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EXPANDING HORIZONS OF “IRRETRIEVABLE BREAKDOWN OF MARRIAGE”: A CRITICAL ANALYSIS UNDER THE HINDU MARRIAGE ACT, 1957 AND MUSLIM PERSONAL LAW

INTRODUCTION

Marriage is the legal name given to the relationship between a wedded couple. Marriage is a social status and a symbol in India for both husband and wife. It grants both spouses legal rights. However, they vary according to faith, as marriage laws in India are primarily based on religion, notably custom. In the Hindu religion, marriage is co-related with the sacrament that every Hindu must do in their life. In the Shastric Hindu law,[1] marriage has been considered one of the most important sanskaras (an important religious ceremony). In the Muslim religion, marriage completes a man. According to Anas, the Prophet of Allah (PBUH) said, “when a man marries, he has fulfilled half of his religion, so let him fear Allah regarding the remaining half.” [2] While it’s essential to enter into a marriage relationship in both religions, it is sometimes necessary to end it. Divorce is the breakdown of a marriage and the cessation of marital rights and obligations. Divorce was regarded as a condition, an unavoidable outcome of an unsatisfactory marriage. A Hindu couple can seek divorce under the Hindu Marriage Act, of 1976. Similarly, a Muslim couple can ask for divorce under Muslim Personal Laws. A couple married under the Special Marriage Act, of 1954 can obtain a divorce under the same governing law. Furthermore, Christian couples can also seek divorce under the 1896 Act. Divorce in India is based on two theories, namely, the fault theory and the consent theory. One of the spouses must be at fault (for example, adultery by one spouse) allowing the other (innocent) spouse to dissolve the marriage. According to the first theory, one guilty and one innocent party are required. Parties can also seek divorce mutually in India. In the second theory, the consent of both parties is necessary.

MEANING OF IRRETRIEVABLE BREAKDOWN OF MARRIAGE

Irretrievable as per the dictionary means impossible to return to a previously existing situation. Thus, marriage is irretrievably broken down when there are such adverse circumstances that there is no chance that the spouses would continue to cohabitate as husband and wife for love and comfort. Legally, when the court examines the facts and concludes that the marriage cannot be rescued or repaired, divorce is granted irrespective of the consent of another spouse. Here the divorce is not dependent on the volition of parties but on the court. Generally, the advocates co-relate the irretrievable breakdown of the marriage with divorce by common assent. The new theory of divorce i.e., the breakdown theory allows a married couple to satisfy the court that they are unhappy in the relationship and the situation has become so intolerable that they cannot live together as a husband and wife. The marriage is dissolved in such a case irrespective of the cause.

RECOGNITION IN INDIA

In Durga Prasanna Tripathy v. Arundhati Tripathy,[3] a divorce petition was filed after 14 years of separation between the petitioner (Durga Prasanna) and the accused (Arundhati Tripathy). The court determined that they had gone too far and crossed the boundary of no return. They cannot be dragged back and made to make adjustments. Given that the marriage could no longer be saved, the court granted divorce to the parties.

The irremediable breakdown of marriage has not been recognized as a separate ground of divorce in any personal law of India. Law Commission in its 71st report[4] strongly suggested that “irretrievable breakdown of marriage” should be made a separate reason for divorce. Similarly, the 217th Law Commission Report[5], After extensive research of contemporary divorce cases and judgment of the Supreme Court and various High Courts, firmly indicated that the “irretrievable breakdown of marriage” must be added as a new justification for divorce under the Special Marriage Act of 1954 and the Hindu Marriage Act of 1955, respectively. The “Hindu Marriage Laws (Amendment) Act, 1976” codified the concept of an irreparable collapse of marriage into Hindu Law. The amendment said that if the parties had been living apart for a lengthy period and had filed lawsuits against the other party, it may be concluded that the union had been irretrievably destroyed and they had no possibility of reuniting. They must be qualified for a divorce decree in this circumstance.

COMMON GROUNDS FOR IRRETRIEVABLE BREAKDOWN OF MARRIAGE

While granting divorce under the ‘irretrievable breakdown of marriage’ the court considers the following grounds:

  • The parties had been living apart for a period of time.

This ground has some lacuna. It doesn’t specify the time for which parties should live separately to obtain a divorce. The minimum period isn’t set up by the court. In some cases, 14 years is considered the right ground whereas in some cases 3 years is considered sufficient.[6]  The primary factor that the court will always consider is that the parties cannot rekindle their marriage.

  • Commission of adultery by one partner
  • Desertion of one spouse by another
  • One partner finds it unimaginable and impossible to live with another partner

POSITION UNDER MUSLIM PERSONAL LAW

The concept of divorce under Islamic Law arose from interpretations of principles of Muslim Law. [7] The Islamic faith promotes the idea that people should endeavour to keep their marriages intact for as long as possible and should prevent divorce.

  • talaq, ila- Where there is no consummation of marriage for four months, the marriage ends irreversibly.
  • Zihar- Comparison by the husband of his wife with mother/sister. There is no cohabitation between husband and wife for four months, the marriage ends irreversibly.
  • Lian- False charges by the husband against the character of his wife leads to the cessation of the marital relationship between them.
  • talaaq – i – tafweez or khula- Where judicial decree for dissolution of marriage is passed.[8]

CONCLUSION

With great advancement in technology and the impact of western culture in India, the ease of getting a divorce and the social stigma related to it has changed drastically. Unlike in other countries, divorce was taboo till the 1900s in India.

In a case that came up before the Apex Court in India in October 2022, the court expressed its opinion about how people of this generation are treating marriage. The Supreme Court said, “marriage is not a casual thing in India you marry today and you come up before the court and get divorced tomorrow.” [9]

In the cases where lower courts are incapable to grant a divorce by the reason of “irretrievable breakdown of marriage,” the Supreme Court has used its jurisdiction conferred by the Article 142 of the Indian Constitution to deliver justice. Senior Advocate V Giri has also shared his opinion that when divorce isn’t granted under the ground of “irretrievable breakdown of marriage,” it amounts to mental cruelty. [10]

Often incompatibility is raised before the court as a ground for dissolution of marriage. In Naveen Kohli v. Ritu Kohli [11], the proceedings in the divorce petition showed unsympathetic behaviour and desperation of the parties. According to the court, it would be absurd for the law to disregard the fact that a marriage has been permanently destroyed, it would be hurtful to the parties, and there would be no point in extending the married bond once it has reached that point. As mentioned above, marriage has a great sacramental and societal value in India but to keep up with the social advancements, when a marriage is broken beyond all the possible repairs it should be ended without the need of proving the reason and taking consent of other parties.

Author(s) Name: Samridhi Dhir (Chaudhary Charan Singh)

References:

[1] Paras Diwan, Modern Hindu Law (5th Edition, Allahabad Law Agency 2008)

[2]‘Importance and Benefits of Marriage according to Islam’ (Quran Reading,  22 December 2017) <http://www.quranreading.com/blog/importance-and-benefits-of-marriage-according-to-islam/>  accessed 09 January 2023

[3]Durga Prasanna Tripathy v Arundhati Tripathy (2005) 7 SCC 353

[4] Law Commission of India, Hindu Marriage Act 1955-Irretrievable Breakdown of Marriage as a Gound for Divorce (Law Com. No. 71 1978) <https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022080518.pdf> accessed 10 January 2023

[5] Law Commission of India, Irretrievable Breakdown of Marriage – Another Ground for Divorce (Law Com. No. 217 2009) <https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081084-2.pdf> accessed 10 January 2023

[6]  Sandhya Rani v Kalyanram Narayanan (1994) Supp. 2 SCC 58

[7]Setu Gupta, ‘Concept of Divorce under Muslim Law’ (Legal Services India) <https://www.legalserviceindia.com/article/l393-Divorce-under-Muslim-Law.html>   accessed 10 January 2023

[8]Shishir Srivastava, ‘Irretrievable Breakdown of Marriages’ (Legal Services India) <https://www.legalservicesindia.com/article/676/Irretrievable-Breakdown-of-Marriage.html> accessed 10 January 2023.

[9]Rintu Mariam Biju, ‘Marriage Is Not Such A Casual Thing; We Are Not Under Western System Where You Marry Today And Divorce Tomorrow: Supreme Court’ (Live Law, 14 October 2022) <https://www.livelaw.in/top-stories/supreme-court-marriage-divorce-you-marry-today-and-divorce-tomorrow-211609> accessed 10 January 2023

[10] Awstika Das, ‘Refusal To Dissolve Marriage Despite Its Breakdown Amounts To Mental Cruelty: Sr.Ad V Giri Tells Supreme Court’ (Live Law, 30 September 2022) <https://www.livelaw.in/top-stories/supreme-court-irretrievable-breakdown-of-marriage-amounts-to-mental-cruelty-210637> accessed 10 January 2023

[11]Naveen Kohli v Ritu Kohli (2006)AIR  SC 1675