This article is written by Saurabh Mishra, a student of HNLU.
In our country owing to various factors, it is becoming difficult for the disgruntled couples to live together on the ground of compatibility. Divorce by Mutual Consent (Section 13-B) recognized this reality and a right to apply for divorce by mutual consent was conferred. There are some couples who cannot avail the remedy of divorce by mutual consent because one of the parties tries to bargain or put in a condition which will eventually result in harassment for the other party. Giving recognition to divorce by irretrievable break down of marriage would be next logical step in fine tuning our divorce laws according to changing societal needs.
Today’s wife is not prepared to live at the mercy of her husband and members of his family. She is filled with confidence and self-respect. She is keen to become self-dependant and face the challenges of life. She would rather live separately than to stay united while unhappy.
Supreme Court in various decisions while citing 71st and 217th Law Commission Report has held that marriage is sharing of happiness and misery which life has to offer. Living apart is an indication of disruption of the essence of marriage, and if it continues for a fairly long period, it would imply irretrievable break down of marriage. If a marriage is emotionally and practically dead and there was no chance of its revival and continuation then in these circumstances divorce should be granted on the ground of irretrievable break down of marriage.
Need for Irretrievable Break Down of Marriage as a ground for divorce
Restricting the grounds of divorce to a particular offence or matrimonial disability results in injustice in those circumstances where the situation is such that although none of the parties is at fault or the fault is of such a nature that parties to the marriage do not want to disclose it or there has arisen a situation in which the marriage cannot be worked. Moreover, there is no utility in maintaining the marriage as a facade when the emotional and other bounds which are essential to a marriage have disappeared.
The Marriage Law Amendment Bill, 2013
On August 26, 2013 the Rajya Sabha passed the Marriage Law Amendment Bill, 2010 which is being hailed as a historic piece of legislation in a patriarchal society like India. The bill has lapsed in Lok Sabha, but the present BJP Government is keen on reintroducing the bill. This bill is aimed at making divorce friendly for women as it provides for the wife to get a share in the husband’s immovable property after “irretrievable break down of marriage”. The courts are empowered to decide the amount of compensation from the husband’s inherited and inheritable property for the wife and children once the marriage legally ends.
The Bill permits both the parties to file for a divorce on the ground of irretrievable breakdown if both the parties have lived separately for at least three years before filing such a petition.
The Marriage Law Amendment (Bill), 2013 inserts new section 13C, 13D and 13E in the Hindu Marriage Act, 1955.
Divorce on the Grounds of Irretrievable Break Down of Marriage
A divorce petition on the ground of irretrievable break down of marriage can be presented by either party to a marriage to the District Court. This amendment will have retrospective application; it will apply to the marriages solemnized before the commencement of the Amendment Act.
According to the Hindu Marriage Act, 1955 District Court means a city civil court or principal civil court of original jurisdiction or any other civil court which may be specified by a State Government and a petition for divorce. Moreover a petition for Divorce can be presented in the District Court within the local limits of whose jurisdiction a) the marriage was solemnised b) the respondent at the time of the presentation of the petition resides or the parties to marriage last resided together.
The court before proceeding to the merits of the case must be satisfied by the evidences produced that parties have been living apart for a continuous period of not less than three years immediately preceding the presentation of the petition.
The amendment act further states that while computing the three-year period no account shall be taken of any one period (not exceeding three months in all) during which the parties started to live with each other.
The husband and wife shall be treated as living separately if they are not living with each other in same household. If the parties are living with each other it will be construed as living with each other in the same household.
Wife’s Right to Oppose the Petition on Ground of Hardship
When a wife is respondent in the matter of Divorce by irretrievable break down of marriage then she can oppose the petition on the ground that it will cause “grave financial hardship” to her and in all circumstances it would be wrong to dissolve the marriage. The term “grave financial hardship” has not been defined in the bill. It leaves scope for ambiguity and misuse.
The court while dealing with a petition dealing with irretrievable break down of marriage shall consider all the circumstances, including the conduct of the parties to marriage and interests of those parties and children or others persons concerned.
If it is proved in court that if divorce is granted it would result in grave financial hardship to the wife then it can either dismiss the proceedings or if stay the proceedings until arrangements have been made to eliminate the hardship. There is no mention of kinds of arrangements to be made which will be sufficient to eliminate the hardship.
Position of Children
The court will not pass a decree of divorce unless it is satisfied that adequate provisions for maintenance of children borne out of the marriage has been made according to the financial capacity of parties to the marriage.
Children for the purpose of the amendment act includes: –
- Minor Children including adopted Children or;
- Unmarried or widowed daughters who do not the financial resources to support them or;
- Children who are not physically and mentally capable of looking after themselves and do not have adequate financial resources to support themselves.
Share in immovable and movable property
On a petition made by wife, the court may while passing the decree of divorce for irretrievable break down of marriage, order the husband to give compensation which will include a share in his share of immovable property (other than inherited or inheritable immovable property) and such amount by way of share in movable property for the settlement of her claim. The court while determining the amount of compensation shall take into account the value of inherited or inheritable property of the husband. By incorporating such provision, the Legislature has recognized women’s right to matrimonial property and aims at providing security to women in terms of property that has been acquired or maintained by the combined efforts of both the parties. Wife’s emotional and financial contribution would be taken into consideration on the failure of marriage. The wife would be given a share in the property, irrespective of whose name it stands. Judges are given freedom to use their discretion while allotting share in the property.
Similar amendments have been incorporated into Special Marriage Act, 1954 by adding Section 28A, 28B and 28C.
According the amendment the wife can oppose a husband’s plea for a divorce. The husband will have no such rights to oppose if the wife moves to the court on the same grounds. The wife and children are given well defined share in the husband’s immovable property in case of divorce.
Jorden Diengeh v. S.S. Chopra AIR 1985 SC 395
Supreme Court forwarded a copy of its order to Ministry of Law and Justice asking them to incorporate uniform civil code and to include provisions for Irretrievable break down of marriage.
Naveen Kohli v. Neelu Kohli AIR 2006 SC 1675
The parties were living separately for more than 10 years, and a very large number of civil and criminal proceedings were initiated by the respondent against the appellant. The court held that the matrimonial bond between the parties is beyond salvage. The court further held that preservation of such marriage would be a greater source of misery for both the parties. In this case also Supreme Court sent the copy of the judgment to Ministry of Law and Justice.
Satish Sitole v. Smt Ganga AIR 2008 SC 3093
In the instant case the parties were living separately for 14 years out of 16 years of marriage. On the basis of material placed before the court, it was convinced that any further attempt at reconciliation would be futile and would not be in the interest of the parties. It held that continuance of such a marriage would amount to cruelty for both the parties.
It has been held by Supreme Court that irretrievable break down of marriage itself is not sufficient to dissolve the marriage; the ground should be used in extreme conditions, where the situation warrants the court should end the agony and bitterness by granting divorce and where there is no scope for reconciliation.
Over-reliance on litigation and legislation on matters like personal law would not help us in achieving a judicious balance. The Marriage Amendment Bill aims to strengthen the financial position of women in cases of matrimonial discords. However, it fails to create safeguard to check abuse of the provisions. In the statement of objects and reasons, it has been recognized that the Hindu Marriage Act and Special Marriage Act were inadequate to deal with the situations where there was irretrievable break down of marriage. By incorporating such provision, many couples will now be saved from disgrace and humiliation.