.
In the case of Munish Kakkar vs. Nidhi Kakkar8, the court itself expressed that a dead letter marriage would only create a strenuous relationship between the spouses. It would be better if they split and move ahead in their lives “as the recognition of the futility of a completely failed marriage being continued only on paper….”
That is why, in the case of Naveen Kohli vs. Neelu Kohli9, the Supreme Court itself stated that adding the ground of “Irretrievable breakdown” in the Hindu Marriage Act, 1955 is reasonable. The individuals are right if they go with this option.
Though there is no specific provision present in the current judicial system, there are instances where the Supreme Court has collapsed the marriage on the ground of irretrievable breakdown under the power conferred by Article 142 of the Constitution of India.
In the case of Pramod Kumar Mittal and Another vs. Kanchan Devi10, the Court exercised its power under Article 142 of the Constitution of India and dissolved the marriage between the appellant and the respondent. Here, there were 4 daughters also who were born out of wedlock but the Court maintained that the husband is maintaining them till now and he will continue to do so. A reasonable opportunity will be given to the wife to meet her daughters if she has any intentions or desire for doing so.
Similarly, in the cases of Sanghmita Ghosh vs. Kajal Ghosh11, Samar Ghosh vs. Jaya Ghosh12, K Srinivas Rao vs. D.A. Deepa13, Sukhendu Das vs. Rita Mukherjee14, the court exercised its power under Article 142 and dissolved the marriage on the ground of “Irretrievable Breakdown”.
And, the recent case in this regard is R. Srinivas Kumar vs. R. Shametha15. Here, the petitioner claimed that he suffered mental cruelty because of the respondent and that is why he filed for divorce under the Section 13(1)(i-a) and (ib) of the Hindu Marriage Act, 1955 which was dismissed in the Family Court as the husband failed to prove the ground of cruelty. When he then appealed to the Higher Court, it was again dismissed. After this, he moved to the Supreme Court and presented his case where it was mentioned that both the spouses are not living with each other for the past 22 years and this should be considered as a ground for an “Irretrievable Breakdown” of marriage. Then, the SC exercised his power under Article 142 and granted Divorce.
Sometimes, there are situations like when the spouses cannot bear each other in a matrimonial relationship for even the time period of 1 year or 6 months. In that case, the SC did exercise its power again and dissolved the marriage. This was done in the case of Manish Goel v. Rohini Goel16, where the court held that “the court is competent to waive of the statutory period of six months in the exercise of its jurisdiction under Article 142 of the Constitution.” This case is also important from the view that, in this case, the Court passed an order contrary to another law. Generally, no court has the power to issue a direction that is in contravention of the statutory provisions because courts are the institutions that are meant to enforce the rule of law and not pass an order which is in contravention of that. But in the case of, Laxmidas Morarji (dead) by L.Rs. v. Behrose Darab Madan17, the Court has held that the power under Article 142 of the Constitution of India is constitutional and therefore, cannot be restricted by any statutory enactments. This doesn’t mean that now the Court can act or pass an order which is inconsistent with the statutory enactments about the case. The power has to be exercised only in cases where existing provisions of the law are not able to bring complete justice between the parties.
Likewise, there are a series of Judgments where the Supreme Court pronounced judgments in the exercise of its power under Article 142 of the Constitution of India and granted divorce to the spouses who no longer wanted to live with each other in a matrimonial relationship because it continuity will only prove to be fruitless and further cause emotional roller coastal ride on the lives of the individuals involved. The sooner it ends, the better it would be for both parties as there is no reason of continuing or be tied in a sacramental knot that has no sense in reality.
No doubt marriage is an institution that is very pious and sacramental in its own sense. When it happens, there is a birth of a new soul in this world which only brings happiness and happiness. Not only that, but it also grants individuals some legal rights which are not in place when the individual is single. It is only extended to married people that are:
- Right to inherit spouse’s property upon death
- Right to receive spouse’s social security, pension, worker’s compensation, or disability benefits
- Right to receive “marriage” or “family rate” on health, car, and/or liability insurance.
But still, that does not mean keeping two people in a relationship where both parties or even one party is unhappy. If the marriage proves to be meaningless and pointless, it should be dissolved. Apart from this, our legal judicial system cannot turn a blind eye when one or both parties find it laborious to continue in a relationship. It is a very miserable situation where only quarreling, bickering, bitterness, and many other things reside. And in that case, it cannot be said as an immoral activity when one party tries to break it. Because all the responsibilities and duties come after humanity. It is to be noted that “Irretrievable Breakdown of Marriage” is not a recognized ground for Divorce under the actual Hindu Marriage Act, 1955 or any law. It has been only accepted as a ground-based on precedents.
- Hindu Marriage Act, 1955, Section 13(1).
- Teesta Chattoraj vs, Union of India, 2012 SCC OnLine Del 1949
- Sital Das vs. Sant Ram, 2011 SCC OnLine Mad 681
- Hindu Marriage Act, 1955, Section 13 (B) (1)
- Hindu Marriage Act, 1955, Section 29 (2)
- Special Marriage Act, 1954, Section 27 and 28
- Munish Kakkar vs. Nidhi Kakkar, (2020) 14 SCC 657
- Naveen Kohli vs. Neelu Kohli, 2006 (4) SCC 558
- Kanchan Devi vs. Promod Kumar Mittal, (1996) 8 SCC 90
- Sanghamita Ghosh vs. Kajal Ghosh (2007) 2 SCC 220
- Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511
- K.Srinivas Rao vs. D. A. Deepa, (2013) 5 SCC 226
- Sukhendu Das vs. Rita Mukherjee, (2017) 9 SCC 632
- R. Srinivas Kumar vs. R. Shametha, AIR 2019 SC 4919
- Manish Goel vs. Rohini Goel, (2010) 4 SCC 393
- Laxmidas Morarji (DEAD) by LRS. vs. Behrose Darab Madan, (2009) 10 SCC 425
This article is written by Deeksha Singh, from Lloyd Law College, Greater Noida.