By: Priya Goyal
Second Position in SKL Article writing competition 2019-20
Under Hindu Marriage Act, 1955 primarily there are few theories under which divorce is granted:-
(i) Guilt theory or Fault theory,
(ii) Consent theory,
The Irretrievable breakdown theory of divorce is the third and the most controversial theory in legal jurisprudence based on the principle that marriage is a union of two persons based on love affection and respect for each other. If any of these is hampered due to any of the reason (say cruelty, desertion, adultery, insanity etc) and if the matrimonial relation between the spouses reach to such an extent from where it becomes completely irreparable that is a point where neither of the spouse can live peacefully with each other and acquire the benefits of a matrimonial relations, than it is better to dissolve the marriage as now there is no point of stretching such a dead relationship, which exists only in name and not in reality.
The breakdown of relationship is presumed de facto. The fact that parties to marriage are living separately for reasonably longer period of time (say two or three years), with any reasonable cause (like cruelty, adultery, desertion) or even without any reasonable cause (which shows the unwillingness of the parties or even of one of the party to live together) and all their attempts to reunite failed, it will be presumed by law that relationship is dead now.
Merits of the theory
The only merit of the theory as has been propounded by the jurists is that a marriage, which in practice is considered to be sacramental institution, should be based on ground on which a sound marriage is based that is tolerance, adjustment and respecting each other. If any of the party to marriage is not ready to live with the other party the relationship will not be a happy relationship. Stretching such a relationship will do no good, rather will develop hatred and frustration among the parties for each other. Therefore, to protect the sanctity of marriage, to reduce the number of unhappy marriages and to prevent from getting wasted the precious years of life of the spouses, it is necessary to dissolve such a marriage.
However, here the point to be noted is that the parties to marriage do not get separated out of their own free volition but on the basis of court coming to conclusion that marriage is beyond repair or cannot be saved by any means.
Demerits of the theory
The Law Commission Of India in chapter 4 of the 71st report has dealt in detail the demerits of the irretrievable breakdown theory. The two main oppositions discussed in the report are as follows:
(i) It will make divorce easy. It will allow the spouses or even to any one of the spouse to dissolve the marriage out of their own pleasure.
(ii) It will allow the guilty spouse to take the advantage of his own fault by getting separated and dissolving the marriage.
Status under Indian Law
Irretrievable breakdown of marriage is not a special ground for divorce under Hindu Marriage Act, 1955 unlike the other three theories of divorce. However an attempt has been made to introduce the concept in section (13) (1A) which states that:
Either party to 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 marriage for a period of [one year] or upward after the passing of decree for judicial separation in a proceeding to which they were parties; or
(ii) There has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upward after the passing of the decree for restitution of conjugal rights in a proceeding to which they were parties.
In either case if the parties are not able to resume cohabitation for one year, any of the party to marriage can obtain a decree for divorce. Thus the common feature is the condition of living separately for a reasonably longer period of time.
However the judiciary in India has started raising the demand of such a special ground under the present law in force. The Supreme Court Of India in a recent case of Naveen Kohli v Neelu Kohli even asked the parliament to seriously consider the matter and bring an amendment in the present law. The apex court said that:
“Before we part with the facts, on the consideration of the totality of the facts, this court would like to recommend to the Union Of India to seriously consider for the bringing of the amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for grant of divorce. A copy of this judgment be sent to the Secretary, Ministry of Law & Justice, Department of Legal Affairs, Government of India for taking appropriate steps”
In fact the Law Commission Of India, on reference made by the Central Government, in its 71st report has made a detailed analysis of the theory and has described how exactly it could be incorporated in the present law. In 217th report the law commission has further urged the government to make amendments to introduce the theory.
Present Law Of Separation Under Hindu Marriage Act,1955
In case of any dispute between the parties, the remedy provided under the Hindu Marriage Act, 1955 is:
(i) Restitution of conjugal rights (Section 9)
(ii) Judicial Separation (Section 10) &
(iii) Divorce (Section 13 and 13B)
(i) Section 9: Restitution of Conjugal rights
When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
[Explanation- Where the question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]
Thus the essential requirement are:- withdrawal by one party from the society of the other, without any reasonable cause or excuse and there should be no legal ground as to why the decree should not be granted.
However the critiques of this remedy has considered it to be most inhuman and obnoxious. It is considered to be worst tyranny and worst slavery. The critiques states that husband or wife cannot be enforced to live with each other when the body and soul is not willing for it and therefore it should be abolished.
However it could be said that the critiques did not look at the broader purpose which it intend to serve and present only the narrow view. They sound like a biased person, whose mind has just come out of the old patriarchal thinking and want to safeguard the interest of women. However it is submitted that Section 13 (1A) (ii) gives further remedy of obtaining divorce, if the parties, even after living apart for one year, feel that still they cannot live with each other or there attempt in this one year to reunite failed, any one of the spouse can present a petition for divorce.
The time of one year given is a reasonable and sufficient for parties to make an attempt to get reunited. Therefore contrary to the view of critiques it serves two purposes: firstly give the parties one more chance to resume cohabitation and secondly even if their attempt fails than give them the remedy of divorce. Therefore it rather serves a more public good with no harm, with no force on either party to live with each other, as opposed.
(ii) Section 10: Judicial Separation and Section 13: Divorce
(1) Either party to a marriage, whether solemnized before or after the commencement of this act, may present a petition praying for a decree of judicial separation on any of the ground specified in sub section (1) of section 13, and in case of a wife also on any of the grounds specified in sub- section (2) thereof, as a grounds on which petition for divorce might have been presented.
(2) Where a decree of judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied on the truth of the statements made in such petition, rescind the decree if it consider it just and reasonable to do so.
The grounds on which the judicial separation will be granted are the grounds of divorce based on fault theory. Section 13 (1) specifies the fault ground on which both husband and wife can seek divorce whereas sub- section (2) specify the special grounds for wife to seek divorce. The grounds specified in sub- section (1) are:
(i) Adultery ,
(iii) Petition is filed,
(iv) Either of the party has ceased to be a Hindu,
(v) Either of the party is of unsound mind, or is suffering from continuous and intermittent mental disorder of such a kind and to such an extent that petitioner cannot reasonably be expected to live with the respondent,
(vi) Suffering from virulent and incurable form of leprosy,
(vii) Suffering from venereal disease of incurable form,
(viii) Either of the party has renounced the world,
(ix) Either of the party is legally dead that is he/ she has not been heard or seen for last seven years.
The special grounds for divorce of wife under sub- section (2) are:
(i) In case of marriage solemnized before the commencement of this act, if the husband marries again, before the commencement of this act, and: in case whether the marriage was solemnized before or after the commencement of this act, if the other wife of the husband was living at the time of solemnization of marriage as well as at the time of the presentation of the petition.
(ii) The husband, since the solemnization of marriage has been guilty of rape, sodomy and bestiality.
(iii) In case if a decree has been passed for a suit under section 18 of Hindu Adoption and Maintenance Act, 1956 or in proceeding under section 125 of code of criminal procedure, 1973 or under corresponding section 488 of code of criminal procedure, 1898, has been passed against the husband awarding maintenance to the wife, and since the passing of such decree, notwithstanding whether the wife was living separately or not, the couples have not been able to resume cohabitation, for a period of one year or upward;
(iv) If the marriage of the wife was solemnized before she attained the age of fifteen years, notwithstanding of the fact whether the marriage was consummated or not, if on attaining the age of fifteen years she repudiated the marriage but before the attainment of age of eighteen years. This clause is applicable for marriages solemnized before as well after the commencement of the act.
Divorce and judicial separation are two different concepts, based exactly on same grounds. Whereas in divorce the matrimonial relations completely come to an end, parties come back to the status of single, and both the parties can now remarry. But such is not the case in judicial separation. Though granted on same grounds, it only put a break on the matrimonial relations of the party and it does give any effect of divorce.
However the purpose for which the decree for judicial separation is granted is that during the period of separation, parties make an attempt to get reunited. This could be attributed from the fact that sub- section (2) of section 10, states that this decree can also be rescinded by the court, on petition presented by either of the party. Which means if parties want to make an attempt to resolve their dispute, they can make an application for rescinding the decree. But if within one year they are not able to cohabitate again, either of the party can file a petition for divorce under Section 13 (1A) (i).
Section 13- B: Divorce by mutual consent
(1) Subject to the provision 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 (68 of 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 presentation of 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 mean time , the court shall, on being satisfied, after the hearing the parties and after making such enquiry 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 decree.
Based on the mutual consent theory the essential requirement as has been laid down are; firstly parties must be living separately for one year, secondly that they have not been able to live together and thirdly and most importantly that they mutually agree to get separated.
Except for decree of divorce under fault ground, the decree for restitution of conjugal rights, judicial separation and decree of divorce under consent theory, requires living separately for one year. This period, as has been discussed earlier also, is a reasonable period in which parties can realize their mistakes and make a second attempt to live together. But if they are not able to resume their marriage, it is better to give the decree of divorce as marriage in such cases completely breaks.
Lacunas in the existing laws
Still there are certain technicalities which obstruct the court or the parties in giving or obtaining decree of divorce. Like for example:
(1) Under consent theory the consent of both the parties is necessary for the decree of divorce. However it may so happen that one of the party just to harass the other party out of anger, jealousy, ill will etc may withheld the consent, which will be a major hindrance in obtaining divorce by parties or in giving divorce by courts.
(2) Under fault theory the requisite condition is that one of the party must be at fault of any of the matrimonial offences, while the other party must be completely innocent. If it is found that other party is also at fault of any of the matrimonial misconduct, the divorce will not be granted.
(3) Again under fault theory there are certain technicalities, due to which the courts are not able to give decree of divorce, which cause such a great hard ship to the innocent party, leading to a great miscarriage of justice.
(4) Therefore there is a demand for irretrievable break down of marriage, as a separate ground for divorce, which notwithstanding these technicalities will empower the court to dissolve the marriage between the parties.