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«Irretrievable Breakdown of Marriage – Another Ground for Divorce Report No. 217 March 2009 LAW COMMISSION OF INDIA (REPORT NO. 217) Irretrievable ...»

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GOVERNMENT OF INDIA

LAW COMMISSION OF INDIA

Irretrievable Breakdown of Marriage –

Another Ground for Divorce

Report No. 217

March 2009

LAW COMMISSION OF INDIA

(REPORT NO. 217)

Irretrievable Breakdown of Marriage –

Another Ground for Divorce

Forwarded to the Union Minister for Law and

Justice, Ministry of Law and Justice, Government of

India by Dr. Justice AR. Lakshmanan, Chairman, Law Commission of India, on the 30th day of March, 2009.

The 18th Law Commission was constituted for a period of three years from 1st September, 2006 by Order No. A.45012/1/2006-Admn.III (LA) dated the 16th October, 2006, issued by the Government of India, Ministry of Law and Justice, Department of Legal Affairs, New Delhi.

The Law Commission consists of the Chairman, the Member-Secretary, one full-time Member and seven part-time Members.

Chairman Hon’ble Dr. Justice AR. Lakshmanan Member-Secretary Dr. Brahm A. Agrawal Full-time Member Prof. Dr. Tahir Mahmood Part-time Members Dr. (Mrs.) Devinder Kumari Raheja Dr. K. N. Chandrasekharan Pillai Prof. (Mrs.) Lakshmi Jambholkar Smt. Kirti Singh Shri Justice I. Venkatanarayana Shri O.P. Sharma Dr. (Mrs.) Shyamlha Pappu The Law Commission is located in ILI Building, 2nd Floor, Bhagwan Das Road, New Delhi-110 001 Law Commission Staff Member-Secretary Dr. Brahm A. Agrawal Research Staff Shri Sushil Kumar : Joint Secretary& Law Officer Ms. Pawan Sharma : Additional Law Officer Shri J. T. Sulaxan Rao : Additional Law Officer Shri A. K. Upadhyay : Deputy Law Officer Dr. V. K. Singh :Assistant Legal Adviser Dr. R. S. Shrinet : Superintendent (Legal) Administrative Staff Shri Sushil Kumar : Joint Secretary& Law Officer Shri D. Choudhury : Under Secretary Shri S. K. Basu : Section Officer Smt. Rajni Sharma : Assistant Library & Information Officer The text of this Report is available on the Internet

at:

http://www.lawcommissionofindia.nic.in © Government of India Law Commission of India The text in this document (excluding the Government Logo) may be reproduced free of charge in any format or medium provided that it is reproduced accurately and not used in a misleading context. The material must be acknowledged as Government copyright and the title of the document specified.

Any enquiries relating to this Report should be addressed to the Member-Secretary and sent either by post to the Law Commission of India, 2nd Floor, ILI Building, Bhagwan Das Road, New Delhi-110001, India or by email to lci-dla@nic.in D.O. No. 6(3)/155/2009-LC (LS) 30th March, 2009 Dear Dr. Bhardwaj Ji,

–  –  –

I am forwarding herewith the 217th Report of the Law Commission of India on the above subject.

Section 13 of the Hindu Marriage Act, 1955 provides grounds for presentation of a petition for divorce. Section 27 of the Special Marriage Act, 1954 similarly provides grounds for grant of divorce in the case of a marriage solemnized under the Act. However, the said Acts do not provide “irretrievable breakdown of marriage” as a ground for divorce. The Law Commission of India in its 71st Report titled “The Hindu Marriage Act, 1955 - Irretrievable Breakdown of Marriage as a Ground of Divorce” recommended amendments in the Hindu Marriage Act to make irretrievable breakdown of marriage as a new ground for granting divorce among the Hindus. Recently, the Supreme Court also in Naveen Kohli v. Neelu Kohli (AIR 2006 SC

1675) recommended to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce.

In view of the above, the Law Commission of India suo motu took up the study of the subject. The Commission examined the extant legislations as well as a number of judgments of the Supreme Court and High Courts on the subject and is of the view that “irretrievable breakdown of marriage” should be incorporated as another ground for granting divorce under the provisions of the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. The 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.

The Commission has accordingly made its recommendations in this Report.

–  –  –

Dr. H. R. Bhardwaj, Union Minister for Law and Justice, Government of India Shastri Bhawan, New Delhi-110 001.

Irretrievable Breakdown of Marriage – Another Ground for Divorce

–  –  –

I. INTRODUCTION

1.1 Whenever the question of inclusion of irretrievable breakdown of marriage as a ground for divorce is mooted, the opponents argue that “divorce by mutual consent” introduced in the Hindu Marriage Act in 1976 more than covers the situation. It is important to note that “mutual consent” requires the consent of both the parties and if one or the other does not cooperate, the said ground is not available.

‘Irretrievable breakdown of marriage’, on the other hand, is a ground which the Court can examine and if the Court, on the facts of the case, comes to the conclusion that the marriage cannot be repaired/saved, divorce can be granted. The grant of divorce is not dependent on the volition of the parties but on the Court coming to the conclusion, on the facts pleaded, that the marriage has irretrievably broken down.





Irretrievable breakdown of marriage- The foundation of a 1.2 sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it.1

1.3 In Naveen Kohli v. Neelu Kohli2 the Supreme Court recommended to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for divorce in the

following words:

“Before we part with this case, on the consideration of the totality of facts, this Court would like to recommend the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the 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”3

1.4 Earlier, in Ms. Jorden Diengdeh v. S. S. Chopra4 the Supreme

Court observed:

Mayne’s Treatise on Hindu Law & Usage (16th Ed.) Revised by Justice Ranganath Misra (New Delhi:

Bharat Law House, 2008), page 292.

AIR 2006 SC 1675.

Ibid., para 96.

AIR 1985 SC 935.

–  –  –

1.5 It is pertinent to notice that the Law Commission of India has already submitted a very comprehensive 71st Report on irretrievable breakdown of marriage as a ground of divorce. The matter had been taken up by the Commission as a result of a reference made by the Government of India. The Law Commission under the Chairmanship of Shri Justice H. R. Khanna presented its Report on April 7, 1978.

The Report considered the suggestion and analyzed the same in extenso. Before embarking upon further action on the suggestion that irretrievable breakdown of marriage should be made as a ground for divorce, the Law Commission considered it appropriate to invite views on the matter by issuing a brief questionnaire. The Commission in its 71st Report have accepted in principle irretrievable breakdown of marriage as a ground of divorce and also examined the question as to how exactly to incorporate it into the Act and also further examined the question whether the introduction of such a ground should be coupled with any safeguards. The Commission also in Chapter II of the said Report considered present law under the Hindu Marriage Act, merits and demerits of the theory of irretrievable breakdown of marriage in Chapter IV and retention of Ibid., para 7.

other grounds of divorce in Chapter V. In Chapter VI the Commission also considered the requirement of living apart and also suggested many safeguards like welfare of children, hardship and recommended amendments to Sections 21A, 23(1)(a) and also recommended insertion of new sections 13C, 13D and 13E.

1.6 In the light of the above, the Law Commission suo motu took up the study on the subject.

II. JUDICIAL VIEW/SUGGESTIONS

2.1 A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce Courts are presented with concrete instances of human behaviour as bring the institution of marriage into disrepute.6 Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interest of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie, by refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. Public interest demands not only that the married status should, as long as possible, and whenever possible, be maintained, but where a marriage has been 71st Report of the Law Commission of India.

wrecked beyond the hope of salvage, public interest lies in the recognition of that fact. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist. 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. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom.7 The Supreme Court in Naveen Kohli vs. Neelu Kohli8 recommended to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for divorce.

2.2 The irretrievable breakdown of marriage is not a ground for divorce by itself. But while scrutinizing the evidence on record to determine whether the grounds on which divorce is sought are made out, the circumstances can be taken into consideration. No divorce can be granted on the ground of irretrievable breakdown of marriage if the party seeking divorce on this ground is himself or herself at fault. The decree of divorce on the ground that the marriage has irretrievably broken down can be granted in those cases where both the parties have levelled such allegations against each other that the marriage appears to be practically dead and the parties cannot live together. The power of the Court to grant divorce on the ground of irretrievable breakdown of marriage should be exercised with Supra note 1, pages 292 – 293.

Supra note 2.

much care and caution in exceptional circumstances only in the interest of both the parties.9

2.3 In Geeta Mullick v. Brojo Gopal Mullick10 the Calcutta High

Court held:

“In our considered opinion, the marriage between the parties can not be dissolved by the trial Court or even by the High Court only on the ground of marriage having been irretrievably broken down, in the absence of one or more grounds as contemplated under section 13(1) of the Hindu Marriage Act, 1955.”11

2.4 The concept of irretrievable breakdown of marriage cannot be used as magic formula to obtain a decree for divorce where grounds for divorce are not proved.

–  –  –

Supra note 1, page 293.

AIR 2003 Cal. 321.

Ibid., para 7.

AIR 1994 SC 710.

Ibid., para 23.

The Calcutta High Court in Tapan Kumar Chakraborty v.

2.6 Jyotsna Chakraborty14 held that in a petition for divorce on a ground as mentioned in the Hindu Marriage Act or the Special Marriage Act, court cannot grant divorce on the mere ground of irretrievable breakdown of marriage.

2.7 In Kanchan Devi v. Pramod Kumar Mittal15, however, the

Supreme Court held:

“…the marriage between the appellant and the respondent has irretrievably broken down and that there was no possibility of reconciliation, we in exercise of our powers under Art. 142 of the Constitution of India hereby direct that the marriage between the appellant and the respondent shall stand dissolved by a decree of divorce.”16

2.8 There is no use of keeping two persons tied by the matrimonial relationship when they cannot live peacefully. Where wedlock has become a deadlock, since parties are living separately, and after marriage the wife has lived only for a few months in the matrimonial home, wife having made allegations of cruelty and desertion against the husband and husband having made counter-allegations against her, the court in Krishna vs. Som Nath17 held that marriage is irretrievably broken and it is in the interest of justice that decree of divorce be granted so that both the parties can live in peace.

When the court finds in facts as well as from talks of resettlement or reconciliation between parties that there was no possibility of reunion AIR 1997 Cal. 134.

AIR 1996 SC 3192.

Ibid., para 6.

(1996) DMC 667 (P&H).



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