Irretrievable Breakdown of Marriage in a wide perspective

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31-03-2022

Marriage may be a sacred institution and it's the very foundation of a stable family and civilized society. Under Hindu Law, marriage is thought to be a sacrament that is eternal and indissoluble. But there's also an idea of divorce in Hindu law. The term ‘divorce’ comes from the Latin word ‘divortium’ which suggests showing aside; to separate. it's the legal cessation of a matrimonial bond. Derrett in one of all his studies remarked that- “Divorce was introduced into Hindu Law for the protection of helpless women once they were ill-treated. it had never been Parliament’s intention to relinquish husbands' matrimonial variety at their option goodbye as they may remain a pleader”. Not until some decades back, divorce was abhorred as evil; the grounds for divorce were very limited and it had been sought only under compelling circumstances. Things have, however, changed now and marriage isn't any longer viewed as an indissoluble union. In view of the wants of fixing times, divorce laws are substantially liberalized. The Hindu Marriage Act, of 1955 revolutionized the matrimonial laws and provided for divorce on several grounds. Initially, the grounds were supported by fault on a part of the respondent. Later the idea of breakdown was further advanced by an amendment in s. 13 cls. (viii) and (ix) in 1964 and in 1976 divorce by mutual consent was introduced. Thus over the years, the Indian legislature has attempted to introduce the irretrievable breakdown of marriage as a ground for divorce per the changing needs of the society. However, discussions and deliberations for a few years haven't led to any consensus on whether an irretrievable breakdown of marriage as a ground for divorce should be introduced or not.

Origins of Irretrievable Breakdown Theory of Marriage

The concept of Irretrievable breakdown of marriage was for the primary time introduced in New Zealand where it absolutely was recognized that it needn’t be necessary for there to be some fault or other for a spouse to need to cop out of a wedding and hence the law must recognize and cater to its requirement. The primary divorce on the grounds of an irretrievable breakdown of marriage was granted by the court in New Zealand in 1921. The Court held that “when matrimonial relations have ceased to exist, it's not within the interests of the parties nor within the interest of the general public to stay the person and woman bound as husband and wife in law”. Then in England, it had been the case of Masarati v. Masarati that introduced the idea of breakdown and also the 1943 House of Lord decision within the case of Blunt v. Blunt made it increasingly accepted that no public interest was served by keeping legally alive a wedding which had after all lessened.

From the Indian context, The Law Commission of India, in its seventy-first report recommended the introduction of an irretrievable breakdown of marriage as a ground for divorce. in keeping with the report- “Restricting the bottom of divorce to a specific offense or matrimonial disability causes injustice in those cases where the case is such although none of the parties is guilty, or the fault is of such nature that the parties to the wedding can't be worked. In such circumstances, there's hardly any utility in maintaining the wedding as a façade, when the emotional and other bonds which are of the essence of marriage have disappeared.” Then in 1981, a bill was introduced providing for an irretrievable breakdown of marriage as a ground for dissolution of the wedding but it didn't get through as some groups felt that unscrupulous husbands would desert their wives and profit from this provision. In 2009 another time, the Law Commission of India vide its 217th Report, recommended the incorporation of irretrievable breakdown of the wedding as another ground for divorce. Pursuant to it and Apex court recommendations, another bill was introduced- the wedding Laws (Amendment) Bill 2010 so the wedding Laws (Amendment) Bill, 2013. However, the statutory provision as it stands today is that a straightforward breakdown of the wedding as such is not grounds for divorce under any of the non-public laws in India. Thus, there are innumerable cases where the wedding was after all utterly broken, but the courts tied down by the technicalities of the law, couldn't give any meaningful relief to the parties. it's evident however that legislative likewise as judicial trends are heading towards the introduction of irretrievable breakdown as a particular ground for divorce.

Also read: Extradition law in India

The ideological emphasis of the Irretrievable Breakdown Theory of Marriage.

According to the legal definition, the Irretrievable breakdown theory of law may be defined as-

“The situation that exists when either or both spouses aren't any longer able or willing to measure with one another, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties.” The Irretrievable breakdown of marriage is the most controversial theory in legal Jurisprudence. Marriage is the union of two persons which is predicated on love and affection and respect for every other. If any of those is hampered thanks to any reasons or if there's a failure within the matrimonial relationship between the spouses that reaches to such an extent that both the spouses are not any longer willing to measure with one another peacefully then it's better to dissolve such a dead relationship which exists only in name only not essentially.

This means that if the couple can not live together as husband and wife then they need to sway the court that the wedding broke down and there's no reasonable chance of cohabitation. Although the Hindu Marriage Act in Section 13 recognizes few grounds for the dissolution of marriage the irretrievable breakdown of marriage isn't a ground for divorce under the Hindu Marriage Act, 1955. The Supreme Court in its various landmark cases has shown its concern about creating an irretrievable breakdown of marriage as a ground for divorce. But, ultimately it's for the legislature to choose whether to incorporate the irretrievable breakdown of marriage as a ground for divorce or not but the legislature must consider the irretrievable breakdown of marriage as a ground to grant a divorce under the Hindu Marriage Act, 1955.

Pros and Cons of Irretrievable Breakdown of Marriage

The Irretrievable breakdown of marriage has its own merits yet demerits. Marriage is taken into account to be a sacramental institution that relies on respect, truth, and love towards one another. If the matrimonial relationship results in a failure where parties develop a strong hatred for each other and aren't willing to measure with one another there's no point in stretching such a dead relationship. Therefore, in order to safeguard the 000 sanctity of marriage and to scale back the number of unhappy marriages, to stop from getting wasted the valuable years of the spouses, it's better to dissolve such marriages. One of the foremost vital aspects of this theory is that the wedding Law Amendment Bill, 2010 provides an advantage to the ladies. In keeping with the amendment the wife can oppose a husband's plea for divorce but the husband will have no such right to oppose. Another merit of this theory is that the wedding Laws (Amendment) Bill, 2010 provides the wife and kids a clearly-defined share within the husband’s immovable property just in case of divorce.

The idea also has some further cons. The Law Commission of India in its 71st report has stated two strong opposition referring to the demerit of this theory.

Firstly it stated that if the irretrievable breakdown of marriage is created as a ground for divorce then it'll make the divorce easy and therefore the sanctity of the wedding in India will get easily destroyed. Secondly, it stated that it'll allow the guilty spouse to dissolve the wedding out of his own pleasure and he/she will take the advantage of his own fault by dissolving the wedding.

Another demerit of this theory is that if the irretrievable breakdown of marriage is introduced as a ground for divorce in India there are chances of increased divorce rates in India, especially for women being a victim within the case.

Judicial Attitude

Even though the irretrievable breakdown of marriage has not been stated under Section 13 of the Hindu Marriage Act, 1955 as a ground for divorce, there are many judgments that gave decisions that supported the principle. To further understand the scope of the model, a few landmark case laws are discussed:

In the case of V. Bhagat v. D. Bhagat, the Supreme Court observed: “We reach this conclusion of granting divorce with none mental compunction because it's evident that for whatever be the explanations, this marriage has attenuated and also the parties can now not live together as husband and wife; if such is that the situation it's better to shut the chapter.”

In the case of Sanghamitra Singh v. Kailash Chandra Singh, a husband sought a divorce. The wife informed the court that the husband had already clandestinely married another lady and a criminal case had already been filed against him. Granting the divorce, the court observed: “Whether the husband has married for a second time or not, it's not clear that the wedding has irretrievably countermined and none of the parties wants restoration of marital ties. Accordingly, by applying the doctrine of ‘irretrievable breakdown’, we grant a decree of divorce upon the consent of both the parties.” Likewise, the case of Amma Khatoon v. Kashim Ansari was a case under the Dissolution of Muslim Marriages Act, 1939 where the Jharkhand tribunal dissolved a wedding on grounds of irretrievable breakdown of the marriage by invoking s. 2(ix) of the Act, i.e ‘any other ground which is recognized as valid for the dissolution of marriages under Muslim Law.”

The argument of irretrievable breakdown, however, didn't find favor with the Calcutta court in Swapan Kumar Ganguly v. Smiritikana Ganguly as in keeping with the court, the state of being a partner and not a divorcee or spinster by itself may be a great protection to a lady in our society and this fact can't be overlooked even where parties admittedly cannot live together.

A judgment that is incredibly significant during this context is Naveen Kohli v. Neelu Kohli. The Supreme Court made a robust plea for incorporating irretrievable marriages as a ground for divorce under the Hindu Marriage Act, 1955. The husband filed a petition for divorce on the grounds of cruelty making several allegations against the wife; the wife too made several allegations and also criminal complaints against the husband. The court at Kanpur granted the decree. Against this the wife filed an appeal before the Division Bench of the Allahabad tribunal which put aside the divorce decree; thereupon the husband filed a special leave petition under Article 136 of the Constitution of India. The court after analyzing in great detail the facts and circumstances of the case held that- “Once the marriage has lessened beyond repair, it might be unrealistic for the law to not notice the actual fact and it'd be harmful to society and injurious to the interest of the parties.”

So, when a “Wedlock becomes deadlock” the court analyses the case, and if the circumstances move to such an extent that the wedding is beyond repair then accordingly the court grants dissolution of marriage supporting the concept of breakdown theory. However irretrievable breakdown of marriage has not been inducted as a ground for divorce within the Indian legal context but if the future it's incorporated into law then it should be hedged with sufficient safeguards and applied with the utmost discretion.

Conclusion

Divorce laws are being continually liberalized to satisfy the wants of fixing times and facilitate the liberation of spouses living in an unworkable relationship. Mutual consent may be a major step in this direction but seldom even when a wedding has utterly broken, one among the spouses might withhold consent to a mutual divorce. Jurists, academicians, and courts, similarly because the Law Commission of India have recommended that the irretrievable breakdown of marriage be made a ground for divorce. Of late, courts are inclined to dissolve a wedding where there appears to be no chance of the parties living happily within the relationship. But, Irretrievable breakdown intrinsically, however, isn't enough and courts invoke a statutory ‘ground’ and visible the cumulative facts, granting relief to the parties. In fact, the Supreme Court in its various judgments has recommended the inclusion of irretrievable breakdown as a ground for divorce but such a law is in the offing now. So, it will be finally concluded that an irretrievable breakdown of marriage should be recognized as a ground for divorce in India. The grounds when introduced must provide safeguards to confirm that it's not misused and no party is exploited.

Also read: Court Marriage Procedure in India