Marriage is considered a sacrament union of two individuals. Particularly, in the Indian scenario, it is considered the most pious bond between two individuals that lasts till eternity. It is not merely treated as a civil contract, but as a union for companionship, procreation of life, and conjugal commitments. In earlier times, there were no grounds for the dissolution of marriage as it was considered an irrevocable bond. Marriage was a union that had to be maintained till one’s last breadth and widowed women were not allowed to remarry. In Tikait Munmohinti v Basant Kumar, marriage was considered a union to be continued even in the next world. The severability of marital ties is taken as the last resort in case of matrimonial disputes. Indian Judiciary and Legislature have time and again made efforts to preserve the sanctity of the institution of marriage and save the conjugal relationship.
However, with the passage of time and the growing modernization of Indian culture, divorce came to be recognised as a remedy available for ending a conjugal relationship. Marriage came to be seen as a union developed by mutual respect, compatibility, and affection. It is no more a mere religious tie that cannot be severed at any cost. Rights and duties of both spouses towards each other are treated on an equal footing performance of which is a necessary condition vital to the existence of the matrimonial bond. Divorce implies a permanent segregation of husband and wife with no obligation to perform any marital duties and the freedom to remarry. Keeping in mind the rights of an individual as segregated from the rights of a spouse, the legislature has enacted various grounds on which a spouse can seek divorce. This is how the concept and nature of marriage have evolved in the present times.
THEORIES OF DIVORCE
Presently there are 3 theories of divorce operating in the Indian legal system. These are The Fault ground theory, The Consent theory, and The Supervening Circumstances theory. The underlying rationale behind the fault ground theory is that either party must have committed a matrimonial offense. There must be a fault on the part of the respondent which led to matrimonial discords. It is necessary to prove the guilt or the fault of the respondent in a court of law. Matrimonial offenses include cruelty (physical or mental) towards one spouse, adultery, and desertion. The mutual consent theory is based on the condition that both parties to a marriage mutually consent to end their conjugal relationship. Both spouses file for a decree of nullity of marriage together because they have not been able to live together and have arrived at the decision mutually. The consent of both parties should be fair and free. The supervening circumstances theory is based on the rationale that after the solemnization of marriage, some circumstances happened due to which the marriage of the parties cannot be continued. For instance, if the whereabouts of a spouse has not been known for seven years or more, the other spouse can seek a divorce. There is neither any fault nor consent of either party, but a supervening condition due to which the marriage becomes obsolete.
CONCEPT OF IRRETRIEVABLE BREAKDOWN OF MARRIAGE
A marriage does not necessarily run on the principles of procreation of children, the loyalty of one spouse, or a ‘no fault marriage’. A happy marriage requires the commitment of both spouses, compatibility, and affection towards each other among many other factors. There may be some situations due to which parties to a marriage may not be able to live together or perform their conjugal duties wholeheartedly. The socio-economic advancements and the feeling of maintaining an individual identity apart from the marital relation have led to a lot of liberalization in divorce rules. In the present times, marriage is no more seen as just a societal obligation on individuals, but as a forum where individuals seek a partner for comfort, togetherness, and happiness. Though irretrievable breakdown of marriage is not a ground for divorce under any of the legislations the Supreme Court has held that a marriage can be dissolved if it is emotionally dead, unworkable, and beyond repair. An unhappy spouse should have a ground, based on which he can file for a divorce without blaming or finding fault in her partner. The fault theory may not always work in cases where the parties may want to end their relationship without any fault specified in the laws, finding faults also tends to create bitter feelings among two individuals in case the decree of nullity is not granted. The mutual consent theory may also not work in case one of the parties does not cooperate for establishing the ground for divorce. It leaves the other party with no option, but to continue the conjugal relationship unhappily or unwillingly.
Irretrievable breakdown of a marriage may occur in cases where the differences between spouses make it impossible for them to continue their relationship, where a party may tend to prioritize his/her career or other aspects of life, where parties do not have any mutual feelings left for each other, or where cohabitation between the parties cannot be established with mutual acceptance. Mere cohabitation or ‘no fault’ theory should not be the only parameters of a happy marriage. It is also seen that the children born out of such unhappy marriages are also subject to mental trauma due to the constant arguments and disparities between their parents. The environment of the matrimonial home becomes so surcharged that it is reasonably impossible for either of the parties to a marriage to continue the relationship.
LEGAL POSITION IN INDIA
The Indian legal system does not provide for a ground for divorce on the irretrievable breakdown of a marriage. Various attempts by the judiciary and the legislature to save the marriage at all costs have led to rigid legislation, where divorce is the last resort. However, the development of an irretrievable breakdown of marriage as a ground for divorce will eventually lead to easy disposal of cases and reduce the burden of the judiciary. The Law Commission of India in its 71st report has recommended the legislature to include ‘Irretrievable Breakdown of Marriage’ as a separate ground for divorce under the matrimonial laws. The report also recommended a minimum period of separation of spouses to establish the ground. The Supreme Court in Naveen Kohli v NeeluKohli advised the government to consider incorporating ‘Irretrievable Breakdown of Marriage’ as a separate ground for divorce under the Hindu Marriage Act, 1955.
Some attempts were made by the legislature to include the ground for divorce, but due to constant opposition and debates it never materialized. The opponents hold that the ground will be a tool used by spouses to end their marriages arbitrarily or used to escape their conjugal duties.
NEED OF THE HOUR
In a time where marriage is seen as a union established by the free will, happiness, and mutual compatibility of two individuals, it is necessary to introduce flexibility in the matrimonial laws. An unhappy marriage is futile and more of an obligation on the parties. People now prefer to be independent rather than being tied to a spouse they despise or are unwilling to live with. Financial dependency is no more an impediment for spouses seeking to end their conjugal relations. It will also provide a platform to the parties where they can end their marriage flexibly without having to prove stringent fault grounds or consent grounds. A reasonable period of separation of parties should also be set up to prove the breakdown of a marriage. In a very recent case of R Srinivas Kumar v. R Shametha, the Supreme Court exercised its power under Article 142, by granting divorce to the couple on the same ground. The judiciary has very well acknowledged the existence of irretrievable breakdown of a marriage, it is time for the legislature to acknowledge the same and enact appropriate laws.
Divorce as a matrimonial remedy has evolved, it is no more a taboo or a social stigma that people despise. Marriage should not be governed by societal norms or stipulations, rather it should be based on the interests of the parties involved and their compatibility. Unhappy marriages result in the deterioration of the mental health of the parties, the children born out of it and are reduced to a ‘burden’. Marriages that have lost the sanctity, purpose, and mutual connection are prima facie broken down irretrievably. Therefore, it is important to introduce laws that provide a platform for parties to get out of unhappy, dead, and futile marriages.
Author(s) Name: Keshar Tanwar (Dr. Bhim Rao Ambedkar National Law University, Sonipat)