Should Irretrievable Breakdown Be The Ground of Divorce In Personal Laws of India

Irretrievable breakdown of marriage can be defined as such failure in the matrimonial relationship or such circumstances adverse to that relationship that no reasonable probability remains of the spouses remaining together as husband and wife for mutual comfort and support[1] It is the situation that occurs in a marriage when one spouse refuses to live with the other and will not work towards reconciliation. When there is not an iota of hope that parties can be reconciled to continue their matrimonial life, the marriage can be considered as Irretrievable Breakdown of marriage.

Origin And Scope
This concept was first introduced in New Zealand. The Divorce and Matrimonial Causes Amendment Act, 1920 included for the first time the provision for separation agreement for three or more years was a ground for making petition to the court for divorce and the court was discretion whether to grant divorce or not.[2] In England, the gate for this theory was opened up in the case of Masarati v. Masarati,[3] where both the parties to the marriage had committed adultery. The court of appeal, on wifes petition for divorce, observed breakdown of marriage. The law commission of England in its report said, The objectives of good divorce law are two: one to buttress rather than to undermine the stability of marriage and two, when regrettably a marriage has broken down, to enable the empty shell to be destroyed with maximum fairness, and minimum bitterness, humiliation and distress.[4] On the recommendation of the Law commission, Irretrievable Breakdown of Marriage was made the sole ground for divorce under section 1 of the Divorce Law reforms Act, 1973.[5] The Matrimonial Causes Act, 1959 of the Commonwealth of Australia provided for divorce on the grounds of breakdown of marriage. In India, breakdown of marriage is still not ground divorce in spite of the recommendation of the Law Commission and various Supreme Court judgments to include breakdown of marriage as a ground for divorce.

Theories of divorce

The provisions relating to divorce is contained in Sec 13 of Hindu Marriage Act, 1955. The Act recognizes two theories of Divorce: the fault theory and divorce by mutual consent. Under the fault theory, marriage can be dissolved only when either party to the marriage had committed a matrimonial offence. Under this theory it is necessary to have a guilty and an innocent party and only innocent party can seek the remedy of divorce. However the most striking feature and drawback is that if both parties have been at fault, there is no remedy available.

Another theory of divorce is that of mutual consent. The underlying rationale is that since two persons can marry by their free will, they should also be allowed to move out of their relationship of their own free will. However critics of this theory say that this approach will promote immorality as it will lead to hasty divorces and parties would dissolve their marriage even if there were slight incompatibility of temperament.

Law commission report

The Law Commission in its Seventy-First Report submitted in 1978, strongly recommended to introduce breakdown of marriage as a ground for divorce in addition to fault grounds in the divorce law[6]

In the year of 1981, a Bill was introduced to give effect irretrievable breakdown as a ground for divorce, but it did not accept as some scholars apprehended that unscrupulous husband would desert their wives and take advantage of this provision. [7]

It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfilment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances.[8]

Judicial review
Of late, however the courts have been adopting a more realistic view to deal with the cases. This viewpoint was reiterated in the case of V. Bhagat v. D.Bhagat[9] where court stated that irretrievable breakdown of marriage is not a ground by itself. In Ajay desai V Rajshree desai[10] where the alleged grounds (cruelty and desertion ) were no proved, the petioner could not plead irretrievable breakdown of marriage , more so when the wife had all along expressed a genuine desire to live with her husband. In Neetu Kohli v. Naveen Kohli[11] husband alleged that the wife was quarrelsome and was found in compromising situation with one Biswas Rout. The wife counter alleged that husband had a concubine. This established that the marriage had broken down irreparably and hence granted divorce on grounds of an irretrievable breakdown.

In a recent decision of this Court in the case of Rishikesh Sharma v. Saroj Sharma[12] in this Court observed that the respondent wife was living separately from the year 1981 and the marriage has broken down irretrievably with no possibility of the parties living together again. The Court further observed that it will not be possible for the parties to live together and therefore there was no purpose in compelling both the parties to live together. Therefore the best course was to dissolve the marriage by passing a decree of divorce so that the parties who were litigating since 1981 and had lost valuable part of life could live peacefully in remaining part of their life. The Court further observed that her desire to live with her husband at that stage and at that distance of time was not genuine.
Thus, the statutory position as it stands today is that simple breakdown of marriage is no ground of divorce under any personal laws of India. Under the Muslim law, however, a husband's right to give a talaq to his wife is in recognition of breakdown theory. Likewise, a Muslim wife can claim divorce for consideration as matter of right and if the husband refuses she can approach the court.[13]

Conclusion, suggestion and justification:-
However the attempt to introduce irretrievable breakdown as a ground of divorce has proved to be vague in the mind of the people. In answer to the first criticism we can say that in india, marriages as they define are made in heaven and solemnized on earth. It is a sacrament of Hindus, Muslim and Christians, husband and wives vow each other and decided to be together for another seven birth also. Few decades ago, Divorce was considered as an evil and it was very limited which sought only under compelling circumstances. By including such clause of irretrievable breakdown it would be a shame and unjust on the part of the country like India where relationships are given the first preference and it would be just to adopt a another theory of westernization. By including this clause it would be very easy for the husband to get rid from their wife and owe no responsibility to them. The second thing which will effect in the process will be children and their maintenance.

As in divorce cases the present and future of the child affects a lot and that innocent person suffers from a huge pain. Indian matrimonial law is generally fault based which means that ground of divorce have to be the fault of either party be it adultery, desertion, or cruelty but there is a mutual consent clause also where neither party is at fault and there is a agreement that the marriage is no longer working. This s good enough reason for divorce if the marriage has broken down, inclusion of this clause can be misplaced and will lead to serious destruction in Indian society. further when we assume that due to unemployment in the Indian society there is always a fear of theft, robbery, etc; thus in the same way when irretrievable breakdown would consider as ground of divorce there would be same chaotic conditions and Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce.

In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved.[14] As against to the first criticism as irretrievable breakdown Should be considered as a ground of divorce, it is said that Marriage is a social institution and is the first step towards the formation of a family. It gives the people, the much needed support to face the adversaries of life and is a source of happiness for any individual. However, when there is a clash of expectations between individuals and hidden agendas are involved or the mutual trust between partners is broken, the marriage ceases to exist in spirit and remains only on papers. The complexity of modern society and its possible consequences such as fast changing socio economic conditions, the disintegration of the joint family structure, the rapid development of industrialization and urbanization, education and employment and laws giving equal status and rights to women, led a tremendous impact on the institution of marriage. The concept of marriage is moving from a sacrament to a contract.

The spouse should be granted a right to move out of the wedlock if they cannot live together due to extreme situations. Justice Krishna Iyer in the case of Aboobacker v. Manu[15] stated while the stream of life, lived in marital mutuality, may wash away smaller pebbles, what is to happen if intransigent incompatibility of minds break up the flow of stream. Thus, is crystal clear that when the relationship is not going good and unnecessary maintained on papers where the feelings of trust, love does not exist and no scope of recovery of relationship is there it is better to end the relationship, incompatibility is often a major reason for unhappiness. when friends can end their their relationship, why can't a couple?

However a safety clause can be inserted which would empower the courts to refuse divorce if it is adversely affects the interest of children and a provision should be made for the maintenance for child and wife. It should also include the maintenance of husband and children by the wife because in the changing scenario it's no more that women sits in four walls of the houses even she is compatible enough to meet the expenses of the family and have a full right for maintenance of her own child. As there are no laws in the favour of men in hindu marriage act and therefore, sometimes it becomes advantageous for opposite spouse to enjoy her rights unnecessary. as In the recent judgement of Vishnu dutt sharma Vs. Manju Sharma[16] where supreme court denied giving divorce on the grounds of irretrievable breakdown because it was not mentioned in HMA 1955. Analysis of the contradictions led to serious revelations. The divorces granted on irretrievable breakdown of marriage were those demanded by wives while the one recently rejected was demanded by a husband.

This is nothing short of discrimination against husbands by the Apex Court and is a defeat of husbands' human rights. Be it a man or a woman, a right to peaceful and dignified life is an unchallengeable one and has to be respected at any cost. End of marriage is not the end of life and if two people, after having married to each other, are not mutually happy and all means of restoring their marriage have been exhausted, one does not see any reason not to grant them divorce and allow them to move on in life.A relationship is meant to give support to an individual in a social context and not to form a burden and all relationships are quintessentially based on trust. If the trust dies, so does the relation. To introduce the clause of irretriviable breakdown of marriage as a ground of divorce, in the amendment bill[17], it could be introduced that that:
The right to apply for divorce on the grounds that cohabitation has not been resumed for a space of two years or more after passing of a decree for judicial seperation, or on the ground that conjugal life has not been resorted after expiry of two years or from the date of decree for restitution of conjugal rights should be available to both husband and the wife, as in such cases it is clear that the marriage has proved a complete failure. There is, therefore, no justification for making the right available only to the party who has obtained the decree in each case .It is needless to mention that Jurist, academicians and courts as well as the law commission of India have recommended that irretriviable breakdown of marriage be made a ground of divorce.

Bibliography:
Books, journals:
Mulla, Principles of Hindu Law, Vol II, 19th ed. (ed SA DESAI), LexisNexis Butterworths, New Delhi.
Paras Diwan, Hindu Law, 2nd ed.2002, Orient Publishing Company, New Delhi
Rangnath. Misra, (rev.),Mayne, Hindu law and Usage, 15th ed.2003, Bharat Law House, New Delhi.
Agrawala, Raj Kumari (1972). Changing Basis of divorce and the Hindu Law, Journal of Indian Law Institute, Vol.14, 1972, New Delhi.
B.D. Agarwala (1997). Irretrievable Breakdown of Marriage' as Ground of Divorce - Need for Inclusion, (1997) 8 SCC (Jour) 11.
Kusum, Irretrievable Breakdown of Marriage: A ground for divorce, Journal of Indian Law Institute, Vol.20, 1978, New Delhi.

Endnotes
[1] Paras Diwan, Hindu law, 2nd edition, 2005, p.563.
[2] Law Commission, 71st ReporT
[3] Paras Diwan, Family Law, 6th edition, 2001, p.29
[4] Ibid p.564.
[5] Ibid p.565.
[6] 'irretrivable breakdownof marriage as a ground of divorce',1978
[7] B Sivaramayya, 'Irretiavable breakdown of marriage as a ground of divorce:Gateway to liberation or oppression ,' in kusum(ed), women march towards dignity 1993, pp56-52
[8] 71st Report of the Law Commission, Government of India, p.12; cited in Naveen Kohli case.
[9] AIR 1984 SC 710, p721
[10] AIR 2005 Bom 278;see also Sima palait AIR 2005 Guj 140
[11] AIR 2006 SC 1675
[12] (2006) 12 SCALE 282
[13] Mohd Altaf Husssain Ahanger,'Divorce Structure: Fault, Consent or Irretrievable breakdown of Marriage', in Paras Diwan and Virendra kumar (eds), law towards stable marriages, 1984, pp237-348.
[14] Naveen kholi v Neelu kholi AIR 2006 SC 1675
[15] AIR 1971 KLT 663.
[16] 2009(3) SCALE 425
[17] Gazette of India, extraordinary pt II, s 2, p 86, 26 July 1963

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