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Breakdown of Marriage
By Raghavendra Rao of Poornaprajna Cyber Quest
A division bench of the Supreme Court of India has pronounced a ruling recently (March, 2009) that irretrievable breakdown of marriage cannot be a ground for divorce under the Hindu Marriage Act. A bench of Justices Markandeya Katju and V. S. Surpurkar has taken a view and said irretrievable breakdown of marriage is not specifically mentioned as grounds for divorce or dissolution of marriage in Section 13 of the Hindu Marriage Act and what is not in the Act cannot be included through a judicial verdict as it will amount to amendment to the Act. The Supreme Court has said that quarreling couples having no chance of reconciliation cannot legally seek divorce as it is not in the law book. Irretrievable breakdown of marriage is no ground for divorce for those married under the Hindu Marriage Act, because the law does not recognize it. In 2001, the Delhi High Court had taken similar view in Sudhir Singhal v/s Neeta Singhal case. However, in 2006 Supreme Court had granted divorce in Neetu Kohli v/s Naveen Kohli case for the reason that the marriage had broken down irretrievably as husband and wife made allegation of infidelity against each other. Hindu Marriage Act, 1955 is applicable to Hindus, Buddhists, Jains and Sikhs but not applicable to Muslims, Christians, Parsis and Jews. Section 13 of the Hindu Marriage Act provides for several grounds for granting divorce like cruelty, adultery, desertion etc. but does not specifically say that irretrievable breakdown of the marriage as ground for granting divorce. Breakdown is a ground for divorce in many western countries including England. In India, mutual consent of husband and wife could be a reason for divorce under Section 13B of the Hindu Marriage Act but not breakdown of marriage. To invoke Section 13B, the couple should have lived apart for at least one year. Irretrievable breakdown is a result of frequent quarrel, ill-will, hatred, prejudice or misunderstanding between the couple. However minor the cause may be, egoism would develop a small difference into a parallel track of life between them, never to meet again. Financial or social status plays a major role in crystallizing strong egoism in them. Feelings of two human beings are involved in a couple’s married life. This could not be patched up by enforcement of law by courts. It is up to the individuals to mend themselves. A horse can be taken to water but it is the horse that should drink it. However, the law should not deny divorce if the marriage has really broken down. By forcing unity with a hammer in the hand, the law does not serve the sanctity attached to the institution of marriage by religions. If the relationship of husband and wife wrecks beyond repair, what is wrong in recognizing that fact and allow them to live separately. How can one compel a wife or a husband to continue to live with spouse if they have fallen apart. If so compelled they would have to lead miserable life. In view of the judgment passed by the Supreme Court of India, necessity has arisen to reform divorce law in India. If deserting the spouse is a ground for divorce, then a situation may arise where husbands willfully desert their wives to get divorce. Courts may have to review the overall situation of the family while considering divorce – like the issues of children, permanent alimony and social status. Petitioner seeking divorce has to pay alimony sufficient for spouse and children to live throughout their life matching with the status of living standards of the petitioner. Probably such huge amount of money may deter a petitioner to refrain from seeking divorce. In a family life quarreling is a problem but denial of divorce is not a solution to that. Counseling shall be the first step to bond the broken hearts. If counseling fails, then aspirant of divorce shall be made to realize what price he has to pay to seek divorce. Petitioner seeking divorce shall deposit alimony amount equivalent to livelihood of spouse and children till their marriage according to the standard of living of the divorce seeker before filing the divorce petition. The petitioner should not be allowed to marry again for at least five years from the date of divorce. If such reforms are brought out, rate of divorce may decline in India.
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February, 2012
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