Introduction
Marriage is an important universal social institution which ensures the continuation of family. Every society exists on the foundation of family which in turn is based on marriage. As per Hinduism marriage is a sacred duty. It is a sacrament and holy union to perform both religious and social duties. Earlier Hindu marriage was considered to be eternal, permanent and indissoluble holy union.
However, the concept of divorce was introduced by the Hindu Marriage Act, 1955 as enumerated in Section 13. The legislature gave the right to get the marriage dissolved to both, husband and wife, on any of the grounds mentioned under Section 13[1].
Irretrievable breakdown of marriage as a ground for divorce has not been mentioned under the Hindu Marriage Act. Thus it is not yet a statutory ground of divorce in India.
The very foundation of marriage is based on the presupposition that there exists a sound understanding between the spouses. But if the understanding is no longer there and the marriage has become a continuing misery for both the parties, then it is in interest of parties and society to put an end to such a marriage.
Background
The 71st Law Commission report, for the first time, suggested for “irretrievable breakdown of marriage” to be considered as a ground for divorce. In order to give effect to the recommendations of the report, an Amendment Bill was introduced in 1981, but it could not get passed at that time due to opposition from various women rights groups.
With the changing times and increasing complexity in the societies, judiciary also evolved and became liberal in its approach in granting divorces on additional grounds.
Supreme Court through its various judgments has recognized irretrievable breakdown as a ground for divorce. Further in 2009, Law Commission again vide its 217th Report, again suggested it to be included as a statutory ground for divorce.
Evolving law through judicial pronouncements
Over time Supreme Court has used its powers under Art 142 of the constitution to grant divorces on additional grounds in order to do complete justice. Thus even though not a statutory law, irretrievable breakdown has been evoked in various judicial decisions and has gained validity as the ground for divorce.
In case of Sangamitra Ghose v. Kajal Kumar[2], the Apex Court held that “We are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties beyond repair and that the marriage has been wrecked beyond the hope of salvage and therefore public interest and interest of all concerned lies in the of the recognition of the fact and to declare defunct de jure what is already defunct de facto”[3].
Supreme Court in Naveen Kohli v. Neelu Kohli[4] strongly recommended the government to consider “irretrievable breakdown of marriage” as a reasonable ground for divorce.
Further in recent judgment of Shilpa Sailesh v. Varun Sreenivasan[5], the constitutional bench has laid down various factors which might indicate that a marriage has irretrievably broken down. An illustrative list of certain broad factors to be considered has been mentioned by the Apex Court. The factors included are: duration of marriage, litigation period, for how long the parties have been staying apart, nature of cases that are pending between the parties, number of reconciliation attempts, and the satisfaction of the court that agreement to divorce has not been given under coercion.
Further, the Apex Court also held that it can invoke its powers under Article 142 to grant divorce on this ground, but it is only a discretionary power of the court and not a “matter of right” of the parties.
Also the cooling off period of six to eighteen months is not mandatory if the divorce is inevitable and the marriage is beyond salvage.[6]
Conclusion
Sometimes there arise situations where the continuing of marital relationship becomes impossible. There are irreconcilable differences between the parties and thereby parties get involved in multiple litigations against each other. In such situations divorce is inevitable. Thus it is in both public and personal interest to grant divorce.
Most of the developed countries have already recognized and codified the “irretrievable breakdown of marriage” as a ground of divorce. Thus legislature should consider making an amendment to the Act to include irretrievable breakdown of marriage as a ground of divorce.
[1] Hindu Marriage Act, 1955
[2] Sanghamitra Ghose v. Kajal Kumar, 2007 (2) SCC 200
[3] ibid
[4] Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675
[5] Shilpa Sailesh v. Varun Sreenivasan, Transfer Petition (CIVIL) NO. 1118 of 2014
[6] Ibid
Written By: Vartika Chahal, an Advocate practicing in Delhi NCR with keen interest in writing legal articles on diverse topics like matrimonial issues, environmental laws, corporate laws.