Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider the irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955. You can consult the best Divorce lawyers in India to file a divorce petition.
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 the 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-
- That there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year] or upward after the passing of a decree for judicial separation in a proceeding to which they were parties; or
- 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 the marriage can obtain a decree for divorce . Thus the common feature is the condition of living separately for a reasonably long period of time. Talk to the best divorce attorneys in India to understand the proceedings of divorce in details.
However, the judiciary in India has started raising the demand for 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”
Recommendations of the Law Commission
In spite of recommendations of the Law Commission in its 1st Report, the Legislature did not consider it advisable to introduce irretrievable breakdown of marriage as one of the grounds for a decree of divorce.
In Saroj Rani vs Sudarshan Kumar Chadha the Supreme Court has first laid down in upholding a decree of divorce following a consent decree for restitution of conjugal rights that it is evident that for whatever be the reasons this marriage has broken down and the parties can no longer live together as husband and wife, if such is the situation it is better to close the chapter. Hire the best divorce advocates in India to file a divorce application.
If the theory of irretrievable breakdown of marriage is introduced in marriage law of India, there may be an increase in the number of divorce cases, but that will not destroy the institution of marriage nor will it affect the quality of family life.The Supreme Court in Ms. Jorden Diengdeh v S.S Chopra has made a judicial recommendation for a complete reform of the law of marriage by introducing inter alia irretrievable breakdown of marriage as a ground for divorce. The Law Commission in its 71st Report on the Hindu Marriages Act 1955 has made the following recommendation on "Irretrievable Breakdown of Marriage as a Ground of Divorce."
Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in Life, an experience of the joy that comes from enjoying in common things of the matter and of the spirit and from showering love and affection on one's offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage 'breakdown' and if it continues for a fairly long period, it would indicate destruction of the essence of marriage-irretrievable breakdown'."
71st Report of The Law Commission Of India (1978)
The Law Commission in its 71st report, submitted in 1978, dealt with the concept of irretrievable breakdown of a marriage. The report deals with an important question concerning the Hindu Marriage Act, 1955 , whether an irretrievable breakdown of a marriage can be made a ground for divorce under that Act and if so, to what extent and subject to what conditions?
The commission concluded that where a marriage has ceased to exist both in substance and in reality, divorce should be seen as a solution and an escape route out of a difficult situation. Such a divorce should be concerned with bringing the parties and the children to terms with the new situation and working out a satisfactory basis for regulating relationships in the changed circumstances. Not to dwell on the ‘wrongs’ of the past. Consult top divorce lawyers in India to have a better understanding.
Fault Theory V. Breakdown Theory
The Hindu Marriage Act governing marriages between Hindus, and the Special Marriage Act governing marriage between individuals regardless of religious persuasion, are premised on the ‘fault’ or ‘matrimonial offence’ theory for the purpose of divorce. This, in effect, means that a person can be granted a divorce if, for example, it is established that the spouse has committed adultery, or has treated the person cruelly or deserted for more than two years. Thus the person has been at fault in some way. In addition, the wife can ask for a divorce on grounds that after marriage her husband was guilty of rape, sodomy or bestiality.
Part of the fault theory is that a person cannot take advantage of his/her own wrong. Divorce can only be sought by the hurt or aggrieved party who has been at the receiving end of the other party’s offending conduct. There has been an ongoing debate about whether divorce should be granted solely on the basis of the fault of the party or whether it should be based on the breakdown of the marriage. Opinions remain divided among sociologists, lawmakers, reformers and even activists and feminists.
Marriage as a sacrament, society’s stake in the continuance of marriage, the duty of judges to effect reconciliation between the parties, and public interest are some of the major factors that feature in this debate. Would introducing irretrievable breakdown as grounds for divorce work against the interests of women, given the gender disparities and a large number of women deserted by their husbands?
SHIFT TO NO FAULT THEORY
There has been a gradual shift from a fault theory to a no-fault theory. Previously, the provision was that after obtaining an order for restitution of conjugal rights, the party which wronged could not obtain divorce rather only the person who was wronged could move the court for a divorce order if the restitution does not get executed. The Amendment of 1976 helped introduce the concept of irretrievable breakdown as it was understood that making the right available only to one party when the marriage is barely a form with no substance underneath.
The position of Children born out in the period of wedlock
The court won't pass a declaration of separation unless it is fulfilled that sufficient procedure for support of young ones borne out of the marriage has been made by the money-related limit of gatherings to the marriage. Young ones the end goal of the alteration demonstration incorporates: –
1. Minor Children including embraced children or;
2. Unmarried or widowed little girls who don't have the budgetary assets to maintain them or;
3. Children who are not physically and rationally equipped for taking care of themselves and don't have satisfactory money related assets to bolster themselves.
Thus to conclude, "it can be said that marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist. This foundation presupposes the existence of a platform build on the basis of sound understanding between the spouses". If this understanding is missing between the spouses and the marriage is a continuous malady, then it is desirable that the marriage should be dissolved with the intervention of the court. There is no useful purpose served by continuing such a marriage. Thus, on the basis of "irretrievable breakdown theory" such marriage should be dissolved for the common betterment of both the spouses.
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