by NNLRJ INDIA

Can a broken marriage be stitched together?

ANIL MALHOTRA IN THE HINDU

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 ongoing monsoon session of Parliament. It seeks to amend the Hindu Marriage Act, 1955 (HMA) and the Special Marriage Act, 1954 (SMA) to provide for 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 motu took up the study of the subject and in its 217th report in March 2009 strongly made the above recommendation.

The Commission examined the existing legislation as well as a number of judgments of the Supreme Court and the 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 and the Special Marriage Act, 1954. The Commission also recommended that before granting a decree for divorce on the ground that the marriage has irretrievably broken down, the court should examine whether adequate financial arrangements had been made for the parties and children.

Although such a ground for divorce is currently not mentioned in HMA, the Supreme Court has, in appropriate cases, granted a decree of divorce on grounds of “irretrievable breakdown of marriage” by virtue of the 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 the Supreme Court granted divorce in Naveen Kohli vs. Neelu Kohli (2006) 4 SCC 558. But in February, 2009, a two-judge Bench of the court in Vishnu Dutt Sharma vs. Manju Dutt Sharma (2009) 6 SCC 379, refused to grant divorce on the ground of irretrievable breakdown of marriage. The court observed that it could not add such a ground to Section 13 of HMA as 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 (2010) 6 SCC 413, the Supreme Court, while examining the question of waiving the six-month waiting period for divorce by mutual consent by invoking its extraordinary powers under Article 142 of the Constitution, has referred the question for consideration to a Bench of three judges.

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 views in the Judgment of the Supreme Court in V. Bhagat vs. D. Bhagat (1994) 1 SCC 337 allowing divorce on the ground of irretrievable breakdown of marriage to the pronouncement of the Supreme Court in Anil Kumar Jain Vs. Maya Jain (2009) 10 SCC 415, not allowing so, there has been a variant view on this controversial subject for 15 years. The Supreme 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 the parties cannot reconcile despite best efforts. Thus, the adding of irretrievable breakdown of marriage as a ground for divorce by Parliament by amending the marriage laws may be the best possible solution for the future of limping marriages.

However, the power of the court to grant divorce on the ground of irretrievable breakdown should be exercised with extreme 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 welfare of children, must be safeguarded by 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 the sanctity of the institution of marriage should be protected as well as the individual interests of aggrieved spouses addressed. Moral and cultural values are embedded in Indian ethos and emulation of western principles in matrimonial matters is not appreciable and should not be adopted with ease. Hence, the ground of irretrievable breakdown of marriage should be introduced cautiously and hedged with safeguards so that the provision is not misused.

Nevertheless, there is also an urgent need to set up a family court in every district of the country for adjudicating all kinds of matrimonial disputes. It is really unfortunate that even after more than 25 years of enactment of the Family Courts Act, 1984, only a miniscule number of such courts have been set up only in metropolitan cities.

Also, there must be marriage and divorce laws not just for Hindus but also for Muslims, Christians, Parsis and other religious denominations in line with contemporary practices of young generations who receive higher education and have more cosmopolitan thinking of the brave new world. Times have changed and the 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 21st century. A stable family is an epitome of Indian society.

(Author of “India, NRIs and the Law,” the writer is a Chandigarh-based practising lawyer and can be reached at anilmalhotra1960@gmail.com)

http://www.thehindu.com/opinion/open-page/article697287.ece
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