Irretrievable breakdown of marriage

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Question asked on: 05/04/2015

Irretrievable breakdown of marriage in India especially in respect of Hindu Marriage Act.

Advised by: Shivendra Pratap Singh,

Basic Principle

The No-fault divorce is a divorce in which the dissolution of a marriage does not require a showing of wrongdoing by either party. It allows a family court to grant a divorce in response to a petition by either party of the marriage without requiring the petitioner to provide evidence that the defendant has committed a breach of the marital contract.

Probably the most well-known no-fault law was enacted in the state of California, and signed by Governor Ronald Reagan, coming into effect on January 1, 1970. At that time, lawyers and judges objected to the legal fictions used to bypass statutory requirements for obtaining a divorce, which had become more commonplace since the mid-20th century. Since at least 1985, no-fault divorce has been available in all 50 U.S. states and the District of Columbia.

Origin

The earliest precedent in no-fault divorce laws was originally enacted in Russia shortly after the Bolshevik Revolution. They were legislated in the series of decrees that issued in early 1918. The decrees included non judicial dissolution of marriage by either party and mandatory provision of child-support. The purpose of the Soviet no-fault divorce laws was ideological, intended to revolutionize society at every level.

California was the first U.S. state to adopt what are now called “no-fault” divorces in the United States in 1969. California’s law was framed on an earlier and roughly contemporaneous effort, of the non-governmental organization, National Conference of Commissioners on Uniform State Laws, which began drafting a model of no-fault divorce statute for states to consider in 1967.

In India

Vishnu Dutt Sharma versus Manju Sharma, 2009 (SC) : The Supreme Court of India in its decision held that On a bare reading of Section 13 of the Act, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce.

This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.

If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts.

At one time, India used to have one of the lowest divorce rates in the world. Being a society largely based on a traditional value system, couples were both legally and socially dissuaded from seeking a divorce.

At one time, India used to have one of the lowest divorce rates in the world. Being a society largely based on a traditional value system, couples were both legally and socially dissuaded from seeking a divorce.

The wave of globalization in the nineties ushered in further changes in the Indian social institutions, especially in urban areas. Couples living and working in cities and metros, were exposed to more economic and relationship options, which prompted them to break out of unsatisfactory or unequal marriages.

However, the divorce procedure in India continues to be one of the most protracted in the world, especially in cases where either party contests the divorce.

Some common grounds for no-fault divorce are that the marriage is “irretrievably broken,” or parties to the marriage are mutually consent for divorce.

Irretrievably broken

The Rajya Sabha (Upper house of the Parliament) has approved an amendment to the Marriage Law Amendment Bill 2010, according to new section 13(c), which would be incorporated in Hindu Marriage Act; marriage may be dissolved on the ground of irretrievable breakdown of marriage.

Irretrievable means not able to be retrieved, recovered, or repaired. Legally speaking, “irretrievable breakdown of marriage” is defined as: The situation that exists when either or both 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.

Until now “Irretrievable breakdown of marriage” is not a ground for divorce under Hindu Marriage Act 1955. So our legislature is trying to provide “Irretrievable breakdown of marriage” is a ground for divorce.

Many NGOs have been demanding that wife is the most exploited party in failed marriage, she has no right to get divorce on the ground of “Irretrievable breakdown of marriage”, in each case she is required by the law to prove cruelty, desertion and other grounds provided in section 13 of HMA.

Divorce by Mutual Consent is the fastest way to divorce but it is based upon the will of husband. If he refuses to give consent, wife has no remedy except to file petition under section 13.

Section 13 of the Hindu Marriage Act, 1955

This section provides several grounds for divorce e.g. cruelty, adultery, desertion etc. but no such ground of irretrievable breakdown of the marriage has been mentioned for granting divorce.

Marriage law amendment bill 2010 Law Commission of India in its 71st Report(1978) on “Irretrievable Breakdown of Marriage as a Ground of Divorce”, recommended amendments to the Hindu Marriage Act, 1955 to make irretrievable breakdown of marriage as a new ground for granting a decree of divorce among the Hindus.

Clause 1 of Section 13C : A petition for the dissolution of marriage by a decree of divorce may be presented to the district court by either party to a marriage [whether solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 2010], on the ground that the marriage has broken down irretrievably.

According to clause 2 of section 13C : The court hearing a petition referred to in sub-section (1) shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years immediately preceding the presentation of the petition.

The Irretrievable Breakdown of Marriage clause allows a woman to exit on the premise that she is unfulfilled or unhappy in a marriage after a three year period of separation. The wife also bears the right to block a divorce thrust upon her if she can prove she will be in grave financial hardship.

Clause 1 of section 13D : Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 13C, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage.

This bill is still pending in Lok Sabha ( Lower house of the Parliament). Huge objections have been raised by different sections of our society against the proposed amendment. Members of Save Family Foundation(NGO), raised their voice that proposed amendments would emerge as a key instrument for dissolution of marriage, loss of family values and unrest our society with mass conversion from Hindu to other religion.

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Shivendra Pratap Singh

Advocate, Lucknow

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