This article is authored by Pankhuri Pankaj, a 3rd-year student pursuing BA-LLB (Hons.) from Vivekananda Institute of Professional Studies, affiliated to GGSIPU. She is currently interning with Lexpeeps. This article summarises certain key provisions of “irretrievable breakdown as a ground for dissolution” under the Hindu Marriage Act and is qualified in its entirety by reference to the Hindu Marriage Act, 1955.
In India marriage is considered a sacrament and an integral part of the community which needs to be preserved at all costs. Marriage is considered the foundation of the family and an institution in the maintenance of which the public at large is entrusted. With the importance attached to the bond of marriage earlier in the Hindu community divorce was not even considered as an option, especially for the women, but with the enactment of the Hindu Marriage Act, 1955, a marriage can be dissolved by both the parties in marriage on any of the ground provided section 13 of the Act.
LAWS IN RELATION TO DIVORCE IN INDIA
From considering marriage to be a holy bond made by the almighty himself to accepting the need to relieve a woman from the obligation to be chained with a man for the rest of her life despite the fact that man is completely devoid of the virtues that a husband should possess, the Hindu marriage laws have paved a slow but steady path to accept the provision of divorce.
In India the divorce laws are categorised on the basis of two theories:
- First is the Fault Theory which basically relies on the matrimonial offence of either of the parties in the marriage to refer to a dissolution of the marriage. There are in total 9 such matrimonial offences laid down under Section 13 of the Hindu Marriage Act, 1955 to act as a ground for divorce.
- Second is the Mutual Consent Theory which lays down that in case both the parties in the marriage wish to detach from each other mutually without either of the parties being at fault then they should be granted the right. This theory is based on the concept that if two individuals are entitled to get married on their wish then they should be entitled to walk out of the union if they wish to. This theory has been enumerated under Section 13(i)(A) and 13(i)(B) of the Act.
WHAT IS IRRETRIEVABLE BREAKDOWN OF MARRIAGE?
Irretrievable breakdown of a marriage is a stage in a matrimonial relationship where the couple can no longer live together as man and wife. For the first time, this term was brought up in New Zealand where it was recognized that it needn’t be necessary for there to be some fault or other for a spouse to want to opt-out of a marriage and hence the law has to recognize and cater to that requirement.
The case of Masarati v. Masarati ( 1 WLR 393, CA) the concept of irretrievable breakdown was considered for the first time in England and later in 1943 in the case of Blunt v. Blunt ( AC 517, HL), the house of lords laid down more explicitly that no good can come out of legally upholding a marriage that has broken down to the point that there’s no scope for repair but separation. Under the English Law, it is considered that though marriage portraits a union of two individuals and is viewed as an example about companionship and love, rather than be put in a situation where a fault has to be brought out to prove to the court as to why the marriage wouldn’t work the option to opt-out of this bond and the choice to dissolve such a union should also be available with the same amount of dignity and ease.
Even the Muslim law has taken the liberty to consider the breakdown theory and has graciously given both the parties to the marriage the right to give talaq, but till date in India, there is still no codified law to recognize irretrievable breakdowns as a ground for the dissolution of a marriage. In a country where the institution of marriage is considered a sacrament and is personified as a relation of eternal love and promise, the idea that the individuals involved in this holy arrangement would grow out of the relationship and would wish to dissolve the union is hard to digest fact. But with the change in the scenario in the country and considering the infact dead marriages involved in long drawn battles the Supreme Court expressed special concern regarding this concept.
IRRETRIEVABLE BREAKDOWN OF A MARRIAGE IN INDIA
In the case of A. Jayachandra v. Aneel Kaur, the Supreme Court after pondering on the facts of the case considered the diffusion and disintegration of marital unity and deduced the irretrievable breakdown of marriage and granted divorce to the husband.
In the case of Naveen Kohli v. Neelu Kohli (AIR 2006 SC 1675), where after a few years of marriage the relationship between the individuals turned sour and various allegations of adultery and cruelty were raised. After carefully examining the facts of the case the trial court held that no cordiality was left between the parties after the allegations raised were of such nature and thus no possibility to reconnect the chain of marital life between them. From the facts itself, it was evident to the court that the marriage was wrecked beyond any scope for redemption and hence, the court held that there was no alternative left but to dissolve this marriage. Even though the High Court upheld the idea that the Trial Court made an error in granting divorce to the parties but the Supreme Court upheld the decision of the Trial Court and upheld the idea that it is best to sever the legal tie when the marriage becomes “fictional”.
Later in the case of Vishnu Dutt Sharma v Manju Sharma (Civil Appeal NO. 1330 OF 2009), the case of Naveen Kohli v. Neelu Kohli was brought up to appeal for a divorce on the grounds of irretrievable breakdown, the court held that the granting of the divorce on grounds of irretrievable breakdown would mean adding a clause to Section 13 of the Act through a judicial verdict. A mere direction of the court in earlier cases, without considering the legal position, was not a precedent to be followed by the courts. The court further added that only the legislature is empowered with the right to add a new clause making irretrievable breakdown of marriage grounds for a divorce. In the end, the plea was rejected by the Supreme Court and it was clarified that even though irretrievable breakdown was recognised under Naveen Kohli v. Neelu Kohli, the divorce was granted on the grounds of cruelty.
It is important to note that before considering the option of granting a divorce on irretrievable breakdown is to make sure the marriage was legally valid.
Even though the Indian judiciary has recognised the irretrievable breakdown of marriage but to accept this concept as a ground for divorce it is necessary for the society to take a step aside from the belief of marriage as sanctity and face the reality of marriage indeed being a special bond but one that can grow out of those exceptional qualities of unity and love too. It is the Indian judiciary which hears cases on a daily basis but laws are not made everyday, for one to see irretrievable breakdown see the light on the other end of the tunnel as a valid ground for divorce, it is only the legislature which can fulfil that thought
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