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Expanding Horizons of “Irretrievable Breakdown of Marriage”: A Critical Analysis

INTRODUCTION

The social contract of marriage has been greatly impacted by the complexity of modern life, which is the result of rapidly shifting socioeconomic conditions, the breakdown of the joint family structure, the swift development of industrialization and urbanisation, the academic and professional advancement of women, and laws granting equal status and rights to women. [1]Before a few decades ago, divorce was detested as a sin and there were few grounds for divorce, and it was only requested in extreme cases. But now, circumstances have evolved. The idea of marriage as an eternal connection has waned. In reality, throughout the past several decades, marriage laws have been the subject of significant legislative and judicial action around the world. The laws governing divorce are being significantly changed and liberalised to meet the demands of modern society.

MEANING OF THE TERM “IRRETRIEVABLE BREAKDOWN OF MARRIAGE”

When one or both spouses are unable or unwilling to coexist, their husband-wife connection is destroyed and there is no possibility of them resuming their spousal responsibilities.[2] This is known as an irretrievable breakdown of marriage.

LEGAL BACKGROUND OF IRRETRIEVABLE BREAKDOWN OF MARRIAGE

Even though married couples are living together under the same roof, the laws governing divorce in India as they currently stand do not recognise a circumstance where the marriage is equal to a separation. In other words, there is still no written law for a marriage that has irretrievably broken down. A few reasons for divorce are recognised by Section 13 of the Hindu Marriage Act,1956[3]. However, the supreme court has expressed particular worry about the issue regarding making the irretrievable breakdown of marriage a reason for divorce due to changes in social norms and the evolving status of marriage in society.

LAW COMMISSION REPORT: FOR ENFORCING IRRETRIEVABLE BREAKDOWN OF MARRIAGE AS GROUNDS FOR DIVORCE

The Law Commission of India actively advocated for the inclusion of the breakdown of marriage as a reason for divorce in its 71st report[4]. It states 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 appearance of marriage, but none of the reality… In such circumstances… there is hardly any utility in maintaining the marriage as a façade when the emotional and other bonds which are of the essence of marriage have disappeared.

In light of this, it recommended adding breakdown theory to the list of reasons for divorce, in addition to the existing fault grounds. The marriage would have ended if the parties had lived apart for three years without any hope of getting back together. The report also recommended a few measures to prevent rash divorces. In addition to the Law Commission of India, lawyers, academics, and the courts have argued for the inclusion of this issue in marital laws.[5]

A bill that would have allowed for an irretrievable breakdown as a basis for divorce was presented in 1981, but it was never passed because certain groups believed that dishonest men would forsake their wives and abuse this clause. Again, in the year 2009, the Law Commission suggested adding an irretrievable breakdown of the marriage as a new cause for divorce in its 217th Report[6]. Another Bill was submitted in response to those suggestions and recommendations from the Apex Court: The Marriage Laws (Amendment) Bill from 2010 and the Marriage Laws (Amendment) Bill from 2013.[7]

However, the current legal situation is that no Indian personal law recognises a mere collapse of the marriage as a basis for divorce. However, by Islamic law, a husband has the authority to divorce his wife to acknowledge the breakdown hypothesis. As a matter of legal rights, a Muslim wife may also ask for a divorce, if her husband refuses, she may then file a lawsuit. Numerous instances exist when the marriage was indeed irretrievably shattered, yet the courts were unable to offer the parties any real remedy because of legal technicalities.[8]

However, it is clear that both legislative and judicial tendencies are moving in the direction of designating irretrievable breakdown as a distinct basis for divorce. It is undeniable that under the flawed structure of the law, the parties whose marriage has failed are obliged to cohabit because of a weak legal requirement. No divorce can be obtained if there is no technical fault, and where both sides are at fault the equity theory of “clean hands” may prevent effective redress.

POWER OF SUPREME COURT IN THIS MATTER: WITH THE HELP OF CASE LAWS

Article 142 of the Indian Constitution grants the Supreme Court of India inherent jurisdiction. The Supreme Court of India is given authority under the Indian Constitution to guarantee that there are no jurisdictional issues that prevent the courts from deciding cases fairly amongst the parties that come before them. One such provision is Article 142 of the Indian Constitution[9], which gives the Supreme Court the authority to issue any “Decree or Order”[10] that may be required to ensure that the parties are treated fairly. As per 142, the Supreme Court of India has the authority to pass orders based on equality or to achieve justice even if there is no provision in the law. [11]

“The fact that a marriage has irretrievably broken down has been weighing heavily on judges’ thoughts when they make decisions. In the case of V Bhagat Vs D Bhagat,1994, the Supreme Court noted that irretrievable divorce is not a foundation in and of itself. However, the aforementioned conditions might undoubtedly be kept in mind while examining the evidence on file to assess whether the ground(s) asserted is made out and when assessing the relief to be given. Only in cases where the court determines that doing so is in the party’s best interest can an extraordinary move like the one, we took here be reinstated.”[12]

Similarly, in the case of “Naveen Kohli Vs Neetu Kohli,2006, the Honourable Supreme Court contended vehemently that the Hindu Marriage Act of 1956 should include the irretrievable breakdown of marriage as a reason for divorce. The proposal to include irretrievable breakdown of marriage as a reason for divorce was included in a copy of the judgement that was delivered to the Secretary, Minister of Law and Justice, department of legal affairs, and Government of India. The Marriage Laws (Amendment) Bill, 2013, which was introduced as a result of these proposals, was approved by the Rajya Sabha in August 2013. But it hasn’t yet been made into a law.”[13]

Author(s) Name: Tapashya Bhattacharya (Amity University, Kolkata)

References:

[1] Prof. Kusum, Family Law-I (5th edn, Lexis Nexis,2019) 209

[2] Prof. Kusum, Family Law-I (5th edn, Lexis Nexis,2019) 209

[3] Hindu Marriage Act 1955, s 13

[4] Law Commission of India, The Hindu Marriage Act, 1955- Irretrievable Breakdown of Marriage as a Ground of Divorce (Law Com No 71, 1978)

[5] Swaraj Garg v KM Garg [AIR 1978 D 297]; Jorden Diengdoh v SS Chopra [AIR 1985 SC 935]

[6] Law Commission of India, Irretrievable Breakdown of Marriage – Another Ground for Divorce (Law Com No 217, 2009)

[7] Law Commission of India, Irretrievable Breakdown of Marriage – Another Ground for Divorce (Law Com No 217, 2009)

[8] Dastane v Dastane [AIR 1975 SC 1534]; Gulabrai Sharma Pushpa Devi [1979] ILR 2 (Del) 220

[9] The Constitution of India, Art. 142

[10] The Constitution of India, Art. 142

[11] The Constitution of India, Art. 142

[12] V Bhagat v D Bhagat [AIR 1994 SC 710], p 721

[13] Naveen Kohli v Neelu Kohli [AIR 2006 SC 1675]