A Ground For Divorce…..
INTRODUCTION
Once tied up in marriage and the law steps in binds both the parties to several rights and obligations towards each other. Marriage is a sacrament under Hindu Shastras and law which is eternal and indissoluble. Marriage is the basic foundation of a family that turns into a society. It is that pillar without which no civilized society can exist. But due to the change in socio-economic dimensions of society the concept of eternal and indissoluble marriage has ended. The modern society gives us the concepts of industrialization, urbanization, the disintegration of joint family and, the laws that provide equal rights and status to the woman.
The divorce was considered evil in codified law under Hindu law. There are two theories like fault theory, mutual consent theory under the concept of divorce on the basis of which one can take divorce. With the change of time, a new theory of no-fault theory also gets its evolution. When no party is at fault but the sweetness of marriage is at risk and parties prove that their marriage is irreparable the court can grant the divorce on basis of the irretrievable breakdown of a marriage. The concept of the irretrievable breakdown of the marriage is based on the theory of no-fault. It is based on the principle, the thing cannot be mended should be ended.
HISTORY OF IRRETRIEVABLE BREAKDOWN OF MARRIAGE
New Zealand is the first commonwealth country that introduced this concept in 1920. According to it, three or more year’s separation is a ground for divorce. In 1921, the court granted the first divorce on the basis of irretrievable breakdown. The court held that it is not in the interest of the public and spouses when the matrimonial relations are beyond repair.
In England, this theory was discussed in the case of Masarati vs Masarati. The law commission of England stated that there are two objectives of divorce- 1) to strengthen the marriage rather than to analyze its stability. 2) When the marriage has broken beyond repair, to enable the empty shell to be destroyed with minimum bitterness and maximum fairness.
The commonwealth country Australia introduced divorce on the ground of breakdown of marriage in 1959.
In India, the Hindu Marriage Act, 1955 for the first time introduced filing petition of divorce on the basis of Fault-Theory. After it, in 1964 partial ground for divorce was introduced and 1976, the divorce through mutual consent was introduced. However, whether the irretrievable breakdown of marriage should be introduced as a ground of divorce is still a matter of debate. In 1978 the law commission in its report favored that this should be a ground for divorce. In 2009, the law commission again recommended the inclusion of this ground. In furtherance of it, the Bill was introduced in 2010; Rajyasabha passed this Bill in 2013. But due to the dissolution of loksabha in 2014, the bill lapsed.
ANALYSIS OF THE PROVISIONS UNDER MARRIAGE LAWS (AMENDMENT) BILL, 2013
- Three years separation required
According to Section 13-C of the Bill three years of separation is required for obtaining a divorce on the basis of irretrievable breakdown of the marriage. So, while obtaining divorce one has to show that the spouses are living separately for the last three years. This is the standard period of separation between spouses to prove the marriage has been irretrievably broken down. But this is not the sole criterion to determine the breakdown of the marriage the court has to consider the circumstances also.
The no-fault theory is based on the principle that neither party is at fault. But the fault creeps into the no-fault theory. The court while deciding the issues will consider the reasons for a breakdown of a marriage that generally depends on the fault of one spouse.
But the word “in the same household” will limit the scope of the provision, if it is interpreted as, “under the same roof”. The definition of the term is not provided under the Bill, so this question will definitely arise. In the case of “Surestha Devi vs Omprakash”, the Supreme Court held that it might be possible that the husband and wife are living together but not as husband and wife. This situation will also be considered as separation. So, the legislature should define the word “in same household”.
- Discretion with the Court not to grant the divorce if causes hardships to the wife and order to pay compensation to the wife
The irretrievable breakdown of marriage as a ground of divorce will allow the guilty also to take divorce. To prevent the misuse of this provision and to protect the innocent the Bill introduced Sections 13-D and 13-F.
13-D: the court has the discretion to dismiss the petition of divorce under section 13-C, if
- The great financial hardship causes to the wife
- And it is wrong to dissolve the marriage in the light of all the circumstances.
The petition will be dismissed if both the conditions are satisfied and the respondent is wife. This provision is gender-biased. But the law commission clarifies that it should be used in exceptional circumstances after considering all the relevant facts and “in the interest of justice”.
Section 13-F provides that the court has the power to order compensation to the wife to settle any claims. This power is discretionary and compensation may be ordered in form of movable or immovable. Again this does not provide compensation to husbands, and the opposite situations might be rare but can exist. It causes injustice to husbands who need compensation and faces financial hardships. And it also leads the wife’s identity as a victim.
But the patriarchal society of India still holds the difference between a man and a woman. Even In the 21st century, it is the wife who faces hardships after divorce especially non-working wives in 99% cases.
ROLE OF JUDICIARY OR POWER OF SUPREME COURT UNDER ARTICLE 142
To ensure that justice is done, the constitution of India confers inherent powers upon the Supreme Court under Article 142. The Supreme Court has the power to grant special leave against the orders or decrees of any court. So, the SC can exercise its power under Article 142 in matrimonial cases also. In absence of legislative enactments, the Supreme Court is providing relief to the parties under Article 142.
The Apex Court in the case of “Navin Kohli vs Neelu Kohli” strongly recommended that the irretrievable breakdown of marriage should be added as a ground of divorce by way of an amendment under the Hindu Marriage Act, 1955.
So, for now, only the Supreme Court has the power to grant a divorce on the basis of irretrievable breakdown of marriage under Article 142 of the Constitution of India.
CONCLUSION
The bond of marriage must be maintained as far as possible, as long as possible, and whenever possible if the public interest is served. But when the soul of any relationship is dead, it cannot serve any purpose or fulfill any public interest. There is no benefit to keeping unite an artificial bond. So, it is better to break the bond when it becomes irreparable. Law cannot keep a blind eye on the demands of society. So, the irretrievable breakdown should be introduced as a ground of divorce as suggested by the Apex court and Law Commission of India.