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Marriage On Irretrievable Breakdown Can Be Dissolved By Supreme Court In Exercise Of Article 142 of Constitution Of India

Marriage being regarded as a sacrament under Hindu Law is also believed to be made in heaven. This leaves one with the question: does the sacramental nature make it eternal or indissoluble, or do we have a choice to quit in between?

A successful marriage is not defined by merely living together for years but living together happily. There have been umpteen cases where the couple puts an effort to grow together yet develops animosity, ultimately leads to separation.

As the socio-economic condition of the spouse improved with the advancement of society, they also grew to be more self-reliant and independent. They are willing and ready to live apart rather being tied and living together while being dissatisfied with their marital relationship. Furthermore, with the steady progress of education, communication technology, and rising level of understanding, the societal stigma of divorce is rapidly fading in the current day. Divorce rules have been noticeably liberalised in line with this shift, particularly under the Hindu Marriage Act of 1955.

Historical Aspect
The concept originated in New Zealand in 1921 through the historical decision in [Lodder Vs Lodder, (1921) New Zealand Law Reports 876] quoted in Jeffries, embracing irretrievable breakdown as a ground for divorce. If the parties reside in separation for more than 3 years, it is assumed that the marriage has irretrievably broken down.

The House of Lords in Blunt Vs Blunt accepted the fact that stretching legally a broken marriage to the extent that it becomes burdensome, neither benefits the couple nor serves the public interest.

On May 22, 1969, the General Assembly of the Church of Scotland suggested that there should be a substitution of irretrievable breakdown in place of matrimonial offences and exclaimed that continuous separation of at least two years consequent upon a decision of at least one of the parties of not living together should act as a sole evidence of breakdown of marriage.
Current Position & Status in India

If in certain circumstances, it is known that there are no prospects of advancement of the marriage, continuing to drag the marriage legally acts as cruelty to the spouse. It is only under the Hindu Personal Laws where such severe restrictions related to divorce exist. Muslim, Parsee and Christian marriage laws allow divorce more easily. Grounds for divorce are laid down under Section 13 and 13 (1A) of Hindu Marriage Act 1955.

Furthermore, Section 27 and Section 28 of Special Marriage Act, 1954 also hold grounds in case of solemnized marriage. However, these legislations do not contain irretrievable breakdown of marriage as a ground for divorce. Sections 13 (1-A) and 13-B of the Hindu Marriage Act, 1955 are considered to be inadequate to counter each and every situation concerning remedies in marriage. Under the fault grounds of divorce theory, though the marriage may have been broken down, the parties are expected or largely compelled to live with each other in the wedlock.

If the marriage has lost the actual substance and sanctity, it is prima facie that the marriage is totally unworkable, emotionally dead, beyond salvage and thus, has broken down irretrievably. Historically, divorce grounds are based upon two theories, mentioned in Hindu Marriage Act, (1) Fault Theory (2) Mutual Consent Theory.

Furthermore, the study of the implementation of divorce laws that evolved over the last few decades indicates that getting a divorce on the mere basis of a marital ground or on the grounds based on "fault-based theory" recognised by law is not only time consuming and nerve-racking, but it also includes a huge amount of both mental and physical agony by inducing harassment and shame on both the parties. And if, after such a lengthy and exhaustive struggle, the evidence fails to prove the marital fault, the Petitioner is not only denied the remedy demanded but it also leads to severed ties between the two parties due to the allegations and harassment faced due to trials.

Thus, in order to avert such unfortunate circumstances, the Law Commission of India proposed "irretrievable breakdown of marriage" as a separate cause for obtaining divorce in 1978. The condition for such a breakdown was established as a point of separation with very little chance of reunion.

In its 71st Report, the Law Commission of India has firmly recommended that "irretrievable breakdown of marriage" should be included as a separate ground for obtaining divorce under the Hindu laws. Further, it also emphasises on the separation period of around three years as a criterion of breakdown. On the basis of the Report, the Marriage Laws (Amendment) Bill, 1981 was accordingly introduced in Parliament but it later lapsed due to the continuous and persistent opposition it received from few women organisations.

This was followed by the series of large number of debates regarding both advantages and downsides to determine whether to include "irretrievable breakdown marriage" as a separate ground of marriage, but ultimately it had to be withdrawn due to continuous high level of resistance. Though "mutual consent" as a ground for divorce, on the other hand, has already been included in various personal laws to give speedy relief to the aggrieved parties to some extent.

The major consideration of the opposition in regard to inclusion of "irretrievable breakdown of marriage" as a separate ground for dissolution of marriage is that the ground of "divorce by mutual consent" under the Hindu Marriage Act already encompasses the arena concerned and the inclusion of the former ground would only lead to complexity of the system for both the courts and the pleading parties.

But at this point it should be noted that "mutual consent" as the name suggests, requires the consent of both the parties. If even one of the parties decides to not cooperate, the above ground does not hold any validity and even the Courts do not have any right of imposing the divorce decree on them. While the "irretrievable breakdown of marriage", on the other hand, is a ground for the Court to consider the stability of the relationship and if the Court determines on the basis of the facts of the case that the marriage by means cannot be restored or saved and even if it does get restored it would only hamper the relation between the parties, then in that case the divorce can be pronounced.

Legal Attitude
Over the period of time the Supreme Court has indeed granted the remedy of dissolution of marriage in numerous cases, not merely because of presence of either adultery, cruelty, or desertion, but also on the mere ground of irretrievability where the sacred tie of marriage between the two parties had entirely broken down; lost its trust, love, and care for the opposite parties; had a severe emotional breakdown; failed to manage their respective feelings; and lastly when even any other alternate way could not restore or preserve the marriage concerned.

Though there is no specific provision for "irretrievable collapse of marriage", the Supreme Court has, over the period of time, used its jurisdiction conferred by Article 142 of the Constitution to administer required absolute justice for the parties in marital procedures. The Court, further, felt that in extreme instances where the parties are not only involved in accusing each other, but when the very basis of their marital relationship has collapsed and cannot be rebuilt at all by any available way, the Court must provide for the decree of dissolution of marital relations on the grounds of "irretrievable breakdown of marriage".

Irretrievable breakdown did not go on to formally become law, but acquired informal validity as a principle evoked in a number of judicial decisions granting divorces. The resultant legal confusion was one of the main reasons the Law Commission took up the question again as a suo motu issue, with the 217th Law Commission of India Report in March 2009 recommending (again) that irretrievable breakdown be added as a ground of divorce to existing provisions.

In ["Naveen Kohli Vs. Neelu Kohli 2006 (4) SCC 558], the Supreme Court itself advised the Government to carefully consider incorporating "irreversible breakdown of marriage" as a reasonable ground for granting divorce under the Hindu Marriage Act, 1955.

"74. ……Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.

85. Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist….

86. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto…."

With regards to the current status of irretrievable breakdown of marriage in India, it can be said that the legislature has failed to include such breakdown as a ground for divorce, though Supreme Court in various cases like Hon'ble Supreme Court in [Sanghamita Ghosh Vs Kajal Ghosh (2007) 2 SCC 220]; [Samar Ghosh Vs Jaya Ghosh, (2007) 4 SCC 511]; [K. Srinivas Rao Vs D. A. Deepa, (2013) 5 SCC 226]; and [Sukhendu Das Vs Rita Mukherjee, (2017) 9 SCC 632] utilized its power under Article 142 of Constitution of India and dissolved considerable marriages on the same ground.

However in a very recent case of [R. Srinivas Kumar Vs R. Shametha, AIR 2019 SC 4919] directed to dissolve the marriage on the ground of irretrievable breakdown of marriage, in exercise of powers under Article 142 of the Constitution of India, more.

6..............If both the parties to the marriage agree for separation permanently and/or consent for divorce, in that case, certainly both the parties can move the competent court for a decree of divorce by mutual consent. Only in a case where one of the parties do not agree and give consent, only then the powers under Article 142 of the Constitution of India are required to be invoked to do the substantial Justice between the parties, considering the facts and circumstances of the case. However, at the same time, the interest of the wife is also required to be protected financially so that she may not have to suffer financially in future and she may not have to depend upon others.

7. This Court, in a series of judgments, has exercised its inherent powers under Article 142 of the Constitution of India for dissolution of a marriage where the Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted.

Again Supreme Court in [Munish Kakkar Vs Nidhi Kakkar, (2020) 14 SCC 657], had put an end to the bitter matrimonial dispute which lingered on for two decades between the parties, holding as under;
14. It is no doubt true that the divorce legislations in India are based on the 'fault theory', i.e., no party should take advantage of his/her own fault, and that the ground of irretrievable breakdown of marriage, as yet, has not been inserted in the divorce law, despite a debate on this aspect by the Law Commission in two reports.

15. We, however, find that there are various judicial pronouncements where this Court, in exercise of its powers under Article 142 of the Constitution of India, has granted divorce on the ground of irretrievable breakdown of marriage; not only in cases where parties ultimately, before this Court, have agreed to do so but even otherwise. There is, thus, recognition of the futility of a completely failed marriage being continued only on paper.

20. We do believe that not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties. This is even reflected in the manner of responses of the parties in the Court. The sooner this comes to an end, the better it would be, for both the parties. Our only hope is that with the end of these proceedings, which culminate in divorce between the parties, the two sides would see the senselessness of continuing other legal proceedings and make an endeavour to even bring those to an end.

21. The provisions of Article 142 of the Constitution provide a unique power to the Supreme Court, to do "complete justice" between the parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case. It is with this objective that we find it appropriate to take recourse to this provision in the present case.

Marriage is indeed considered as a sacrament under the Hindu laws and is supported very well with the help of legal ties, but by refusing to break those ties when their binding becomes unbearable, the law in such cases no more ensures the sanctity of the marriage rather it becomes mere legal obligation for the parties. It indicates a lack of consideration for the emotions and beliefs of the parties. Divorce laws protect the parties from such meaningless obligations by allowing them to break their marital ties. It is pointless to keep two people bound by a marriage connection if they cannot live peacefully together.

If we consider various scenarios where the wedlock has broken down because the parties are living apart, or the wife has only lived in the matrimonial home for a few months after marriage, or the wife has made mere allegations of cruelty and desertion against the husband, and the husband has made counter-allegations against her, or any other scenario where the parties have fallen apart from their marital relationship and their marriage thus, remains irretrievably broken, then in these cases, it is in the interest of justice that a decree of divorce is granted so that both parties can live apart but in peace.

Law cannot turn a blind eye to miserable situations where one of the spouses finds it laborious to continue. As is often put pithily, the marriage is merely a shell out of which the substance is gone. Such a course would encourage continuous bickering, perpetual bitterness, and may often leads to immorality.

Divorce should not be seen as mere tool of breaking the sacrament ties rather it should be considered as a solution and majorly an escape route to move out of an unbearable situation created due to high level of tensions and uncertainty in the wedlock making it impossible to stay in it. Such a divorce does not concern itself with the wrongs of the past, but rather with bringing the parties and children to grips with the new situation and development by working out the most satisfactory basis on which to regulate their relationship in the changed circumstances.

Is there any sort of justifiable way in which the parties to the marriage can be compelled to continue their marital life with the consort after the excess of the sufferings and the harassment? It is fairly evident that nothing could be achieved by trying to keep the parties tied forever to a marriage that in fact has ceased to exist between the parties themselves. Human life has a limited ability to focus, circumstances causing harassment cannot be permitted to proceed endlessly. Law cannot deliberately ignore such circumstances, nor would it be able to decrease to give satisfactory reaction to the necessities emerging subsequently.

The fact that when a marriage is broken without being able to be revived, it is quite unrealistic for the law to fail to notice the irretrievable breakdown of same, which is not only harmful to society but also to the interests of the parties. Therefore, the Judiciary took the firm stand on considering the necessity of including irretrievable breakdown of marriage as an independent ground for divorce and thus, over the period of time has been able to do the Justice in at least some of the cases, but there still remains the major gap due to non-existence of legislative wisdom on the same. Since Judiciary is the last hope for its citizens, it should not shut the doors and should acknowledge that "No reason to stay is a good reason to go."

Therefore, it is now high time to evaluate and amend the Hindu Marriage Act of 1955 and the Special Marriage Act, 1954, and to take immediate steps to include the "irretrievable breakdown of marriage" as one of the grounds of dissolving the marriage between the two parties.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]

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