Written by: Prakamya Maheshwari and Nikhil Sood, Students, Lloyd Law College, Greater Noida (U.P.)
Introduction:-
Marriage is the most sacramental process it connects the two souls to live the rest of their life together. But this sacred exercise is being abused by our society, numerous cases occurred for the terrified and mortified of both man and woman, also the increase in the deceitful behavior of the people has led to raising question on the marital life of the people, so the need of law is occurred to regulate the people and it came into force on 18th May 1955. This act is abiding by the Hindu, Jains, Sikh, and Buddhist it does not apply to the Muslims, Christian, Jews, Parsi, and the people governed by another law. Section 2 of the Hindu Marriage Act deals with the applicability.
Divorce law in India:-
The marriage in India is said to be made by the divine from heaven itself. But as the time passes the society changed, the social reforms came with that came the reform of separation of the two people from marriage as the social reformists do not want a woman to be forced to live with the man who abuses, assaults her. So when the Hindu Marriage came into force it contained a section, which is section 13 which talks about the Grounds of Divorce. In a layman’s language divorce is the separation of two people who desired not to live together ahead.
Grounds for Divorce in India: - Adultery, Cruelty, Desertion, Conversion, Insanity, Leprosy, Venereal disease, Renunciation, Presumption of death.
Special grounds for the wife to get a divorce: - Pre-Act Polygamous Marriage, Rape, Sodomy, Bestiality, Non-Resumption of cohabitation after a Decree/ Order of Maintenance, Repudiation of marriage
Irretrievable Breakdown of Marriage:-
Irretrievable breakdown of marriage means that the husband and wife cannot live together. One of them has to prove the valid reason that there is no possibility left of staying them together under the same roof. Yet this ground has not been recognized in our Act, as the ground of divorce. Further Supreme Court is showing the focus on this ground of divorce. The irretrievable breakdown of marriage occurs when the husband and the wife are living apart since 5-10 years and there is no chance for the revival of marriage.
Living in a dead and devastated relationship is will make the litigation to force them to cause cruelty or offense, this is a very futile option to keep them together in a forced marriage. The concept of irretrievable breakdown of a marriage can be widely understood by few case laws:
Case law- Kajal Kumar Ghosh v. Sanghamitra Ghosh 20th Nov. 2006
The Supreme Court with the bench comprising of Justice GB Mathur and Justice Dalveer Bhandari held that the couple should revive their issues and should live together joyfully, but it does not happen, further, with the settlement, the child resides with mother and father was permitted to visit him, but the judges said binding the separated couple together may cause cruelty to the spouse or may give rise to the crime to make the marriage null and void.
Case law- Naveen Kohli v. Neelu Kohli, AIR 2006 SC1675, (2006) 4 SCC 558
The court, in this case, observed that cruelty cannot necessarily be by physical violence it can also be by mental violence, about this the court mentioned the case law of Shobha Rani v. Madhukar Reddi. The court, in this case, held that the finding of High Court not to be upheld, and the court found that matrimonial relationship between the parties cannot be revived, so the marriage should be dissolved according to the provisions of Hindu Marriage Act and also requested the government to include the irretrievable breakdown of marriage as a ground of divorce.
Case law-Mangayakarasi v. M.Yuvaraj 3rd March 2020
The court in this case held that the marriage will not be dissolved as it depends on case to case there cannot be a straightjacket formula. The court has mainly considered the situation of the female child and said that and said that the divorce cannot be granted for usual wear and tear of marital life. The mere litigating fact that they are living separately for some time will not be considered in present facts and also the restitution of conjugal rights will be considered at the same time.
The Law Commission of India:-
In its 71st report, the law commission dealt with the concept of irretrievable breakdown of the marriage. It emphasized the main question that whether the irretrievable breakdown of a marriage can be the part of the ground of divorce. If yes then up to what extent and with what conditions?
The report mentioned that New Zealand was the first commonwealth country to deal with the issue of divorce in the 1920s. It put forward the provision that three years or more agreement for separation is grounds for divorce and partners can file the petition in the court. The first case came in New Zealand in1921, the court led down that in the matrimonial cases the parties ceased to exist interest in the private and merely living together with no interest the cause of marriage is infuriated and further it will lead to malevolent to each other.
The law commission perceived that curtailment of divorce in the matrimonial cases will lead to the injustice with both the partners. For instance, if in any case, their no impugns between the parties, but the parties strived and the marriage did not work out. Then it shows that they both are not cheerful with each other and the quintessence of the emotional and sacred bond they shared has vanished and what remains is pretence. The commission deduced that the marriage when marriage is ceased to subsist in actuality the divorce should be a solution and getaway avenue in the strenuous circumstances. This getaway route should be for the parties to bring a new change in their lives and an adequate way for managing the relationship and reside in the nightmare of the past.
Conclusion:-
I would like to commence with the famous quote by “Mahatma Gandhi- Where there is love there is life.” The marriage in our Indian society was found to be made from heaven. It is the most sacred process and should always be respected. But with the change in society with the increase of crimes the marital abuse also begins. Some partners the husband and the wife are not found to be joyful together. The women in their marital relations themselves face the cruelty of the husband and his family also she is sometimes the victim of rape. So we have all these grounds for husband and wife to get apart from each other under section 13 of the Hindu Marriage Act and begin a new life. But what strikes in once mind is why the irretrievable breakdown of the marriage is not codified in our law and why this ground of dissolution is still not recognized under section 13 of the Act. Our apex court under article 142 of the constitution has decided in many cases and emphasizes this ground. The idea of our Supreme Court if cease the partners to face the affliction as the parties had to brawl the combat with each other for the dissolution of marriage. In India termination of marriage is can only be done under the grounds given in section 13 of the Act and in that irretrievable breakdown marriage is not recognized. But in my opinion, it should be recognized as this unalloyed relation of the marriage should always be honored, but at correspondence, if the partners are infuriated with each other and there is no space for sensations, then they should not exaggerate the relationship and stick in the nightmare of their erroneous past, rather they should be given an odds by this ground to locomote a new journey. But in the long run, it entirely depends on our legislature to include or not to include the irretrievable breakdown of marriage as a ground of divorce as this can lead to the harsh situations between both the partners and it can also lead to some felony, misfortune, cruelty, etc. so this should be acknowledged in the eyes of law because until it is not recognized of law it will fall in the category of exception as ground apart from grounds mentioned in section 13 are mere exceptions and it will be genuinely very dense to prove the rational unpleasant cause occurred in their marriage by the ground of irretrievable breakdown of the marriage.
For instance, if we look at the current scenario of our society we are entirely in the life of social media, this can be an immense cause of irritation occurring in the marital life of the partners and this can lead to massive cruelty. We already have cruelty as the ground of divorce but that does not include this kind of harshness and also if compare our today’s society with our early society the proportion of cruelty differs as cruelty which existed in the early period is now not been discovered much in our today’s society as the laws became very stringent for those acts also we had developed in the technology we have our gadgets all time with us which had played a vital role as people fear to do them in house offenses, also our cyber law has played a vital role. The irretrievable breakdown of marriage must be adjoined with the ground of cruelty or must be given a different remembrance in the Hindu Marriage Act, 1955. The grounds of adultery and bigamy are despotic to prove. The wife and the husband are compelled to live together in dead relationship with irritation occurring in their relationship, the wife, husband and their children they are not living together because of the annoyance in their relationship of the partners but as there is no ground of divorce on this basis they had no option but to exaggerate their irritated relationship, so the law amended and this should be made a ground for seeking a divorce.
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