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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
COVER STORY
MADE IN HEAVEN, CELEBRATED ON EARTH
BROKEN IN COURT
Marriage Laws (Amendment) Bill, 2010
Hemant Kumar, Advocate

When wedlock becomes a deadlock, law cannot turn a blind eye to breakdown of marriage. At such stage, it isn't wise for the courts to refuse divorce to a spouse and ask him to live with a dead marriage merely because it is the wish of the Almighty.

On June 10, 2010 the Union Cabinet approved the introduction of a Bill, namely, the Marriage Laws (Amendment) Bill, 2010 in coming monsoon session of Parliament to further amend the Hindu Marriage Act, 1955 (HMA) and Special Marriage Act, 1954 to provide therein "Irretrievable Breakdown of Marriage (IBM)" as a ground of divorce.

The long overdue move comes more than a year after the previous Law Commission of India then headed by Dr. Justice AR Lakshmanan in its 217 th Report (March 2009) strongly recommended for the same. The Report in addition to suggesting immediate action by the government for the enactment of the same also laid down that a Court before granting a decree of divorce on aforesaid ground should also examine whether adequate financial arrangements have been made for the parties and the children.

It also merits reference that way back in 1981, a similar attempt was also made by introduction of Marriage Laws (Amendment) Bill, 1981 but in vain. Actually, the blue print of such legislation was first of all recommended in the 71 st Report of the Eighth Law Commission of India (1978) then headed by renowned Supreme Court Judge Justice HR Khanna. This Commission which even invited views on the matter by issuing a questionnaire, also suggested many safeguards like welfare of children and other hardships. It recommended amendments to sections 21A, 23(1)(a) as well as insertion of new sections 13C,13D and 13E in HMA.

The Irretrievable Breakdown of a Marriage, a concept first recognized in New Zealand Divorce and Matrimonial Causes Amendment Act, 1920, is now widely accepted around a world as a condition for the grant of divorce. Speaking straightaway, this type of ground is not based on traditional matrimonial offence theory or fault theory but rather on breakdown of marriage.

If we recap over the pages of judicial verdicts in respect of decided matrimonial cases, we find that Delhi High Court as early as in 1967 in Ram Kali v. Gopal Das observed, " It would not be practical and realistic, -indeed it would be unreasonable and inhumane, to keep up the fade of marriage even though the rift between them is complete and there are no prospects of their ever living together as husband and wife."

 

Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair.

Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair.

When the Court finds in facts as well as from talks of resettlement or reconciliation between parties that there was no possibility of reunion between the spouses and refusal of divorce would only prolong their agonies, it must dissolve the marriage and that's what the ground of IBM is.

 

The grant of divorce is not dependent on sweet will of the parties but on the Court coming to the conclusion that the marriage has irretrievably broken down.

The opponents of such ground for divorce have constantly argued that a prevalent clause viz. "Divorce by mutual consent" already very much covers such a situation. But one must understand that mutual consent requires the consent of both the parties and if any party does not cooperate until the conclusion of mandatory period as prescribed in section 13B of HMA, the said ground is not available.

On the other hand in IBM, the Court can examine and if it, on the facts of the case, comes to the conclusion that the marriage cannot be repaired/saved, divorce can be granted. The grant of divorce is not dependent on sweet will of the parties but on the Court coming to the conclusion that the marriage has irretrievably broken down.

The IBM is not a ground for divorce by itself. But while scrutinizing the evidence on record to determine whether the grounds on which the divorce is sought are made out, the circumstances can be taken into consideration. No divorce can be granted on such ground if the party seeking divorce on this ground is himself or herself at fault. The power of the Court to grant divorce on IBM must be exercised with much care and caution in exceptional circumstances only in the interest of both the parties. The concept of IBM cannot be used as magic formula to obtain a decree for divorce where other ground(s) are not proved.

Although such a ground for divorce is currently not mentioned in HMA, the Apex Court has been in appropriate cases granting decree of divorce over this ground in exercise of wide powers conferred on it to pass any decree or order by virtue of Article 142 of the Constitution of India. But different Benches of Supreme Court have been taking contrary stands over the issue at periodic intervals.

Pertinent that in March 2006, a three-judge Bench of Supreme Court granted divorce in Naveen Kohli v. Neelu Kohli on IBM. In this case, the parties were living separately for ten years. During this period, there were many proceedings, mostly by wife, based on allegations and counter-allegations between the parties. Though the husband was successful to obtain relief by trial court on ground of cruelty, the High Court taking a different view reversed the lower court's order.

 

n present times, every religion or sect ought to ensure that divorce laws must be gender-neutral, rational and more importantly in line with contemporary practices and thoughts in the minds of their new generations.

When the Supreme Court was moved by the aggrieved husband, he was granted divorce on IBM. This was indeed a classic case of consent being withheld by a spouse just for harassing the other spouse. This judgment was hailed and seen as a ray of hope by aggrieved spouses of a failed marriage to obtain hassle-free divorce on breakdown theory of marriage.

But in February, 2009 a two-judge Bench of Apex Court refused to grant divorce on IBM in Vishnu Dutt Sharma v. Manju Sharma case despite the precedent set by a larger Bench. Taking a conservative position, Justice Markandeya Katju who wrote the judgment said that since the Hindu Marriage Act was silent on irretrievable breakdown, the Court could not ''add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature''.

The more controversial part of Justice Katju's ruling is the reason he gave for disregarding the 2006 precedent, which being delivered by three-judge Bench is normally binding upon the smaller Bench. He made out that the verdict did not form a precedent because it had failed to take into account the legal position that Parliament had consciously excluded irretrievable breakdown as a ground for divorce. ''A mere direction of the Court without considering the legal position is not a precedent,'' Justice Katju said.

In reality, the judgment delivered in Naveen Kohli's case did discuss the lacuna in the divorce law and it had even recommended to the Parliament that IBM should be included in the grounds for divorce because of ''the change of circumstances and for covering a large number of cases where the marriages are virtually dead''.

If the Apex Court could still grant divorce on the grounds of irretrievable breakdown even without legislative reaffirmation, it is because of an activist approach to render justice within the given constraints of law. As the 2006 verdict put it, ''We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties.''

No doubt, feminist organizations have always vociferously opposed IBM as a ground for grant of divorce apprehending its possible misuse, hence suitable safeguards also need to be examined, debated thoroughly and incorporated for taming those vested interests who might find this as a cakewalk to get relieved of their spouse without undergoing through the current marathon legal process wherein fault ground(s) need to be raised and proved against adverse party for obtaining divorce. Though in urbanized areas, the women have become educationally advanced and legally aware, such an empowerment is dismal in the countryside.

I think a balance needs to be maintained wherein sanctity of institution of marriage be protected as well as individualistic interests of aggrieved party be addressed. It is true that in a country like ours, which is deeply embedded in its moralistic and cultural values, emulation of Western principles in matrimonial matters is not going to be an easy affair, but we must realize that it is need of the hour.

Nevertheless, there is also an urgent need to set up Family Courts in every district of the country for adjudicating all kinds of matrimonial disputes. It is really unfortunate that even after more than twenty-five years of enactment of Family Courts Act, 1984, only a small number of such courts have been set up in the country and that too mostly in Metros and big cities.

At the outset, it can be concluded that a rational and progressive divorce law, not only among Hindus governed by HMA and for so-termed secular couples who solemnize civil marriage under Special Marriage Act, but also among Christians, Muslims, etc., presently obeying their own personal laws, is the need of the hour. In present times, every religion or sect ought to ensure that divorce laws must be gender-neutral, rational and more importantly in line with contemporary practices and thoughts in the minds of their new generations. Needless to mention that perhaps owing to hyper-technicalities for obtaining divorce, the young generation is toying with the idea of live-in relationship.

 
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