Divorce: Making of a new legislation
The Marriage Laws (Amendment) Bill, 2010, to be enacted by Parliament shortly, providing for divorce on the ground of irretrievable breakdown of marriage is a historic piece of legislation. While it needs to have adequate safeguards, it is time to have family courts in all district headquarters for adjudicating various kinds of matrimonial disputes
Justice A.R. Lakshmanan (retd)
THE Marriage Laws (Amendment) Bill, 2010, seeks to amend the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, to provide irretrievable breakdown of marriage as a ground for divorce. It comes more than a year after the recommendation of the Law Commission of India (then headed by this writer) in its 217th report in March 2009.
The Law Commission suo motu took up the issue, examined the extant legislations and a number of judgments of the Supreme Court and high courts and was of the view that “irretrievable break-down of marriage”should be incorporated as another ground for granting divorce under the provisions of the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
Wherever the question of inclusion of irretrievable breakdown of marriage as a ground for divorce is mooted, the opponents argue that “divorce by mutual consent” introduced in the Hindu Marriage Act in 1976 more than covers the situation. “Mutual consent” requires both parties’ consent and if one or the other does not cooperate, the said ground is not available.
“Irretrievable breakdown of marriage”, however, is a ground which the court can examine and if it infers, on the facts of the case, that the marriage cannot be repaired/ saved, divorce can be granted. The grant of divorce is not dependent on the volition of the parties, but on the court’s inference on the facts pleaded that the marriage has irretrievably broken down.
The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated to destroy a marraige. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and always keeping in view the physical and mental condition of the parties, their character and social status. A too technical and hypersensitive approach would be counter-productive to the institution of marriage. The courts do not have to deal with ideal husbands and ideal wives. They have to deal with particular men and women before them.
There is no use of keeping two persons tied by the matrimonial relationship when they cannot live peacefully. Where wedlock has become a deadlock since parties are living separately, and after marriage the wife has lived only for a few months in the matrimonial home, wife having made allegations of cruelty and desertion against the husband and husband having made counter-allegations against her, the court in Krishna vs Som Nath case has held that marriage is irretrievably broken and it is in the interest of justice that a decree of divorce be granted, so that both the parties can live in peace.
In Vinita Saxena vs Pankaj Pandit case, it has been held that the marriage between Vinita Saxena and her husband Pankaj Pandit was dissolved by an order of the Supreme Court. The marriage between the parties lasted only for five months. Both of them were living separately for over 13 years. Marriage also was not consummated. The wife filed a petition for the dissolution of marriage on grounds of physical and mental cruelty and insanity on the part of the husband. The trial court dismissed the petition. The high court also dismissed the appeal.
Allowing the wife’s appeal, a Supreme Court Division Bench, speaking through the writer of this article (as he was the Supreme Court Judge then) held that the orders of the courts below had resulted in grave miscarriage of justice to the wife who had been constrained into living with a dead relationship for over 13 years and that the fact situation clearly showed that the husband and wife can never ever stay as husband and wife and the wife’s stay with the respondent husband would be injurious to her health. Accordingly, a decree of divorce was granted in favour of the wife against the husband.
Further, all such matters as foresight, desires, wishes, intention, motives, perception, obtuseness, persistence and indifference would remain relevant, but merely as a matter of evidence bearing upon the requirement to act reasonably or as aggravation of the matters charged.
Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take note of that fact and it would be harmful to society and injurious to the interest of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage.
Public interest demands not only that the married status should as long as possible be maintained, where a marriage has been wrecked beyond the hope of salvage, but also lies in recognising that fact.
The court’s power to grant divorce on the ground of irretrievable breakdown of marriage should be exercised with much care and caution in exceptional circumstances only in the interest of both the parties. There is no use of keeping two persons tied by the matrimonial relationship when they cannot live peacefully.
A balance needs to be maintained between protecting the sanctity of the institution of marriage and the individual interests of aggrieved spouses. True, in India which is deeply embedded by moral and cultural values, emulation of Western principles in matrimonial matters is not appreciable and should not be adapted with ease.
The new Bill should have adequate safeguards. The courts may consider the following factors for granting divorce once it is brought on the statute book: Age of the spouses; duration of stay in matrimonial home; non-consummation of marriage between the parties; long period of stay from each other; both parties crossed the point of no return; workable solution not in sight; waging of legal battle for a longer period; consideration of educational qualification of the spouses; and welfare of children and providing for their care.
There is an urgent need to set up family courts in every district for adjudicating all kinds of matrimonial disputes. Sadly, even after 26 years of enactment of The Family Courts Act, 1984, only a miniscule number of such courts have been set up, that too, only in metropolitan cities. There must be marriage and divorce laws not only among Hindus, but also for Muslims, Christians, Parsis and other religious denominations in line with contemporary practices of younger generations who receive higher education and have more cosmopolitan ideas of the new world.
Times have changed and the people must move ahead. Harmony at home and peace at work is the most important ingredient of successful Indians in the 21st century.
The writer is a former Judge, Supreme Court of India and Chairman, Law Commission of India.
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