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When divorce is the only option: Amendment to the Hindu Marriage Act, 1955

Article: When divorce is the only option

Making divorce easier, the Union Cabinet this month cleared the introduction of ‘irretrievable breakdown of marriage’ as an additional ground. This amendment to the Hindu Marriage Act, 1955, will enable either of the spouse to seek divorce on this ground.

However, it’s not the first time that irretrievable breakdown of marriage has been identified as a ground for seeking divorce. It was first recommended by the Law Commission in its report to the government in April 1978. The Law Commission had stated, “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.”

However, no step was taken regarding this advice then. Three years later, when a Bill was introduced in Parliament pertaining to this as a ground for divorce, it met with stiff opposition. It was feared that the amendment will be misused by some unscrupulous husbands to dump their wives.

In fact, before this amendment was brought in, it was actually an uncertain wicket for the courts as to where they stand on cases seeking divorce on the ground of “irreconcilable differences” when it is not a mutually consensual decision.

However, of late, the courts, particularly the apex court, have started adopting a much more ‘real’ view while dealing with such cases — as was evident in a case titled Neetu Kohli vs Naveen Kohli in 2006 where the court granted divorce on grounds of irretrievable breakdown. In this case, Justices B N Agarwal, A K Mathur and Dalveer Bhandari said: “In our opinion, wisdom lies in accepting the pragmatic reality of life and take a decision which would ultimately be conducive in the interest of both the parties.” Significantly, it was this case where the apex court recommend to the Union Government “to seriously consider” bringing an amendment in Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce.

The same year, in another case — Rishikesh Sharma vs Saroj Sharma — Justices A R Lakshmanan and Tarun Chaterjee observed that both the parties have crossed 49 years and have been living separately and working independently since 1981.

“In our opinion it will not be possible for the parties to live together and therefore, there is no purpose in compelling both the parties to live together. Therefore the best course in our opinion is to dissolve the marriage by passing a decree of divorce so that the parties who are litigating since 1981 and have lost valuable part of life can live peacefully in remaining part of their life,” said Justice Lakshmanan.

Earlier, however, this was not the situation, as the courts refused to accept that irretrievable breakdown of marriage was a ground by itself.

This view was reiterated in 1984 while dealing with a case, V Bhagat vs D Bhagat, where court stated that irretrievable breakdown of marriage could not be a ground by itself. Although the apex court remarked, “This is an unusual case calling for an unusual solution,” yet it did not approve dissolution of marriage on the premise that marriage between the two parties has broken down “irretrievable”. It clearly observed: “Merely because there are allegations and counter-allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretrievable breakdown of the marriage is not a ground by itself.”

Similarly, in 2005 while deciding a case, Ajay Desai vs Rajshree Desai, the court said the husband had failed to prove complete breakdown of marriage. His case was made more difficult as the wife had all along expressed a genuine desire to live with him. Thus, the court refused to acknowledge that their marriage had broken down beyond repair.

Published from Indian Express

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