MARRIAGE AS A SACRAMENT AND CONTRACT
Marriages are said to have been made in heaven and solemnised on earth. Marriage stands at the very foundation of the social organisation and is pillar of any family.
Marriage under Hindu Law is regarded as a sacrament and the ceremonies and the institution of marriage has been legalised under Hindu Marriage Act, 1955. Hindu law insists on the character and loyalty of a marital relationship and therefore, promotes monogamy and sanctions against adultery, bigamy, etc. Hindu law, always emphasis one saving of a relationship and keeps divorcee as a last resort to end a marriage. Orders of mediation and conjugal rights show that a family court in India, tries its best to save a marriage.
Under Sharia Law, marriage is a sanctified contract which is solemnised on the payment of Mehr from the husband to the wife. In muslim marital laws, polygamy is very well allowed as per the preaches of the Holy Book Of Quran but this institution of polygamy is often abused by the husbands, since only men are allowed polygamy, and are atrocious towards the wives. Presidentially, polygamy, depends on the capacity of the husband to maintain the wives co-existently. The act of divorce or Talaq is based on the practise preached in the Quran, which is popularly known as triple talaq.
Modern society has become quite complex coupled with changes in socio-economic conditions seconded by the disintegration of the joint family structure as well as rapid industrialization and urbanisation, education and employment. Moreover, the laws have given equal status and rights to women have had a tremendous impact on the institution of marriage which is no longer treated as an indissoluble union. There has been a considerable legislative and judicial interference in the gamut of matrimonial laws all over the world. Divorce, which was earlier regarded as an evil, has codified laws which are being substantially modified and liberalized.
In India, with regards to the Hindu Marriage Act and Special Marriage Act, the Government of India has attempted to include ‘Irretrievable Breakdown of Marriage’ as a ground of divorce as per the recommendations of the 71st report of the Law Commission of India.
THEORIES OF DIVORCE
Fault theory: Fault theory, is also known as, offence theory or guilt theory. Under this theory, a marriage can be dissolved if either of the partner to the marriage has committed an offence which is matrimonial in nature. Three essentials of this theory are: (a) a guilty party, (b) and innocent party, and ( c ) an offence that is matrimonial in nature. In this case, only the aggrieved party or the innocent party has the right to seek the remedy of divorce. A striking drawback to this theory is that if both the parties are at fault, then there is no remedy available at hand.
Consent theory: This theory is the foundation of the concept of ‘divorce by mutual consent’. Both the partners to the marriage can decide to the their marriage. The procedure for divorce under this theory is that the parties live apart for a specified period of time, and also require that such application be made in two stages, before the divorce is confirmed. Importantly, related but critical issues such as maintenance, distribution of common properties and custody of children are expected to be decided by the parties.
No fault theory: In this theory, divorce is obtained by mutual consent under the amended laws of 1976. According to section 13 (1) of hindu marriage act, the petition has to be moved jointly by both the parties to the marriage that they have been living separately for a period of one year or more and they have not been living together and have agreed to dissolve the marriage. As per section 13-B (II) of the Act lays down that on the motion of both the parties made no earlier than six months after the date of the presentation of the petition referred to in sub-section (I) given above and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that averments in the petition are true, then pass a decree of divorce, declaring the marriage to be dissolved with effect from the date of decree.
SHIFT TO NO FAULT THEORY
There has been a significant movement in the current matrimonial trends which has resulted in the shift from fault theory to the no fault theory. Since there are no remedies available in the case both the parties are at fault, the evolution of the no fault theory has gained rapid motion. Previously, there was the provision wherein, after obtaining the conjugal rights, the party at fault could not obtain the divorce rathe only the aggrieved party could move to the court if the restitution could not get executed.
The amendment of 1976 helped introduce the concept of irretrievable breakdown of marriage as it was understood that making the right available only to one party when the marriage is barely a form with no substance
IRRETRIEVABLE BREAKDOWN OF MARRIAGE
Legally, ‘irretrievable breakdown of marriage’ can be defined as: “The situation that exist when either or both the spouses are no longer able or willing to live with each other, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties.”
Justice V.R Krishna Iyer had famously explained this concept: “Daily trivial differences get dissolved in the course of time and may be treated as the teething trouble of early matrimonial adjustment. While the stream of life lived in married mutuality may wash away small pebbles, what is to happen if intransigent incompatibility of minds breaks up the flow of stream? In such a situation we have the breakdown of marriage itself and the only course open for law is to recognize what is a fact and accord a divorce”.
Irretrievable breakdown of marriage is a failure in the marital relationship caused by such circumstances that neither of the parties are willing or able to succumb to and adjust to the adverse situations and try to save their marriage but they are unable to find any reasonable probability to remain as spouses and live together as husband and wife.
The 71st report submitted by the Law Commission of India in 1978 dealt with the concept of irretrievable breakdown of marriage. The report is based on the prima facie question as to the extent and conditions on which irretrievable breakdown of marriage can be included as a ground for divorce under Hindu Marriage Act.
The Report says that New Zealand was the first commonwealth country to introduce the concept of separation agreement of three or more years which could become a ground for divorce. In 1921, the first divorce was granted on the basis of irretrievable breakdown of marriage, whee the court held that, “ when the matrimonial relations have ceased to exist, it is not in the interests of the parties nor in the interest of the public to keep the man and woman bound as husband and wife in law.” The court also said that, “ in the event of such separation, the essential purpose of marriage is frustrated and its further continuance is not merely useless but mischievous.”
The leading case law of Masarati v. Masarati, opened the window of irretrievable breakdown of marriage in England. In this case Bothe parties had committed adultery. The wife had petitioned for divorce on the appeal of irretrievable breakdown of marriage. The law commission of England said in its report that, “ the objective of good divorce law are two: one is to buttress rather than to undermine the stability of marriage and two, when regrettably a marriage has broken down, to enable the empty shell to be destroyed with maximum fairness, and minimum bitterness, humiliation and distress.” On the recommendation of law commission, England introduced the divorce reforms act in 1973 where Irretrievable breakdown of marriage was made a sole ground for divorce under section 1 of the act.
The Matrimonial Causes Act, 1959 of the Commonwealth of Australia provided for divorce on the grounds of breakdown of marriage. In its report, the Law Commission observed that the provision of restricting divorce to matrimonial disability results in injustice in cases whether neither party is at fault or the fault is of such a nature that neither party wishes to divulge it and yet the marriage has ceased to exist. In other words, Irretrievable Breakdown of Marriage refers to a situation whether emotional bonds, respect, etc, which is the very foundation of a marriage have disappeared and only a façade in the name of marriage remains. The Law Commission mentions the where a marriage has ceased to exist both in substance and in reality, divorce has to be taken as a solution to escape from a difficult solution. The provisions of such a divorce should be primarily concerned with bringing the parties and the children to accept the new situation and to work out a satisfactory basis for regulating relationships in the wake of the changed circumstances, rather than finding faults during the divorce proceedings.
STATUS OF IRRETRIEVABLE BREAKDOWN OF MARRIAGE IN INDIA
Article 142 of the Indian Constitution is a provision wherein, the Supreme Court of India is empowered to pass such ‘decree or order’ as may be necessary for doing complete complete justice between the parties. The court is not prohibited by lack of jurisdiction or authority of law.
Irretrievable breakdown of marriage is not set as a ground for divorce in matrimonial laws in India, but it should badly noted that the divorce on the ground of irretrievable breakdown of marriage can only be granted by the supreme court of India.
CASE LAWS THAT MARK THE EXISTENCE OF IRRETRIEVABLE BREAKDOWN OF MARRIAGE IN INDIA
In the case of Dastane v. Dastane, the couple involved in the judicial proceedings for over a decade with the petition of the husband for judicial separation being dismissed. This case drew the point for the concept of irretrievable breakdown of marriage as a necessity.
In Varalashmi v. N. V. Hanumanth Roa, the husband having obtained a decree for judicial separation, was not allowing the wife to recommence co-habitation. After completion of the specified period, the husband petitioned for a decree of divorce. So, here it was argued that the husband cannot be granted divorce here because that shall lead to his gaining advantage out of his own fault. But the divorce was granted because co-habitation has to be through mutual agreement.
In the case of Jayachandra v. Aneel Kaur, the husband had complained about the humiliating behaviour of the wife and seeked divorce by mutual consent under section 13 of the hindu marriage act, 1955 to avoid unnecessary complications. But the court looked into the evidence and passed a decree of judicial separation. In the appeal, Supreme Court decided that there was substantial existence of cruelty on the part of the wife and the marriage had irretrievably broken down. The court also stated that it has the knowledge that this concept can be used to provide a decree for marriage but it continued with a view to cmplete justice and shorten the mental agony of the parties.
It was explained in the case of Ajay Sayajirao v. Rajashree Ajay Desai that when there is no alleged fault ground proved, relief cannot be granted on ground of irretrievable breakdown of marriage.
A differing stance was taken in the case of Dinesh Kumar Mandal v. Mina Devi from Ajay Sayajirao v. Rajashree Ajay Desai, where it was held that a couple living separately for many years justify the fact that the marriage is broken beyond repair and even though the alleged ground of adultery was not proven here, divorce was granted.
In Kanchan Devi v. Promod Kumar, the parties were staying separately for over a period of ten years and every attempt at any reconciliation turned futile. In its order, the court invoked its jurisdiction under Article 142 of the Constitution which has the provision to provide “any decree or order as is necessary for doing complete justice in any case or matter pending before it.” The memorandum of settlement clearly explained that this was a case of divorce by mutual agreement but the observations of the court clearly reinforced the fact that irretrievable breakdown of marriage as a model to claim divorce has seeped into the decisions of the courts.
In Sangamitra Ghose Vs. Kajal Kumar Ghosh, reported in 2007 2 SCC page 200, it has been held, “We are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties beyond repair and that the marriage has been wrecked beyond the hope of salvage and therefore public interest and interest of all concerned lies in the of the recognition of the fact and to declare defunct de jure what is already defunct de facto.”
In the case of Navin Kohli vs Neelu Kohli, the Supreme Court made a strong plea to the Union of India for incorporating irretrievable breakdown of the marriage as a separate ground for divorce under Section 13 of the Hindu Marriage Act 1955 and amending the Hindu Marriage Act.
MERITS AND DEMERITS OF IRRETRIEVABLE BREAKDOWN OF MARRIAGE
Merits
The law of divorce cannot be based mainly on the grounds of who’s fault it is. The guilt has to be proved. Family courts need to be presented with concrete evidences of human behaviour which has lead to filling of divorce. Because of such process, the judges and lawyers try to seek evidences like scavengers which leads to exposé of the most obscene kind and the judges are confronted with it. Thus, ground of irretrievable breakdown of marriage as a grand for divorce would not require either of the parties to prove the offences of the opposite parties. All the allegations would be freely hurled across the courtroom.
Irretrievable breakdown allows both the parties or either of the parties to end a marriage at will and barring from a long stretched process of mental agony. It allows the marriage to end at pleasure.
One cannot say that it is an enhancement of the respondent for marriage if there are tens of thousands of men and women desperately eager to regularise their position in the community and they are unable to do so. People should be able to marry again where they can obtain a death certificate in respect of a marriage already long since dead. The objection that irretrievable breakdown as a ground of divorce is vague has been already dealt with.
Demerits
It is necessary that no one uses this ground for their advantage. The spouse who is responsible fo the breakdown for marriage should not be able to rely on this ground to receive decree of divorce against his or her partner’s will. If one spouse authorises the other spouse to receive divorce against the will after separation period, it will stand against the principle of complete justice and will allow one person to take advantage of his/her own wrong.
According to clause (ii) of sub section (1A) of section 13 of the Act, either party to a marriage, whether or not solemnised before or after the commencement of this Act, could present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for an amount of 1 year or subsequently once the passing of a decree for the restitution of legal right in proceedings to that they were parties. This provision clearly contemplates that even the party that has been within the wrong in to date because it didn't adjust to a decree for restitution of conjugal rights may also apply for a decree of divorce on the ground that there has been no restitution of legal right as between the parties to the wedding for a amount of 1 year or upwards once the passing of the decree for restitution of conjugal rights in a very proceeding to that they were parties. Such a celebration, though guilty, would therefore be taken advantage of its own fault. It cannot thus be aforesaid that beneath the availability of the Hindu marriage Act, as they stand at this time, not everybody may be allowed to require advantage of his own wrong.
Thus, once the marriage has broken down beyond repair, it'd be unrealistic for the law to not note of that reality, and it'd be harmful to society and injurious to the interests of the parties if the legal bond is sought-after to be maintained notwithstanding the disappearance of the emotional substrate. Such a course would encourage continuous fuss perpetual bitterness, and should typically result in immorality. Wherever there has been a long amount of continuous separation, it should fairly be surmised that the marital bond is on the far side repair. the marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases doesn't serve the quality of marriage; on the contrary, it shows scant regard for the sentiments and emotions of the parties.
Since there's no acceptable manner within which a relation may be compelled to resume life with the consort, nothing is gained by attempting to stay the parties tied for ever to a marriage that in truth has ceased to exit. Marriage is lifelong inhabitation within the home. Once the prospect of constant cohabitation has ceased, the legal tie ought to be dissolved.
CRITICISM OF IRRETRIEVABLE BREAKDOWN
The concept of irretrievable breakdown of marriage to be made a ground for divorce below the Hindu Marriage Act, 1955 has been although a lot more debated however it has similarly been criticised at various points by way of the state high courts and The government of India.
Criticism by the high court: High court has in many instances, expressed disagreement with the suggestion that the Hindu Marriage Act, 1955 ought to be amended with a view to making irretrievable breakdown of marriage as a great ground for grant of a decree of divorce. The judges of the excessive Courts have expressed themselves in opposition to the introduction of irretrievable breakdown as a ground of divorce. One of the points made within the reply of the high court is that it is extremely tough to mention that the husband and wife might never live together merely because there has been a rift between them and in the interim it appears that there may not be any prospect of they're dwelling together.
The mere truth that there has been a rift between the parties or that they are for the time dwelling apart does now not mean that the marriage has come to a stop. It's far possible that what may appear to one person to be irretrievable may additionally appear to another as not yet beyond repair. but this kind of state of factors can not be allowed to preserve indefinitely, and their must arrive a factor of time whilst one of the parties ought to be authorised to seek the judgment of the courtroom as to whether or not there may be or there isn't always a possibility of the marriage being retrieved.
Criticism by government: The government of India, Ministry of education, department of Social Welfare, has expressed the review that making irretrievable breakdown of marriage a ground for supply of a decree of divorce is redundant in the light of the reality that sufficient grounds overlaying ‘irretrievable breakdown of marriage’ exist in the Hindu Marriage Act and the marriage laws amendment Act, 1976, for the reason of seeking divorced.
CURRENT LAW REGARDING IRRETRIEVABLE BREAKDOWN
As per the news report dated February 19, 2015 and July 12, 2015, the present NDA government might reverse the Marriage Law Amendment Bill 2013 which was introduced by the former UPA Government. Irretrievable Breakdown of Marriage had been incorporated as Section 13C in the Bill. The bill was passed by the Rajya Sabha on 26th August 2013, however could not be taken up for discussion in the Lok Sabha due to the change in the Government at the Centre.
Though the present Government had contemplated tabling the bill again, however the then Law Minister Mr Sadanand Gowda admitted that the Government was still considering the implications of the Bill as more than 70 representations had been received against the Bill.
Even though the Bill was drafted to remove the lacuna as far as Divorce law is concerned, groups opposing the Marriage Laws Amendment Bill contend that the Bill if passed will cause an increase in illegitimate and live-in relationships thereby destroying the institution of marriage and family values. Another fear, the groups have is an increase in the crime rate and undue litigation.
Given the present scenario, it appears that the Marriage Laws Amendment Bill will not see light of the day atleast in the near future, inspite of the Hon’ble Supreme Court time and again pressing for its inclusion.
Conclusion
One must also take consideration of the fact that it is the choice of the parties to a valid marriage to understand the importance of the institution and to preserve its sanctity. With the changing requirements, attitude and aptitude, the society has drastically changed and it is very difficult for the married couples to cope with change. While adjusting in a new atmosphere in the matrimonial home, spouses may commit, knowingly or unknowingly, with or without intention, whether economical dependent or independent, some kind of mistakes which may lead to a communication gap between them and create havoc in the matrimonial home. Where both the parties of a valid marriage are at fault of any kind of matrimonial offence, it is difficult to prove which one is an aggrieved party.
According to the Doctrine of Recrimination, no remedy can be granted to the party who is at fault. It is imperative in law to have one party as innocent and another at fault to provide a matrimonial relief. In case of no fault theory of divorce, it is not necessary to prove which party is at fault. There may be many reasons based on which sweetness of matrimonial relationship is at risk. If the parties prove with reliable evidence on record that their marriage is beyond all possible repairs then law should understand the reality of the facts and should help the parties to the marriage which has broken down irretrievably.
The breakdown theory of divorce which is inherently attached with no fault theory of divorce represents the modern view of divorce. Under this theory, the law realises a situation and says to the unhappy couple: if you can satisfy the Court that your marriage has broken down, and that you desire to terminate a situation that has become intolerable, then your marriage shall be dissolved, whatever may be the cause. The marriage can be said to be broken when the objects of the marriage cannot be fulfilled. When there is not an iota of hope that parties can be reconciled, it can be considered as irretrievable breakdown of marriage.
It must be noted that irretrievable breakdown of marriage is a concept that is necessary to be recognised judicially. This concept surely leads to divorce being provided by the courts more easily but it also necessary to underline the fact that according to the provisions, such divorces have to be granted only after a thorough understanding of the circumstances by the courts and an assessment if the marriage is actually broken beyond repair. Owing to the present understanding of marriage which is part sacramental and part contractual, it is to be understood that a marriage which is not working and lacks any substance irretrievably is better off broken. Since decades, there have been numerous judgments that re-iterated the need for this concept and having finally been enacted, this amendment comes as a blessing for numerous couples stuck in a broken marriage without any recourse.