Author: Valusa Abhigna, BBA.LL.B, 2nd year student at Amity University, Mumbai
Tolerance, adaptation, and respect for one another are the foundations of a healthy marriage. Tolerance for each other’s shortcomings must be inherent in every union to some extent. Petty squabbles and minor differences do not need to be exacerbated and magnified in order to derail what is believed to have been created in heaven. The nine quarrels must be weighed from that viewpoint in assessing what constitutes cruelty in any given situation, taking into consideration the individuals’ physical and emotional circumstances, temperament, and social status. A compromise that is too modern and sensitive would be detrimental to the institution of marriage.
What is an Irretrievable Breakdown of Marriage?
This expression means that the pair will no longer cohabitate as husband and wife. Either one or both spouses have to demonstrate to the court that the union has broken down so deeply that there is no fair hope of reconciliation. Until now, India’s divorce laws have not observed a case, in which the couple faces a situation in which, considering the fact that they live under the same roof, their union is equal to a split.
There is also no codified rule for irretrievable marital dissolution. Section 13 of the Hindu Marriage Act recognizes only a few grounds for divorce. However, with shifting social values, norms and the changing principles related to marriage in society, the Supreme Court has expressed particular concern over making irretrievable dissolution of marriage a basis for divorce.
The Supreme Court has ordered the dissolution of marriage in order to do complete justice and shorten the agony of the parties involved in a long-drawn battle. Indeed, these were rare cases, since the statute does not explicitly allow for the termination of marriage on grounds other than those stated in the Hindu Marriage Act, 1955. Under the Hindu Marriage Act, 1955 irretrievable dissolution of marriage is not a basis for divorce. Circumstances have tremendously changed and to cover a large number of cases where marriages are virtually dead, divorce cannot be granted unless this concept is pressed into service.
It is ultimately up to the Legislature to decide whether to include irretrievable breakdown of marriage as a ground for divorce or not, but in our opinion, the Legislature should consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955.
Examples of facts that the court will consider as confirmation of irreversible breakdown:
- For a while, the pair did not live together as husband and wife.
- One partner had intimate affairs with another male, and as a result, the other partner finds it difficult to continue living together as husband and wife.
- One of the partners is in jail after being labeled a “habitual terrorist.” (This means he or she continues to commit offences and was sentenced to 10-15 years in jail as a result.)
- One companion abandoned the other.
- One partner manipulated the other; for example, the husband proceeds to harass his wife.
- Either of the partner is either an alcoholic or a heroin addict.
- The lovers no longer love each other because they are too different or married when they were too young. For whatever cause, one of the couples finds it difficult to work together as husband and wife.
The Supreme Court found such cases in A. Jayachandra v. Aneel Kaur. After deliberating on the facts, the Court ruled as follows: “When the respondent prioritizes her career over her husband’s rights, it points unmistakably to disharmony, diffusion, and disintegration of marital unity, from which the Court will deduce irretrievable breakup of marriage.” The Court ruled that the union was irretrievably broken down and awarded the husband divorce. This is surprising, since under comparable cases, the court has often called for the restoration of conjugal rights, citing the notion of a Hindu marriage as sacrosanct as the very basis of the decree for restitution.
The declaration of irretrievable dissolution of marriage is often dependent on agreement, as it plays a significant part in the event of a legal marriage. Since consent is granted primarily at the time of marriage, it follows that if either or both parties feel the marriage has broken down, they will sue for divorce. When all parties accept that the marriage has ended, they will seek divorce by “mutual consent.” When any one of the parties agrees that the marriage is ending, it is permissible for that party to demand divorce on the grounds that the marriage has failed, considering the reluctance of the other party to terminate the relationship.
However, with the exception of Islamic law, no statute lists irretrievable dissolution of marriage as a particular basis for divorce. There are five major questions about including the irretrievable dissolution of marriage into the divorce code. They are as follows:
- In our culture, the marriage bond is held in high regard, which would be undermined if this basis for divorce were available.
- Divorce holds a social stigma, especially for the wife;
- this ground allows husbands to end a marital partnership at any time;
- This ground may be abused by an errant husband; and the intangible aspects remain in the understanding of irretrievability and breakup.
Recognizing irreversible dissolution of marriage as a basis for divorce necessitates abandoning our beliefs about the sanctity of the marriage partnership. The sanctity of such a relationship stems from the extraordinary sharing and trust that such a relationship entails, and cannot be maintained on outward conceptions of solidarity and duty. Linked to this is the problem of shame, which we must resolve in order to fix the dependencies that arise from those relationships. This would be very beneficial in restoring the woman’s trust.
The last three objections should be answered simultaneously by including sufficient provisions in the land for irretrievable breakup, introducing analytical elements that assess whether there is an irretrievable breakdown, and requiring ancillary problems in the marital arrangement to be settled as a prerequisite for granting divorce. This will entail financial assistance for the spouse and baby, provisions for child custody, division of the spouses’ belongings, and so on. If the partner filing for divorce has done something wrong, this may be a factor in deciding how much custody is awarded to the other spouse. Although this ground will seem to be an appealing and simple choice, the inclusion of rational variables to decide breakdown would ensure that this ground is not chosen on a whim or on an instinct.
Why Irretrievable Breakdown?
The legal basis for using irreversible marital dissolution as a foundation for divorce is now well accepted among lawyers and judges. Restricting the basis for divorce to a single crime or matrimonial disability creates discrimination in situations when, notwithstanding the fact that no side is at fault, or the fault is of such a sort that the parties to the union do not want to reveal it, a condition has arisen in which the marriage cannot be worked; that is, where the marriage has all externals.
When the emotional and other bounds that are the essence of marriage have vanished, there is no use in preserving the marriage as a façade. There is no excuse to refuse divorce after the union has ceased to exist in substance and fact. In this case, only the parties will determine if their shared partnership is emotionally and socially true and solid. Divorce can be seen as a solution to a complicated problem. Such a divorce should not be concerned with the wrongs of the past, but rather with getting the parties and children to terms with the current situation and changes by deciding the most suitable basis on which they will control their relationship in the evolving scenario.
One of the reasons that can contribute to an inevitable breakup is when the husband and wife have been living apart for a prolonged period of time. Living apart, on the other hand, may be the last symptom of permanent breakup. As a result, the parties’ assertion that there has been an irreversible dissolution of marriage is insufficient. Such an allegation must be supported, and the fact that the parties to a marriage have not been together for a prolonged amount of time should be taken as observable presumptive evidence of marriage breakup.
This Court upheld and took the view in Sandhya Rani v. Kalyanram Narayanan, stated in (1994) Supp. 2 SCC 588, that because the parties have been residing separately for more than three years, we have no doubt that the union between the parties has irretrievably broken down. They have no intention of ever being together. As a result, in those circumstances, the Court grants the divorce order.
Matrimonial problems are fragile individual and relational relationships. It necessitates reciprocal confidence, regard, reverence, passion, and intimacy, as well as enough play to allow for fair changes with the partner. The partnership must also stick to social norms. Matrimonial behaviour is now regulated by laws drafted with certain standards and modified social order in mind. It is tried to be regulated in the interest of individuals as well as in a wider context, for controlling matrimonial norms in order to create a well-knit, balanced community rather than a disturbed and porous society. Love is a vital structure with a significant role to play in society as a whole. As a result, it would be inappropriate to use any submission of “irretrievably fractured engagement” as a straitjacket formula for granting divorce relief. This factor must be considered in the light of the case’s other facts and circumstances.
71st Report of The Law Commission Of India (1978)
The Law Commission addressed the concept of irretrievable dissolution of marriage in its 71st article, which was submitted in 1978. The article addresses a significant topic surrounding the Hindu Marriage Act of 1955.
Law Commission Recommendations & Its Impact
In Chapter 6 of its 71st report, the Law Commission of India identified the circumstances in which courts can assume de facto that marriage has irretrievably broken down. The below are the circumstances:
(1) Breakup arrangement reached between two married couples.
(2) ‘Not cohabiting’ may be ample evidence of an irreversible dissolution of marriage.
(3) Separation of partners for more than five years should suffice as evidence.
(4) Continuous separate living of spouses during prime time of youth, and willingness of one not to come together is ample evidence.
(5) After a sustained split resulting from a rift and no claim for conjugal rights from either side is filed within a year, “separation” should be considered a conducive ground for irretrievable dissolution of marriage.
(6) Prolonged isolation for more than a year, with suspicion of wrongdoing on either side, psychiatric or physical cruelty resulting from entry. The discovery of either spouse’s cheating covering premarital illicit relationship makes their life together difficult.
(7) Where a case for legal separation, divorce, or restoration of conjugal rights has been pending for three years and no side has attempted to resolve the conflict or agreement.
(8) In certain cases, a clear submission by the partner that he or she cannot work together is necessary.
As a result, the commission has recommended enacting Section 13C, “Divorce on the Basis of Irretrievable Breakdown of Marriage,” which reads as follows:
(1) Any party to a marriage can file a petition for dissolution of marriage with the court if the marriage has irretrievably broken down.
(2) The court hearing such a petition shall not declare the marriage irretrievably dissolved until it is satisfied that the parties to the marriage have lived apart for a sustained term of three years immediately preceding the filing of the petition.
(3) If the court is satisfied, on the facts, as to the fact stated in sub-section
(2), then, until it is satisfied on all evidences that the marriage has not broken down irretrievably, it shall issue a divorce decree, according to the provisions of this act.
(4) In determining whether the period during which the parties to a marriage have lived apart has been continuous for the purposes of sub-section (2), no account shall be taken of any one period (not exceeding three months in total) during which the parties resumed living with each other, but no period during which the parties lived with each other shall count as part of the period during which the parties to a marriage have lived apart.
(5) For the purposes of subsections (2) and (4), the husband and wife shall be considered as living separately because they are living with each other in the same household, and references to the parties to a marriage living with each other in this clause shall be construed as references to their living with each other in the same household.
All else remains the same, apart from the truth that: reimbursement for conjugal benefits, judicial division, and divorce are now available solutions.
(i) The separation time has been increased from one year to three years.
(ii) When measuring the continuous duration of separation for three years, the period during which they lived together (only if they tried to restart their marriage within this three-year period) would not be included. If this effort fails and they are split again, the time after three months from the day they were separated will be considered.
Impact Of The Recommendations
The following are the main consequences if the proposed amendment to the Hindu Marriage Act, 1955 were adopted in its current form:
For starters, the idea of marriage will lose its sacredness. Dissolving a marriage will be a piece of cake for any side, and divorce will be granted based on small and irrelevant problems. In short, it would contribute to the dissolution of the whole matrimonial system in the world, as well as promote and legalize extremely immoral activities such as adultery.
Second, since there is no need for some kind of formalities, such as: in case of restitution for conjugal rights, only the aggrieved party can approach the court for the decree, in case of judicial separation and divorce (on fault grounds), only the innocent party may approach the court, and finally for divorce on mutual grounds, on the mutual consent of the parties, all existing remedies would lose credibility and would be rendered ineffective.
As the purpose of sanctions of every penal scheme is to instil terror in people and discourage them from committing crime, the purpose of divorce theories is to strengthen the institution of marriage by instilling fear in couples that once you are tied in a bind, it will be difficult to get out of it. As a result, partners attempt to sustain a relationship as much as possible, but once it becomes difficult to avoid the union by whatever way, the marriage is considered irretrievably broken down.
The ground of irretrievable breakdown of marriage is significant, but not in the way that has been suggested. The aim of this hypothesis, like other theories, is to protect the institution of marriage and not to turn it into a game that can be played by anybody at any moment.
There is a need to include the ground of irretrievable dissolution of marriage in current legislation, but not as a separate special ground, but rather as a solution for the gaps in the modern divorce scheme. As a result, the following are proposals for how the land can be incorporated into the current law:
(1) If either one of the couples refuses to sign, it becomes very impossible for the parties to seek a divorce settlement or for the courts to issue a divorce decree. The latest case of Naveen Kohli v Neelu Kohli is a textbook example of such a scenario.
As a consequence, in those circumstances, the ground of irretrievable dissolution of marriage is required, where the court is convinced on the grounds of the facts of the case that the marriage has reached a point that it is almost difficult to keep the parties from separating, the declaration of divorce is issued regardless of whether the consent of the other party has been withheld.
(2) According to fault principle, a divorce order cannot be issued if the other spouse (the party making the claim against the other party) is still found to be guilty of any of the matrimonial offences.
As a consequence, in those situations, where the union between the partners has absolutely broken down, as shown by the conduct of both parties, the divorce should be granted on the grounds of irretrievable dissolution of marriage.
(3) Under the same fault principle, courts are often unable to grant divorce decrees due to procedural complications, as in the case of Vinita Saxena v Pankaj Pandit.
As a consequence, in those cases, the court should be allowed to issue a divorce order based on the irretrievable breakup principle of divorce.
As a consequence, rather than being a distinct basis of divorce, as proposed in section 13C, it must be incorporated in existing law by amending the applicable parts (for grounds discussed above).