Make irretrievable breakdown of marriage ground for divorce

The Punjab and Haryana High Court’s recent order dissolving a marriage in which the couple had been living separately since 1994 has once again highlighted the need to recognise ‘irretrievable breakdown of marriage’ as a ground for divorce.

The High Court concluded the long separation between the parties - rendering the marital bond as unworkable - amounted to mental cruelty, a ground force divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

“When a marriage has broken down, has lost all vitality and has become nothing more than a dead formality, insisting upon reunion would not only be futile but would also amount to prolonging the suffering of both parties,” it said.

This is not the only case in which lives of individuals have been ruined due to prolonged matrimonial litigation before a High Court or the Supreme Court realised the futility of protracted legal battle to save the sacred bond.

Unlike the Muslim Law, which treats it as a contract, marriage is considered to be sacrosanct under the Hindu Law. In fact there is no concept of divorce under both Mitakshara and Dayabhaga schools of Hindu Law. For the first time, it was introduced in the Hindu Marriage Act, 1955.

The concept of divorce under the Hindu Law is based on ‘fault theory’ which recognises adultery, cruelty, insanity, desertion, conversion, renunciation and a spouse missing for seven years as grounds for seeking divorce. The spouse seeking divorce is required to prove one of these grounds against the other in order to get a decree of divorce.

Despite the introduction of the concept of divorce, Hindu marriage remains a conservative institution and getting a decree of divorce remains a difficult proposition. Section 23(2) of the Act casts a duty on the court to make every endeavour to bring about reconciliation between the parties before proceeding to grant any relief under the Act.

Further, Section 13A of the Act gives discretion to courts to pass a decree for judicial separation, instead of divorce “if it considers it just so to do having regard to the circumstances of the case”, except in cases of conversion, renunciation and a spouse missing for seven years.

As the ‘fault theory’ worked very slowly, the Marriage Laws (Amendment) Act, 1976, introduced the concept of divorce by mutual consent under Section 13B of the Act as an improvement to expedite the divorce process where both parties wanted to dissolve the marriage.

Marriage forms the very basis of the family system which provides social, economic and cultural stability to individuals. It’s a socially approved union that leads to procreation and works as an institution for the care of children.

Despite the pressures of a fast-paced life and other socio-economic tensions, marriage has withstood the test of time in India which has a very divorce rate of 1%. A stable family is known to be one of the reasons behind the success of the Indian Diaspora.

However, that does not mean a person should live in a dead marriage and lose his/her life fighting protracted legal battles. When a wedlock becomes deadlock, it should come to a peaceful end, giving the parties a chance to begin their lives afresh.

It was for this reason that the Law Commission of India in its 71st Report (1978) accepted in principle irretrievable breakdown of marriage as a ground of divorce. In March 2009 in its 217th Report, the Commission recommended “that “irretrievable breakdown of marriage” should be incorporated as a ground for divorce under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.

In the absence of such a provision, the Supreme Court has been using its powers under Article 142 to grant divorce in appropriate cases. It’s high time Parliament acts on the Law Commission’s recommendation on the issue.