Finally, a law to deal with dead marriages

Posted in DIVORCE, MARRIAGE LAWS by NNLRJ INDIA on June 14, 2010
Relationships between individuals depend largely on trust, respect and love for each other. Matrimonial relationships are more complex. For, they involve delicate human and emotional traits coupled with an intrinsic need for adjustment. Amid these complexities, both must also have breathing space to preserve their own individuality.

Realising that these complexities could impact on husband-wife relations, the Hindu Marriage Act, 1955, had made room for divorce if both or one of them realized that they were caged in a marital bond and it was better to quit then suffer. Section 13 of the act provided a long list of grounds for divorce given the complexities of human nature. One could seek divorce on the following grounds: adultery, conversion from Hinduism to another religion, unsoundness of mind, suffering from venereal or virulent diseases in communicable form for three continuous years, renouncing the world, missing for seven years or more, and no cohabitation for two years.

In addition, it entitled a woman to divorce if the husband was found to be guilty of marrying again or having a wife prior to marriage and if the earlier wife was alive; or he was found guilty of rape, sodomy or bestiality after the solemnization of marriage.

Despite the elaborate grounds, courts in the last two decades came across cases where a man and woman were living a dead marriage, unable to find a ground to untie the knot, mainly stemming from mental cruelty inflicted by one on the other.

The Supreme Court for the first time on January 13, 1995, in Romesh Chander vs Savitri [1995 (2) SCC 7], posed the question whether a marriage which is otherwise dead emotionally and practically should be continued. The problem — irretrievable breakdown of marriage — kept raising its head with frustrating regularity. A 3-judge bench of the apex court, in 2007, dealt with it elaborately in Samar Ghosh vs Jaya Ghosh [2007 (4) SCC 511].

Justice Dalveer Bhandari, the author of the unanimous judgment, examined the worldwide judicial trends starting from the 1864 British case of Prichard vs Prichard, where the court had felt that repeated acts of unprovoked violence by the wife were to be regarded as cruelty, although they might not inflict serious bodily injury on the husband.

The irretrievable breakdown of marriage theory was first formulated by the Law Commission of India in its report to the government on April 7, 1978, taking into account a two-decade long problem. This means, the Union Cabinet ratified the need to address the problem after its ill effects on marriage was diagnosed more than 50 years ago. The commission had said, “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.”

But the breakdown theory, recognized by the commission and the apex court as a solid ground for annulling a marriage, does not give licence to any husband to walk into court seeking divorce claiming that his marriage has broken down irretrievably. The courts examining such pleas must apply the strict scrutiny test, the SC had said in its 2007 judgment.

A husband or wife must show that “they have separated and the separation has continued for a sufficient length of time and one of them has presented a petition of divorce” before taking recourse to the breakdown theory. Moreover, the courts faced with such a case “no doubt, should seriously endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld,” the SC said, adding, “The consequences of preservation in law of a unworkable marriage, which has long ceased to be effective, are bound to be a source of greater misery for the parties.”

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