Marriage in india has always been a subject of great importance and is considered sacramental and mostly obligatory. In fact, in Ancient Indian Hindu society it was considered as a sacred union which lasted not only in this birth but also in the seven births, therefore, bounding them not only till death but even after the death, in the other world. However, Hindu jurists also anticipated that everyone would not be able to uphold the highest standards of morality and faithfulness, therefore divorce, which had been taboo in Hindu culture for more than a thousand years, could no longer be avoided. Eventually divorce was permitted in non-caste Hindus as they were at the bottom of social-cultural hierarchy[1]. Initially divorce was limited to exceptional cases but gradually with introduction of certain legislations, divorce was more accepted than before. Even though some princely states attempted legislation as early as 1920, the Hindu Marriage and Divorce Act of 1955, which gave both wife and husband the same opportunity to separate from each other by proving one of the listed grounds of faults such as adultery, cruelty, etc., was the most significant and effective piece of legislation to come into existence. Such legislations did provide a way for couples to end their marriage yet failed to realise individual autonomy in marriage. Nonetheless, this has also been taken care by the supreme court when recently it recognised irretrievable breakdown of marriage as an additional ground for divorce allowing couples to end their marriage without establishing fault on either party.
This article seeks to examine the newly established ground by the supreme court and its implication. For this purpose, the notion of an irretrievable dissolution of a marriage is first introduced, and it is then discussed in both Indian and international contexts. The necessity and its repercussions will be covered in the next section. The Supreme Court’s ruling is then carefully examined.
II. IRRETRIEVABLE BREAKDOWN OF MARRIAGE
In England, under the terms of the Divorce Reform Act of 1969, the idea of an irretrievable collapse of a marriage was first established as a basis for divorce. While the name is self-explanatory, it encompasses situations when there are irreconcilable disagreements and the marriage has become emotionally dead and hopeless to the point that dissolution of the marriage is the only viable option. Unlike the guilt theory of divorce, the breakdown theory does away with the requirements of innocent and guilty parties for divorce. After mutual agreement divorce was made a requirement in 1976, the genesis for irretrievable breakdown of marriage as a basis for divorce was set up and established. However, it might also be the case where there is absence of such mutual consent but the marriage is still dead or unworkable. Therefore, the need to legitimize this breakdown theory as a ground for divorce has time to time reiterated like when the same was once again enunciated in the Naveen kohli[2] case where it highlighted the limitations of mutual consent as well fault grounds for divorce as mentioned in section 13 and 13B of Hindu Marriage Act.
III. UNDERSTANDING THE NEED FOR THIS GROUND
In India, divorce can be obtained if either party is at fault or both parties agree to end their marriage but is it right to compel the couple to live together when no technical ground can be obtained or why is it always necessary to subject oneself and other spouse to the humiliation of proving fault by other in order to dissolve the marriage. In Dastane v. Dastane[3] , the parties who have been litigating for an decade and half got their judicial separation petition denied on a technicality called condonation. Apparently, any prudent individual will understand that the probability of such parties living together as a married couple is iota. Similar to this, in Mohinder pal v. Kulwant kaur[4], despite the fact that the parties had been apart for twenty-one years, the husband’s motion for judicial separation was denied because it was impossible to prove the other party was at blame. Since there is no likelihood of the parties cohabiting as husband and wife, forcing them to retain the appearance of marriage is neither a practicable nor realistic course of action[5]
In this regard, it is crucial that spouses have the option and capability to end their marriage and separate without having to endure the rigours of the judicial system by demonstrating guilt from nine grounds under Hindu marriage act, 1955.
IV. APPLICATION OF THIS GROUMD IN FOREIGN AND INDIAN LAW
In a number of countries across the world, the breakdown of a marriage has been seen as grounds for divorce.[6] Under Australian family act,1975, irretrievable breakdown is in fact the only ground by which the marriage can be dissolved and also under the Canadian divorce act, 1967-68 completely breaking down of marriage is clearly recognised as a ground, apart from the normal fault grounds of divorce like adultery, cruelty, bigamy etc[7]. The United States is another such country that recognises this ground suitable for marriage. Most of its states have some form of no-fault divorce law allowing the parties to seek divorce solely on the grounds that the marriage is no more workable or irretrievably broken. It can therefore be said that these countries understand that marriage which has stopped to exist de facto should also stop to exist in law for maintaining the interests of the parties involved. But in india where society looks marriage as a sacrament, the very idea of dissolving marriage by the couple without any solid reason is hard to get with but in today’s time when the supreme court gave the historic verdict of recognising irreversible breaking down of marriage as a ground, it underwent a significant journey leading to this final decision. In india, there is inconsistency of opinion in regard to recognising irreversible breakdown of marriage. For instance, in the case of Shyam Sunder Kohli v. Sushma Kohli [8]while taking a regressive step applied fault doctrine where the marriage was completely broken down and refused to grant divorce but then in the case of Naveen kohli v. Neelu kohli , irretrievable breakdown of marriage as a ground was recognised by the supreme court as their relationship and sacred union had turned bitter and there were accusations of cruelty, adultery from both the sides making it evident that the marriage has been irreparably broken. Also, the law commission in its 71st report dated April 7th, 1978 clearly stated that the restriction of divorce grounds to a particular offense caused injustice to the parties who were unable to live together as spouses despite imposing any matrimonial fault on each other.[9] Therefore, it is evident that the position of irretrievable breakdown as a ground for divorce until now was very vague and ambiguous. Hence supreme court verdict is a welcoming step in this regard.
A constitution bench of the supreme court in the case of Shilpa Sailesh v Varun Sreenivasan [10]has held that under its power to do ‘complete justice’ granted under article 142 of the constitution[11],it can dissolve the marriage on the ground that it dissolve the marriage on the grounds that it is no longer workable and has in fact irreversibly broken down though this ground is not statutorily recognised yet and also held it can renounce the 6–8 month waiting time that Section 13-B of the Hindu Marriage Act of 1955 specifies must pass before a divorce may be obtained via mutual consent.[12]. As per section 13-B of the Hindu Marriage Act, before parties could make the second motion, they had to wait a minimum for the period of six months and a maximum of 18 months. The legislature imposed this cooling-off time in order to give the parties an opportunity to reflect and reconsider their decision. Therefore, the court has the discretion to dissolve the marriage by passing a decree without being bound by procedural requirement to move the second motion. The court also listed certain factors like time the parties lived together after marriage, when parties last cohabited, allegations made by the parties against each other, order passed in legal proceedings, attempts made to settle disputes by court intervention to consider before it can dissolve the marriage on the ground of irretrievable breakdown though it is an illustrative list of factors. This verdict opens an opportunity for the parties to have a speedy solution when they are unable to live together as a couple and also bypass the waiving period reserving their energy to go through the cumbersome process to seek divorce. But this judgement in no way implies that people can rush straight to SC for divorce as granting divorce on this ground is not a matter of right that can be exercise, rather it is more like a discretion and therefore parties cannot file a writ petition under article 32 or article 226 to seek relief of dissolution of marriage [13]. The bench also highlighted the need to move away from the ‘fault theory’ and ‘accusatorial principle of divorce’ under Section 13(1) of Hindu Marriage act, 1955 which prescribes that for divorce one of spouse be guilty of certain misdeeds such as cruelty, adultery and so on.
VI. CONCLUSION
Marriage is no longer regarded as an inseparable connection in light of the changing and rapidly evolving views of marriage in the wake of the emergence of liberal philosophy, equal position for both sexes, and intellectual awareness in this country. Marriage is a relationship that rests on mutual respect, affection and once the very foundation of such relationship weakens, it is bound to crumble and collapse. It is therefore in the consideration of these things that when a marriage is completely broken down or dead or unworkable the courts should accelerate the legal separation between the couples too. The court also referred to the opinion of Salmond, who stated that if a marriage stop to exist de facto then it should also stop to exist in law and this shall be in the interests of not only the parties involved but also in the interests of the public[14]. Thus, on the premise that there is no useful purpose served by continuing such a marriage, the supreme court gave its landmark judgement based on irreversible breakdown theory instead of the fault theory. Therefore, a change in the attitude of the judiciary can be seen from this judgement as it moves from the fault or guilt theory to broken down theory. Therefore, beyond a shadow of doubt it can be said that this decision will undoubtedly assist distressed couples in burying their dead marriage with the greatest respect and the least amount of mudslinging.
[1]Agrawala and R.K, “Changing Basis of Divorce and the Hindu Law” 14(3) Journal of the Indian Law Institute 431-442 (1972) http://www.jstor.org/stable/43950149
[2] Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558
[3] A.I.R, 1975 S.C. 1534.
[4] A.I.R, 1976 Delhi 141
[5] Observed in the case of Ram Kohli v Gopal Das, (1971)I.L.R. 1 Delhi 6(F.B)
[6] Countries include Russia, New Zealand, USA, Australia, South Wales and Canada
[7] Saigal, Uttara Gharpure, et.al., “Naveen Kohli v. Neelu Kohli, (2006) 4 S.C.C. 558” 18(2) Student Bar Review 113-24 (2006).http://www.jstor.org/stable/44306659
[8] A.I.R, 2004 S.C. 5111
[9] Law Commission of India, “71ST Report On Irretrievable Breakdown of Marriage as a ground of Divorce” (April,1978)
[10] (2016) 16 SCC 352
[11] Art. 142 of the constitution of india says about enforcement of decrees and orders of Supreme court and orders as to discovery, etc. It reads:
- The supreme court in the exercise of its jurisdiction may pass such decree or make such order necessary for doing complete justice in any cause or matter pending before it and any decree so passed or order so made shall be enforceable throughout the territory of india in such manner as prescribed by or under any law made by parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe
- Subject to the provisions of any law made in this behalf by Parliament, the Supreme court shall, as respects the whole of the territory of india, have all and every power to pass any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt itself.
[12] Irretrievable Breakdown of Marriage’ A Ground To Dissolve Marriage Invoking Article 142 Powers : Supreme Court, available at https://www.livelaw.in/top-stories/irretrievable-breakdown-of-marriage-a-ground-to-dissolve-marriage-invoking-article-142-powers-supreme-court-227617 (last visited on May 23,2023)
[13] In accordance of view taken in Poonam v. Sumit Tanwar, (2010) 4 SCC 460(para 41)
[14] Supra note 8
Author: Sukhman Boparai
Juris Centre 