DIVORCE LAW AMENDMENT AS PER LAW

COMMISSION’S RECOMMENDATION IN
2009 – NOT YET DONE

Another case of :- JUSTICE DENAIED when

JUSTICE DELAYED
Groom: Aged about 40yrs, Bride: 41 yrs, Son: Aged about
12yrs

PAST

On or about 1984, I, at the age of 15 years proposed to a 16 year

girl – and the story began. I forgot that I lost my father at the age
of 11 years , had a sister aged 6 years and my widow mother. I had
lots of responsibilities to carry out as the only son of my beloved
father. In a romantic mood, I forgot the difference in financial
status of the two families. The story could have been entirely
different if the girl would have refused me then and there, but she
accepted me. But her family was “matured” and they opposed it in
every possible way. I had my first big exam (10+) just at door. In
spite of broken heart I tried my best and got 70% in the exam.

Thereafter I could realise the real state of affairs, as the girl

became totally silent. But I wanted to meet the girl at least once
and finally found her in July,1988, in her college,15 km away from
her home. In between, the girl never informed me about her
whereabouts. Again on that day the girl agreed to “CARRY ON”
the romance for the time being.

In 1994, myself got married after lots of inside drama from her
family. Her father could never accept me “from heart” as an
eligible husband of his daughter and he did a “FAVOUR” to us; by
managing to get a job for her, in a school 65 km away from her in-
law’s house, just a month before the said marriage. Meantime I
managed to make a house with the proceeds received from LIC,
obtained after my father’s death. At that time, I was looking after
the “small” business left by my father. But her father could never
rely on my financial condition and his daughter continued with the
service by ferrying daily up and down 130 km. She used to stay
very often at her father’s house (close to workplace). She
conceived in 1995, but had a miscarriage, and she had two more
miscarriages after that in two consecutive years. I lost the joy of
being a FATHER and the doctors told specifically that all these
miscarriages happened due to her daily strenuous journey . In
between, I have decided to take up a job. And my wife finally
decided to leave her job, her father also agreed (after some drama
again) to the decision. And just after that she became the “proud
mother” of our only son. But she could never forgive me for that
decision, although she made her own decision always.

I started feeling humiliated for the indirect responsibility for the

cause of leaving her job. The misunderstanding began and it
increased day after day. I concentrated on my job, and obtained
recognition from my employer. I was earning enough to carry on
my responsibilities. I built up another floor in the house, since my
mother had a long desire for that. I performed my last pending duty
by getting my sister married in 2006. I started realising slowly, that
I am nothing but a moneymaking machine for my wife. Needless
to say, in between, the marriage lost all its charm in all way. My
wife became a “lady” by then and was reasonably satisfied with
her monetary status, and I became a late 30’s gentleman and kept
myself satisfied with my job with an understanding that for the
sake of my son, we should stay together.

But from 2007, she started taunting me even in front of my son. I

became mentally broke. My health was broken, started suffering
from IBS, BP etc. (diseases from tension and mental unrest) and
started thinking about separation and divorce. I had to take
sedative regularly. At the same time I was worried about my son’s
future. We were sleeping in different rooms from 2008. My wife
stopped using Sindoor from 2006. I really wanted to forget all her
past begaviours as bad dreams, but I couldn’t. I love my job; it has
given me my own identity and before the situation affects my job
performance, I wanted to end it. I was in a dilemma till April 2009
(on the death anniversary of my father); when she humiliated me
about my parents and myself with some nasty words (“you have
some problem in your blood, that’s why I am worried about my
son’s future staying with you”). I have finally decided for
DIVORCE. Previously, she said many times that she would also
prefer the mutual application for Divorce. But this time she
disagreed and after discussing with her father, they demanded huge
ransom money as “compensation”. She also told me that as divorce
is inevitable, one of us should leave the house. I wanted to provide
my son at least the same house after separation, which I felt
necessary for my son’s upbringing. I shifted to a rented apartment
near my place of work in July,2009. She was taking money
(whatever needed) from me as usual and delaying the filing
process for any separation, keeping the same humiliation process
on. I agreed (also paid till date) to pay all necessary expenses for
maintenance of my son and wife, including the maintenance for the
house where they are still staying with my mother. After all this in
25 years, her father again failed to rely on me. Earlier, I had no
money, so they hesitated to get myself married to her. But now,
they do not know how much money to claim from me, to spoil me
even after Divorce, and that is why they are hesitating to go for a
mutual divorce. So I had no other alternative to file the divorce
petition in September 2009. I know lots of odds will come from
my mother and relatives, as divorce is still considered as a social
taboo. Each marriage is between two individual – not between
“Ideal Wife” and “Ideal Husband” . I am responsible for my job
(doing it last 13 years) as well as my family. I belong to a social
class and agree to pay any reasonable maintenance (the only sub
clause was recommended as check measure for divorce for
Irretrievable Break Down) as decided by the Honourable Court.

Contest divorce itself is a very tough decision. Even in my

professional life, people are not taking it easily. Still I want to take
my own black spots, my failure in the marriage - to the public, at
least to the people who matters; cant play hide and seek game
anymore. I stopped myself several times; thinking about my son,
but he should also better see one parent than parents without love
or respect for each other. Perhaps by staying apart both of us can
maintain a healthy relation with him.

PRESENT

[ Lots of incidents happened in between: -

In October, I felt sad for my son (but nothing for my wife) and
came to my old address. But the “drama” continued. I got seriously
depressed after noticing my wife’s behavior. Actually she got
much more “CRUEL”, and silently (sometime with abusive
language in a very low voice) she started humiliating me. Finally,
I went to a psychiatrist. I was suffering from a tremendous
depression and trauma for my wife’s behavior. After being
checked up by 2 more doctors, I am taking anti-depressant drugs
since then. Recently (January, 2009) I got a “fit certificate” from
Doctor, but still having medicines. In between, she forced to bring
all household goods from my rented apartment and stopped to me
sell the same, although some items (like fridge) were duplicated. I
really got spellbound noticing her attitude. She forced me to shift
to 1st floor leaving my mother on ground floor. On 1st floor we
were sleeping in different rooms .Now I am again residing at my
rented apartment. ]
Now it’s already 5 months gone after my filing. The first date was
in Dec 2009. On that day I just got another date. And on the next
date also, I shall surely get just “another date.”

Is not this the right (if not delayed already) time to address the
problem associated with Indian Divorce Act itself? Please note,
I am not the 1st to say this, the law commissions already felt this in
1971 and 2009 (reports enclosed). Both “seriously” recommended
introducing THE IRRETRIEVABLE BREAK DOWN OF
MARRIAGE as another ground for divorce. We have now a “Fault
divorce” and mutual divorce. When my partner and me can’t agree
on a less affecting thing like “mutual divorce” (which means to
break the tie of marriage), how can we STAY TOGETHER in
marriage thereafter? All of us know that, staying together (in any
form) requires much more agreement between any two people than
to stay apart. That means I have to request (or beg or buy) my wife
to be free from marriage, just like a sentenced captive from the
Jail. Judiciary indirectly being used as a tool to bargain terms for
divorce, in cases like this. Yes, when there is legal battle between
couple, who are staying separate over a year, the only motto can be
to get a “good bargain” or to harass one spouse by mere non-
cooperation. My wife now more “ cruel” in behaviour. She is
fighting legally with me – that means she don’t have any
‘emotional” dependence on me. When we talk about our “old
tradition of marriage” we often forget that, no “traditional” wife
will come to court to keep or leave her marriage.

I would like to mention another thing. My petition primarily based

on “CRUELTY”, as the most suitable “available ground” for
divorce. But one has to understand that fairer sex normally don’t
act “cruel” by physical nature. Even in some cases “SILENCE” or
“ABSENCE OF CORDIAL NATURE” between husband and wife
can be cruelty of severe nature, which happened in my case. And
when a person like me, who act as a Manager in a reputed
company, files the divorce for wife’s cruelty, it can effect my
professional reputation to a great extent. Actually it’s very much
humiliating for me to file the petition and fight for that. It’s not
explainable to anyone, but one who is in similar condition, can
very well understand this. Broken marriage is not a crime and by
the recommended amendment, divorce law can address that break
with far less complexity. As we all know, nobody or nothing can
compel a couple or any two people to live together. Present
Divorce Law can delay (and make more bitter) the process of
divorce, but can’t really change the direction in this scenario.

Can the Judiciary ask me to point out very private part of my

life like marriage? Is not this hampering my basic fundamental
right as a citizen? When there is no such law for a “father &
son” or “mother & son” relation to be in that tie for ever
(although maintenance clause is there), why would be such
gross disparity in case of marriage? Are later the more
“NOBLE” or “MUST ON” relations than the earlier? Is
institution of marriage a serious “offense”, which if I have
done once, can’t be freed till my death? Is wedlock means
deadlock?

Now as an effect I have two options –

EITHER to stay in my marriage forgetting about my own

negative feelings compromising with my health and peace of
mind

OR

To badmouth my son’s mother in the court to prove her fault

to get rid of her.

In both cases either my wife or I would be sufferer, not the

Honurable Judiciary or the legislative body! Won’t the chances of
any healthy relation would decrease or diminish just because of
amount of tension created between us during the process, as more
dates means more blames or more defense (which is also a part of
attack mechanism)? Even the child would be indirectly sufferer for
the bitterness between the parents as helpless witness of the whole
event. Breaking up is a hard decision for anyone, but while doing,
why we (in the process itself for its duration & nature) need to be
nasty instead of peaceful? If a marriage can be done in a one-
month notice period, why the divorce would be delayed for
YEARS?

I am referring to some very pertinent cases where Honourable

Supreme Court of India understood the gravity of the
circumstances and granted the decree of divorce by dissolving the
marriage, sometimes even after the lower court’s verdict in an
opposite direction. In most of the cases, petition filed against
wife’s cruelty. Judiciary understood that delaying the process
would only increase bitterness between the couple. Whenever we
delay something, it affects. In this scenario its affecting
unfortunate people like me.
(1) Vineeta Saxena Vs Pankaj Pandit
CASE NO.: Appeal (civil) 1687 of 2006
DATE OF JUDGMENT: 21/03/2006
BENCH: Ruma Pal & Dr. AR. Lakshmanan

(2) Kajol Ghosh Vs Sanghamitra Ghosh

CASE NO.: Transfer Petition (civil) 228 of
2004
DATE OF JUDGMENT: 20/11/2006
BENCH: G.P. MATHUR & DALVEER BHANDARI

(3) Shobha Rani Vs Madhukar Reddi

DATE OF JUDGMENT12/11/1987
BENCH:SHETTY, K.J. (J), RAY, B.C. (J)
CITATION: 1988 AIR 121 1988 SCR (1)1010
1988 SCC (1) 105 JT 1987 (4) 433
1987 SCALE (2)1008

(4) Ashok Hurra Vs Rupa Bipin Zaveri- Dt

10/03097
CIVIL APPEAL NO 1835 OF 1997

(5) Suman Kapur Vs Sudhir Kapur – Dt -

07/11/2008
CIVIL APPEAL NO.6582 OF 2008

(6) V. Bhagat Vs D. Bhagat

DATE OF JUDGMENT19/11/1993
BENCH: JEEVAN REDDY, B.P. (J), KULDIP SINGH
(J)
CITATION: 1994 AIR 710, 1994 SCC (1) 337
JT 1993 (6) 428 1993 SCALE (4)488

(7) A. Jayachandra Vs Aneel Kaur

CASE NO.:Appeal (civil) 7763-7764 of 2004
DATE OF JUDGMENT: 02/12/2004
BENCH: RUMA PAL, ARIJIT PASAYAT & C.K.THAKKER

(8) Mayadevi Vs Jagdhish Prasad

CASE NO.:Appeal (civil) 877 of 2007
DATE OF JUDGMENT: 21/02/2007
BENCH: Dr. ARIJIT PASAYAT & DALVEER BHANDARI

(9) N. G . Dastane Vs S. N. Dastane - dt

19/03/1975
BENCH: CHANDRACHUD, Y.V. GOSWAMI, P.K.
UNTWALIA, N.L.
CITATION: 1975 AIR 1534 1975 SCR (3)
967, 1975 SCC (2) 326
CITATOR INFO : RF 1988 SC 121 (7,10)

(10) Romesh Chander Vs Savitri - Dt

13/01/1995
BENCH: SAHAI, R.M. (J), MAJMUDAR S.B. (J)
CITATION: 1995 AIR 851 1995 SCC (2) 7
JT 1995 (1) 362 1995 SCALE (1)177

(11) G.V.N. KAMESWAR RAO Vs G. JABILLI

CASE NO.:Appeal (civil) 140 of 2002
DATE OF JUDGMENT: 10/01/2002
BENCH: D.P. Mohapatra & K.G. Balakrishnan

(12) Samar Ghosh Vs Jaya Ghosh

CASE NO.: Appeal (civil) 151 of 2004
DATE OF JUDGMENT: 26/03/2007
BENCH: B.N. Agrawal, P.P. Naolekar & Dalveer
Bhandari
(13) Sujata Uday Patil Vs Uday Madhukar Patil
CASE NO.: Appeal (civil) 5779 of 2006
DATE OF JUDGMENT: 13/12/2006
BENCH: G.P. Mathur & A.K. Mathur

(14) Rishikesh Sharma Vs Saroj Sharma- Dt

21/11/2006
CASE NO.:Appeal (civil) 5129 of 2006

(15) Satish Sitole Vs Smt Ganga - Dt

10/07/2008
CIVIL APPEAL No. 7567 of 2004

(16) Praveen Mehta Vs Inderjit Mehta-

11/07/2002
CASE NO.: Appeal (civil) 3930 of 2002

(17) Durga Prasanna Tripathy Vs Arundhati

Tripathy – Dt 23/08/2005
CASE NO.: Appeal (civil) 5184 of 2005

(18 ) K R MAHESH Vs MANJULA

CASE NO.:Transfer Petition (civil) 947 of
2005
DATE OF JUDGMENT: 11/07/2006
BENCH:ARIJIT PASAYAT & S.H. KAPADIA
(19) Kanchan Vs Mittal

And Last but not the least, THE LANDMARK JUDGEMENT

(20) Naveen Kohli Vs Neelu Kohli – Dt

21/03/2006
CASE NO.:Appeal (civil) 812 of 2004
Some Newspaper articles about our present
Divorce Law : -
“Examining the irretrievable breakdown of marriage as a
ground for divorce
Ankit Kejriwal, Prayank Nayak
Irretrievable breakdown of marriage can be defined as such
failure in the matrimonial relationship or such circumstances
adverse to that relationship that no reasonable probability
remains of the spouses remaining together as husband and
wife for mutual comfort and support. It is the situation that
occurs in a marriage when one spouse refuses to live with
the other and will not work towards reconciliation. When
there is not an iota of hope that parties can be reconciled to
continue their matrimonial life, the marriage can be
considered as Irretrievable Breakdown of marriage.
 
This concept was first introduced in New Zealand. The
Divorce and Matrimonial Causes Amendment Act, 1920
included for the first time the provision for separation
agreement for three or more years was a ground for making
petition to the court for divorce and the court was discretion
whether to grant divorce or not. In England, the gate for this
theory was opened up in the case of Masarati v. Masarati,
where both the parties to the marriage had committed
adultery.  The court of appeal, on wife’s petition for divorce,
observed breakdown of marriage. The law commission of
England in its report said, The objectives of good divorce law
are two: one 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 the Law commission,
Irretrievable Breakdown of Marriage was made the sole
ground for divorce under section 1 of the Divorce Law
reforms Act, 1973. The Matrimonial Causes Act, 1959 of the
Commonwealth of Australia provided for divorce on the
grounds of breakdown of marriage. In India, breakdown of
marriage is still not ground divorce in spite of the
recommendation of the Law Commission and various
Supreme Court judgments to include breakdown of marriage
as a ground for divorce. This paper examines the need to
introduce irretrievable breakdown of marriage as a ground of
divorce.

Theories of divorce
 
The provisions relating to divorce are contained in Sec 13 of
Hindu Marriage Act, 1955. The Act recognizes two theories
of Divorce: the fault theory and divorce by mutual consent.
Under the fault theory, marriage can be dissolved only when
either party to the marriage had committed a matrimonial
offence. Under this theory it is necessary to have a guilty
and an innocent party and only innocent party can seek the
remedy of divorce. However the most striking feature and
drawback is that if both parties have been at fault, there is no
remedy available.

Another theory of divorce is that of mutual consent. The

underlying rationale is that since two persons can marry by
their free will, they should also be allowed to move out of
their relationship of their own free will. However critics of this
theory say that this approach will promote immorality as it
will lead to hasty divorces and parties would dissolve their
marriage even if there were slight incompatibility of
temperament. Some of the grounds available under Hindu
Marriage Act can be said to be under the theory of frustration
by reason of specified circumstances. These include civil
death, renouncement of the world etc. In this article we shall
see that how these theories, owing to change in social
circumstances and change in attitude towards the institution
of marriage had failed to provide full justice in matrimonial
cases.

Judicial opinions

 The Supreme Court has adopted a literal view and granted

divorce under irretrievable breakdown of marriage. In Ashok
Hurra v. Rupa Bipin Zaveri, the husband and wife filed a suit
for divorce by mutual consent. But, subsequently wife
withdrew her consent. So the petition was dismissed by trial
court. The Supreme Court held that We are of the view that
cumulative effect of various aspects involved in the case
indisputably point out that marriage is dead both emotionally
and practically, and there is no chance at all of the same
being revived and continuation of such relationship is only
for name-sake. The Honble Court used Article 142 and
granted divorce. The Delhi High Court in its full judge bench
decision in Ram Kali v. Gopal Das, took note of modern
trend not to insist on maintenance of an union which was
broken and said, ‘it would be practical and realist approach,
indeed it would be unreasonable and inhumane, to compel
the marriage to keep up the facade of marriage even though
the rift between them is complete and there are no prospects
of their living together as husband and wife’. In the case of
Savitri Pandey v. Prem Chandra Pandey, the Supreme Court
reiterated the need for the inclusion of irretrievable
breakdown of marriage as a ground for divorce. The
Supreme Court in Manjula v. K.R. Mahesh held, the
marriage has irretrievably broken down and there would be
no point in making an effort to bring about conciliation
between the parties. In Neetu Kohli v. Naveen Kohli,
husband alleged that the wife was quarrelsome and was
found in compromising situation with one Biswas Rout. The
wife counter alleged that husband had a concubine. This
established that the marriage had broken down irreparably
and hence granted divorce on grounds of an irretrievable
breakdown. It also observed that it was high time that this be
included as ground for divorce in the Hindu Marriage Act,
1955.

Seventy-first Law Commission Report

The 71st Law Commission of India submitted to the

Government on 7th April 1978 dealt with the concept of
irretrievable breakdown of marriage. This matter was taken
by the Law Commission as a result of the reference made by
the Government of India in the Ministry of Law, Justice and
Company affairs. The Report points out the fact that the fault
and the guilt theories of divorce are not sufficient and cause
injustice in those cases where the situation is such that
although none of the parties is at fault, or the fault is of such
a nature that the parties to the marriage do not want to
divulge it, yet there has arisen a situation in which the
marriage cannot be worked. The marriage has all the
outward manifestations of marriage but the real substance is
gone, it’s just like an empty shell. The Report unequivocally
asserts that in such circumstances it will be in the interest of
justice to dissolve the marriage. It is also mentioned in the
Report that in case the marriage has ceased to exist in
substance and in reality, there is no reason for denying
divorce; the parties alone can decide whether their mutual
relationship provides the fulfillment, which they seek. Divorce
should be seen as a solution and an escape route out of a
difficult situation. Such divorce is unconcerned with the
wrongs of the past, but is concerned with bringing the parties
and the children to terms with the new situation and
developments by working out the most satisfactory basis
upon which they may regulate their relationship in the
changed circumstances. The majority view, which is shared
by most jurists, according to the Law Commission Report, is
that human life has a short span and situations causing
misery cannot be allowed to continue indefinitely. A halt has
to be called at some stage. The law cannot turn a blind eye
to such situations, nor can it decline to give adequate
response to the necessities arising there from. By refusing to
sever that tie the law in such cases do not serve the sanctity
of marriage; on the contrary, it shows scant regard for the
feelings and emotions of the parties.

Other jurisdictions 

In most developed nations, the irretrievable breakdown of

marriage is recognised as a ground for divorce. New
Zealand was the first country to recognize it, through the
(New Zealand) Divorce and Matrimonial Causes Amendment
Act, 1920 where a separation agreement for three years is a
ground for making a divorce petition. In England, on the
recommendation of the Law Commission, it was made the
sole ground for divorce under section 1 of the Divorce Law
reforms Act, 1969. The Matrimonial Causes Act, 1959 of the
commonwealth of Australia provided for divorce on the
grounds of breakdown of marriage.  The Family Law Act
(Australia), 1975 considers irretrievable breakdown as sole
ground for divorce. USSR in the initial years was very liberal
in the granting of divorce. It was called post card divorce.
Family instability led to the tightening of the divorce
conditions lately. Under the (Canadian) Divorce Act, 1967-68
it is clearly recognised as a ground for divorce, apart from
the normal fault grounds.

Problems, suggestions
However the an attempt to introduce irretrievable breakdown
of marriage as a ground for divorce has met with resistance
by women organization on the grounds that husbands would
desert their wives and then ask for divorce under breakdown
of marriage. Also it has been stated by few that the concept
of irretrievable breakdown of marriage is somewhat vague.
In answer to first criticism it has to be stated in situation
where wife has been deserted it indicates that husband
wants to get rid of wife and any continuation of such
relationship would not make sense to both the parties to the
marriage. However a safety clause can be inserted which
would empower the court to refuse divorce if it adversely
affects the interests of the children. A provision for
maintenance for child and wife should be made. As far as
the second objection is concerned, it should be necessary
for grant of decree of divorce under this theory that parties
had lived separately for reasonably long time say for three
years. Living separately can be considered as objective
criteria for breakdown of marriage. 

The concept of marriage is moving from a sacrament to a

contract. The spouse should be granted a right to move out
of the wedlock if they cannot live together due to extreme
situations. Justice Krishna Iyer in the case of Aboobacker v.
Mam stated while the stream of life, lived in marital mutuality,
may wash away smaller pebbles, what is to happen if
intransigent incompatibility of minds break up the flow of
stream. Since the social conditions prevailing in the country
are peculiar, sufficient changes are needed to be made in
the law made so that law is able to ameliorate the conditions
of the people who, in absence of required law are craving for
relief and hence would be able to make process of
dissolution less excruciating. A question may be asked that
when irretrievable breakdown of marriage has been
recognized as a ground for divorce by judiciary why we need
an amendment in legislation. This is so because amendment
would lay down conditions and safe guards, which should be
taken into consideration before the grant of any decree. 
It is high time that the Government recognizes the need of
the time and save many couples from the disgrace and
humiliation by introducing the irretrievable breakdown of
marriage as ground for divorce under Section 13 of the
Hindu Marriage Act, 1955.
REFERENCES 
Mulla, Principles of Hindu Law, Vol II, 19th ed. (ed SA
DESAI), LexisNexis Butterworths, New Delhi.
Paras Diwan, Hindu Law, 2nd ed.2002, Orient Publishing
Company, New Delhi
Rangnath. Misra, (rev.),Mayne, Hindu law and Usage, 15th
ed.2003, Bharat Law House, New Delhi.
Agrawala, Raj Kumari (1972). Changing Basis of divorce and
the Hindu Law, Journal of Indian Law Institute, Vol.14, 1972,
New Delhi.
B.D. Agarwala (1997). Irretrievable Breakdown of Marriage''
as Ground of Divorce - Need for Inclusion, (1997) 8 SCC
(Jour) 11.
Kusum, Irretrievable Breakdown of Marriage: A ground for
divorce, Journal of Indian Law Institute, Vol.20, 1978, New
Delhi. 
(The authors are students of NALSAR University of Law,
Hyderabad.)”

“In AUSTRALIA

If a marriage breaks down, it can legally be ended by the

court granting a Divorce.There is only one ground for divorce
in Australia - the fact that the marriage has irretrievably
broken down. The legal test of irretrievable breakdown is
that you have lived apart for at least twelve months and
there is no prospect of reconciliation. As far as the court is
concerned, this is all you have to establish. The judge won't
be interested in who left whom, or whether one of you is
having an affair, or whose 'fault' it was that the relationship
broke down.”

“Divorce law in our country belongs to an era that has long

elapsed. But the laws have neither kept pace nor do they
take into account the altered socio-economic realities of
contemporary India. This is highlighted, once more, by the
recent controversy surrounding grounds for divorce following
Smriti Shinde's petition to the apex court urging it to consider
granting unilateral divorce when a marriage has irretrievably
broken down. The Supreme Court itself is ambivalent about
where it stands on the matter.
Under the Hindu Marriage Act or the Special Marriage Act,
there are no provisions that recognise "irretrievable
breakdown" or "irreconcilable differences" as grounds for
granting divorce when it is not a mutually consensual
decision. However, in 2006, the apex court granted divorce
in the Naveen Kohli vs Neelu Kohli case, precisely because
of irretrievable breakdown of marriage. But, early this year,
another SC bench refused to entertain this argument in the
Vishnu Dutt Sharma vs Manju Sharma case. It decided to
stick to the letter of the law.
This is as good a time as any for the laws governing divorce
to be updated. In doing so, the issue must not be looked at
through a moral prism alone. As Indians interface with the
world and are exposed to new ideas and opportunities, there
is bound to be a social churn, which impacts on personal
affairs like marriage and family relations. Add to this the fact
that more women today are economically more independent
and assertive of their rights and choices. Divorce must be
seen as a social reality, unfortunate though it might be, and
not as a social evil.
There are of course legitimate concerns that waiving the
mutual consent clause to grant divorce in cases of
irreparable marital breakdown would put women in a
vulnerable position. But that cannot be used as an excuse to
deny those who would genuinely benefit from easing the
process of obtaining a divorce. As things stand, one has to
go through a lengthy, convoluted and extremely stressful
procedure to get a divorce. It's time that changed.”

“Feelings of two human beings are involved in a couple’s

married life. This could not be patched up by enforcement of
law by courts. It is up to the individuals to mend themselves.
A horse can be taken to water but it is the horse that should
drink it. However, the law should not deny divorce if the
marriage has really broken down. By forcing unity with a
hammer in the hand, the law does not serve the sanctity
attached to the institution of marriage by religions. If the
relationship of husband and wife wrecks beyond repair, what
is wrong in recognizing that fact and allow them to live
separately. How can one compel a wife or a husband to
continue to live with spouse if they have fallen apart? If so
compelled they would have to lead miserable life.”

Forget everything else , just imagine a scenario in a bedroom of a

couple where a Judge is sitting and deciding about the “cruelty”
performed or not among the couple. It must be sounding ridiculous
and to avoid such embarrassment, Law Commission suggested the
amendment in the divorce law itself through recent Report (Report
no 217, November 2008): -

III.RECOMMENDATIO
N
3.1 It is, therefore, suggested that immediate

action be taken to introduce an

amendment in the Hindu Marriage Act,

1955 and the Special Marriage Act, 1954

for inclusion of ‘irretrievable breakdown of

marriage’ as another ground for grant of

divorce.

3.2 The amendment may also provide

thatthe court before granting a

decree for divorce on the ground that the

marriage has irretrievably broken down

should also examine whether adequate

financial arrangements have been made for

the parties and children

I like to highlight some facts in countries, where NO- FAULT
(effectively faster & peaceful) divorce exists: -

 A decline in the rates of domestic violence

(which is obviously of a very high concern in India)

 These laws empower a man or woman in an “abusive

marriage” and make it easier to leave and live separate

 Means less conflict during divorce, which means less

emotional harm to children whose parents, are
divorcing (very much valid in my case)

 Shortens the length of time it takes to obtain a

divorce, which, in turn, shortens the amount of time
spent in a stressful situation causing physical and
mental damage to involved party (as in my case, I am
having anti depression drugs as prescribed)

 Financial settlements are based on need, ability to pay

and contribution to the family finances, rather than on
fault ( I am ready to accept any reasonable amount
decided by judiciary)

 Helps reduce the heavy caseloads of family courts

(obviously valid for India)

Our legislation is hesitating to amend the law. Nobody wants to

disturb the “STATUS CO”. Its human nature to resist any kind of
change. A Surgery is done only when that is needed, to avoid some
greater pain or loss. If we remember, we in India had customs like
“SOTI DAHO PROTHA” (burning the widow with dead husband),
which now we can’t even imagine. As we are getting exposed to
the world, we have to ratinolise our thought process and laws, by
improvising any outdated system or rule. Staying apart for a
considerable period itself points towards the death of the marriage,
“Divorce” is just the legal nomenclature of that unfortunate
incident. No divorce or even cause of any divorce will initiate
because of the said amendment, but surely it will decrease the
suffering of couple whose divorce already initiated. This
amendment is only an addition to the grounds of divorce; no way it
can hamper the relationship between a married couple.

At the end we all must remember-

LAW IS MADE BY THE PEOPLE
LAW IS MADE FOR THE PEOPLE.