On June 10, 2010 the Union Cabinet approved the introduction of a Bill, i.e. The Marriage Laws (Amendment) Bill, 2010, to be tabled in the forthcoming winter session of Parliament. It seeks to amend the Hindu Marriage Act, 1955 and Special Marriage Act, 1954, to provide “Irretrievable Breakdown of Marriage” as a ground for divorce.
The long awaited move comes more than a year after the Law Commission of India suo moto took up the study of the subject and in its 217th report in March 2009 had strongly made the above recommendation. The Commission examined the existing legislations as well as a number of judgments of the Supreme Court and High Courts on the subject and was of the view that “Irretrievable Breakdown of Marriage” should be incorporated as another ground for granting divorce under the provisions of the Hindu Marriage Act, 1955 (HMA) and the Special Marriage Act, 1954 (SMA). The Commission also recommended that the court before granting a decree for divorce on the ground that the marriage has irretrievably broken down, should also examine whether adequate financial arrangements have been made for the parties and children.
Although such a ground for divorce is currently not mentioned in HMA, the apex court has in appropriate cases granted a decree of divorce on grounds of “Irretrievable Breakdown of Marriage” by virtue of powers vested in it under article 142 of the Constitution. However, different Benches of the Supreme Court have taken separate stands over this issue. In March, 2006, a three-Judge Bench of Supreme Court granted divorce in Naveen Kohli vs. Neelu Kohli reported as (2006) 4 SCC 558. But in February, 2009, a two-judge Bench of the apex court in Vishnu Dutt Sharma vs. Manju Dutt Sharma reported as (2009) 6 SCC 379, refused to grant divorce on the ground of irretrievable breakdown of marriage, as the court observed that it could not add such a ground to section 13 of HMA, since, it would amount to amending the Act which is a function of the legislature. In the most recent view in May, 2010, in Neeti Malviya vs. Rakesh Malviya reported as (2010) 6 SCC 413, the Supreme Court while examining the question of waiving the six months waiting period for divorce by mutual consent by invoking its extraordinary powers under article 142 of the Constitution, has referred the question for consideration by a threejudge Bench. Clearly, the underlining note of invoking irretrievable breakdown of marriage as a ground for divorce did not find favour with the Bench. Thus, from the verdict of the Supreme Court in V. Bhagat vs. D. Bhagat reported as (1994) 1 SCC 337 allowing divorce on the ground of irretrievable breakdown of marriage to the pronouncement in Anil Kumar Jain vs. Maya Jain reported as (2009) 10 SCC 415, not allowing so, there have been variant views on this controversial subject for fifteen years. The apex court, however, has been consistent in its view that neither the High Courts, nor the subordinate courts can exercise such power vested only in it.
Realistically speaking, a broken marriage limps to dissolution. Law cannot reunite parties if the matrimonial bond has severed. Consequently, a peaceful parting is necessary if parties cannot reconcile despite best efforts. Thus, adding of “Irretrievable Breakdown of Marriage” as a ground for divorce by Parliament by amending marriage laws may be the best possible solution for the future for ‘limping marriages’. However, the power of the court to grant divorce on the ground of Irretrievable Breakdown of Marriage should be exercised with extreme care and caution only in circumstances warranting so and when it is in the interest of both the parties. Due regard for maintenance of the dependent spouse, besides care and welfare of children must be safeguarded by an enabling legislation. Hence, simultaneous amendments to other provisions of marriage laws in this regard must follow forthwith whenever such a law is made. A balance needs to be maintained wherein sanctity of the institution of marriage should be protected as well as individual interests of aggrieved spouses should be addressed. India is deeply embedded in moral and cultural values and thus, emulation of Western principles in matrimonial matters is not appreciable and should not be adapted with ease. Hence, the ground of Irretrievable Breakdown of Marriage should be introduced cautiously hedged with safeguards so that the provision is not subject of misuse.
Nevertheless, there is also an urgent need to set up Family Courts in every district of the country for adjudicating all kinds of matrimonial disputes. It is really unfortunate that even after more than twenty-five years of enactment of the Family Courts Act, 1984, only a miniscule number of such courts have been set up and that too only in metropolitan cities. It may also be advocated that not only among Hindus, but also for Muslims, Christians, Parsis and other religious denominations, there must be marriage and divorce laws in line with contemporary practices of the younger generation who have received higher education and have a more cosmopolitan thinking. Times have changed and people of India must move ahead without living in the past. Harmony at home and peace at work is the most important component and quality of successful Indians in the twenty first century. The stable family is an epitome of Indian society!
Mikiko Otani Attorney at Law, Japan
There are a number of cases being filed on the ground of Irretrievable Breakdown of Marriage across different jurisdictions. In reference to Japan, I would say that it is not so easy to file a divorce case on this ground as the parties to the matrimonial dispute must first go for mediation, before approaching the court of law. The temperaments of the people are fast changing and the level of patience has gone down. The court does not permit the parties to directly approach and file a divorce case before it unless the mediation has failed.
Yes, indeed. Most of the divorce cases filed on the ground of Irretrievable Breakdown of Marriage in Japan get resolved in the mediation itself, as it is one of the best means available for dispute resolution. Both the parties form a common platform of compromise since they do not want to prolong their settlement by going through tedious litigation procedures. This is the reason why courts in Japan do not entertain cases directly and send them for mediation.
Well, when the process of mediation fails between the parties and the petition for divorce on the ground of Irretrievable Breakdown of Marriage is filed before the Court, the Court needs to decide the matter in the light of the facts and circumstances. Both the parties face financial hardship as well as mental trauma during the litigation process.
Bruce Doyle Accredited Family Law Specialist, Doyle, Kayworth & Harris, Australia
We only have one ground of divorce and that is of Irretrievable Breakdown of Marriage.We only have one way of proving it and that is whether the spouse had lived separately for not less than twelve months. So, there is no question on the divorce on the grounds of desertion or adultery. It’s throughout over fault grounds as it was found that forcing people to face humiliation in public which actually made things worse, it made things harder to resolve when there are other methods to resolve. For example, trying to get people reach an agreement about their children, trying to resolve the other matters, so it is a practical way of managing a divorce. However, there is some truth to the feeling that it is emotionally unsatisfying to many spouses. It is emotionally unsatisfying when they feel that they have been wronged and they want the judge to say that he or she did a wrong thing to you. There are some areas where fault may still be relevant, for example, if somebody is violent. Even in property matters, the courts have developed a backdoor way of reintroducing fault because property in Australia is divided on accord of two things your contributions and your needs. In case a spouse had been violent throughout the marriage, the courts in Australia may say that the violence made the aggrieved spouse contribution more difficult and harder and so the court might give them a larger slice of property to make up for that.
Well, it actually makes no difference that they have done the wrongs or not. To get divorced, the only question which will come to my mind will be that whether you have been separated for twelve months and even if the other spouse doesn’t want to be divorced, then the only way they can stop the divorce is by saying “no we have not stayed separately for a period of twelve months”. That is the only defense.
I think there are two facts which are relevant. The first would be of the procedure and having to find who is at fault. The second will be a practical answer, which depends on your values.We as lawyers try to be non-judgmental and not to impose our values on the client. Now, if you have a value system, that the divorce is wrong and must be stopped at all cost.A value system which says that there must be fault, we don’t just let people separate and go for divorce. I will not approach a value system which points toward a fault.
The pro will be if in reality it is an artificial marriage. For example, decades of nagging on one side and act of violence on the other which is out of frustration, even though violence is inexcusable. Everyone has a justification for his or her behavior and everyone has reason to do what they are doing. Thus, this is a civilized and practical way to end the marriage, and it only makes things worse when you have to fight for who is at fault.When the marriage is over, it is over and you just have to pick-up the pieces and make your practical family arrangement with regard to your property and children. You need to focus on that and move forward without looking back at who was at fault for breakdown of marriage. The con would be that it is emotionally dissatisfying. Since, there are two parties to the marriage, one party is completely blind and the other is the one who is at fault. So, to balance, I believe that it is not a con, but a practical way of looking at things.
The highest court in our country has, more than a few occasions, considered the impact of long separation of spouses, without any scope for reunion, while deciding their divorce claim. In 1993, the Supreme Court in Chandrakala Menon’s case held that ten years separation is sufficient to hold that a marriage has irretrievably broken down. The same principle was followed in Kanchan Devi’s case in 1996. Even three years separation was treated as a cause for divorce in Sandhya Rani’s case in 1994. But, so far, ‘irretrievable breakdown of marriage’ is not a statutory ground for getting divorce under the Indian law. Even after the lapse of more than one and half decades, our legislature has not identified this irrationality, which has now been pointed out by the judiciary.
It is imperative to point out that the observations of the court in Chetan Das’s case (2001) are precise appraisal on the mitigating factors to keep matrimonial tie alive. The court observed “Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse.” The court also pointed out that such disputes have to be decided basically on facts. However, it was only in Naveen Kohli’s case, in 2006, that the Supreme Court directed the Central Government to look into the matter. A three-judge Bench directed the Government to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate “irretrievable breakdown of marriage” as a ground for the grant of divorce. The present move by the Cabinet may be an outcome of this verdict. Of course, this is a good move, for more than one reason. When preservation of marriage is unworkable, continuation of the legal tie is only a misery, not only to the spouses, but also to their families. It is usual, when marriage has become beyond repair even after the intervention of the family members or the well-wishers, due to the complexity and technicality in getting the divorce either of the parties may go for an ex-parte divorce, rather than a mutual divorce.
Even without the presence of mental or physical cruelty, the marriage may be destroyed due to some other factors. For instance, intolerance, lack of adjustment and respect, insignificant irritations, simple quarrels, petty differences are the usual factors for the momentary separations in matrimonial life. The mandate of law must be flexible to keep up with the changing social reality.
On 16 November, 2010, the Marriage Laws (Amendment) Bill, 2010 was referred to the Department related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, headed by Jayanti Natarajan (Member, Rajya Sabha) for examination and report. The Committee has invited memoranda containing views/suggestions from various political arties/individuals/nongovernmental organizations interested in the subject matter of the Bill and also to hear select oral evidence. CRISP (Children’s Rights Initiative For Shared Parenting), a registered NGO from Bangalore, submitted the following memorandum containing its views/suggestions on the Marriage L aw (Amendment) Bill 2010 through it’s Secretary Shri Anil Kumar:
The proposed amendments (to marriage laws) for irretrievable breakdown of marriage as ground for divorce are long overdue since half a dozen existing laws related to marriage, child custody and divorces are in a mess. The amendments as proposed by Law Ministry can add to the confusion and worsen the situation. The amendments propose to grant divorce to men or women, if they are living separately for 3 years or more. Women can oppose the divorce on the ground of financial hardship.
This amendment has provision for adequate maintenance for children during such a divorce. It just stops there by considering the impact of divorce on children to be only financial in nature. However, the impact of divorce on children is not just financial; the impact is also emotional. In countries like USA, which has 50% divorce rate, children from fatherless homes are most likely to become criminals, rapists and drug addicts and are also more prone to committing suicide. The amendments must add a clause for considering shared parenting as the default arrangement for care and upbringing of children. For example, both the biological parents must be allowed to take care of child’s education and the child must be allowed to spend time between both parents.
There is an immediate need for rationalization of alimony/maintenance laws. At present, the laws related to maintenance rarely take the duration of marriage into account. Currently, women in short marriages tend to make huge gains in alimony orders or in out of court settlements as compared to those in long marriages. This incentive to break short marriages needs to end. Recently, a software engineer was ordered to pay his wife Rs.25,000/- for a marriage lasting just 6 months without any mention of the maximum duration of this alimony. The incentive to end short marriages can be stopped by introducing limited duration alimony.
In many states of USA, the alimony laws specify that the duration of maintenance/alimony must not exceed the tenure of marriage. Further, laws in the states of Texas, Montana, Kansas, Utah, Kentucky and Maine, give explicit guidelines to judges on the amount and/or duration of alimony. In Texas, Mississippi and Tennessee alimony is awarded only in cases of marriage or civil union of ten years or longer and the payments are limited to three years, unless there are special extenuating circumstances. In Maine, Mississippi, and Tennessee, alimony is awarded in marriages or civil union of 10 to 20 years and the duration is half the length of the marriage barring extenuating circumstances.
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