FAMILY LAW

E-mail this Comments Print Article

'Irretrievable Breakdown of Marriage' as Ground of Divorce - Need for Inclusion
by B.D. Agarwala*

Cite as : (1997) 8 SCC (Jour) 11

Under the Hindu Marriage Act, 1955 both the husband and the wife have been given a right to get their marriage dissolved by a decree of divorce on more than one grounds specifically enumerated in Section 13. Some of the grounds initially inserted were substituted and some more grounds came to be added. It was in the year 1964 that sub-section (1-A) was inserted by which either party to the marriage was also given a right to apply for dissolution of marriage by a decree of divorce either where there has been no resumption of cohabitation for the period specified therein, after the passing of the decree for judicial separation; or where there has been no restitution of conjugal rights for the period specified therein, after the passing of the decree for judicial separation; or where there has been no restitution of conjugal rights for the period specified therein after the passing of a decree for restitution of conjugal rights.

This apart, the wife has been given a right to apply for dissolution of marriage by a decree for divorce on certain further grounds stated in sub-section (2) of Section 13.

The legislature in 1976 inserted Section 13-B in the Act making provision for divorce by mutual consent on the ground that both the parties to the marriage have been living separately for a period of one year or more and they have not been able to live together and they have now mutually agreed for the dissolution of the marriage, and to apply accordingly to the District Court.

It is thus seen that the legislature has been conscious of the social developments and the need for making available the remedy of divorce in more and more situations.

However, it is to be noted that none of the grounds made available for seeking divorce by either the husband or the wife, speak of irretrievable breakdown of a marriage as a ground of divorce.

Due to various reasons in this country it is becoming more and more difficult for disgruntled couples to live together, on the ground of incompatability. The need for separation, where the parties to the marriage cannot live together, has been recognised to a certain extent in Section 13-B whereby the right to apply for divorce by mutual consent has been conferred by the Act. Mutual consent is not always forthcoming and in many a case, there is much of dilly-dallying by one or the other party. Sometimes anxious couples needing separation cannot avail of the remedy of divorce by mutual consent, merely because one of the parties tries to bargain in the matter or put conditions which may even be against public policy. It has been noticed that where a wife is keen to seek divorce her husband tries to harass her or dictate terms compelling her at times even to surrender her right to maintenance - a paramount right under the law. This unhappy situation could be avoided if the law is changed in tune with the changed values of our society.

Today's wife is not ready to merely live at the mercy of her husband and the members of his family. A sense of confidence and self-respect has come to be instilled in the wife in view of advanced socio-economic conditions. The wives are ready to face challenges in life. They are keen to become self-dependent. The spirit of forced tolerance of yesteryears is waning away. They are prepared to live separately rather than to stay united while unhappy.

This scenario became evident in a case that came before the Delhi High Court in 1978. In 1978 a dispute as to the choice of matrimonial home had arisen between a husband and wife who were employed at two different places before their marriage. The question was as to whether the right to chose the matrimonial home is vested with the husband only or also with the wife1. V.S. Deshpande, J. who delivered the judgment took note of the changes in the social scenario thus:

"With more and more women taking up jobs and wanting to retain them even after their marriage, the question becomes increasingly important, topical and controversial."

A curious situation on facts arose before the Court. The Court therefore felt difficulty in granting relief. The husband due to his financial difficulties was unable to decide about the place where the matrimonial home should be set up. The wife on the contrary was in a comfortable position on account of her job. But the husband's conduct was discouraging. The Court therefore found that there was reasonable excuse for the wife for not resigning her job and not coming to live with her husband in Delhi. This situation made the Court recognise the need for change in the law and it categorically observed that where there is a breakdown of a marriage that itself should be a ground for divorce and it would be immaterial to enquire as to which of the two parties was at fault.

The insertion of Section 13(1-A)2 and Section 13-B3 conferring the right to seek divorce by mutual consent is in consonance with the needs of the time. Be that as it may, "irretrievable breakdown of marriage" has till date not been made a direct ground available for dissolution of marriage through divorce though Justice Deshpande in his celebrated judgment as early as in 1978 impressed the need to amend the law to enable the parties to obtain a divorce when marriage has apparently broken down. In his view with such an amendment the law would come in line with English Law.

Almost two decades have passed but the legislature is yet to act upon this suggestion. There has been a sea-change in social thinking during all these years in the matter of relations between husband and wife. The desire and determination to live separately rather than to remain united but unhappy is gaining acceptance in our society.

The Law Commission of India in its Seventy-first Report on the Hindu Marriage Act, 1955 has also adverted to this question4. The Supreme Court in the case of Ashok Hurra v. Rupa Bipin Zaveri5 has also taken note of the question. Delivering the judgment the Court had referred to certain excerpts from the Law Commission report reading thus:

"Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one's offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage - 'breakdown' - and if it continues for a fairly long period, it would indicate destruction of the essence of marriage - 'irretrievable breakdown'."6

Earlier the Court said:

"Irretrievable breakdown of marriage is now considered, in the laws of a number of countries, a good ground of dissolving the marriage by granting a decree of divorce."7

The Supreme Court came to the conclusion that on a consideration of the various aspects of the case it was clear that the marriage was dead both emotionally and practically and there was no chance at all of its revival and continuation of such a relationship would only be for name's sake. The Court apparently became concerned with the situation and exercised its power under Article 142 of the Constitution to do complete justice in the matter by granting a decree of divorce by mutual consent and dissolving the marriage between the parties.

In fact the Court was not entitled to pass the decree on the ground of mutual consent as the wife had withdrawn from the joint petition filed under Section 13-B earlier. However, the Court had to pass the decree under Section 13-B as there was no other ground to do complete justice to the parties.

This decision by itself, should thus be a pointer to the need for the legislature to include "Irretrievable breakdown of marriage" as a specific ground for divorce under the Hindu Marriage Act, 1955.

* Senior Advocate, Supreme Court, Formerly A.G., U.P. State and Judge, High Court, Allahabad Return to Text

1. See Swaraj Garg v. K.M. Garg, AIR 1978 Del 296 Return to Text
2. S. 13(1-A) lays down: "Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground- (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties." Return to Text
3. S. 13-B lays down: "Divorce by mutual consent.-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree." Return to Text
4. See Indian Law Commission, 'Seventy-First Report' (1978) Return to Text
5. (1997) 4 SCC 226 Return to Text
6. Ibid. Return to Text
7. Ibid. Return to Text