Upgrad LLM

irretrievable breakdown of marriage-new ground for divorce u

Adv P & H High Court Chandigarh

The Law Commission of India in its 71st Report title "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. The Commission examined the extant legislations as well as a number of judgments of the Supreme Court and High Courts on the subject and has expressed 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. This had been previously held in the case of Naveen Kohli v. Neelu Kohli in 2006.

 
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Irretrievable Breakdown of marriage Meaning;

The situation that exists when either or both spouses no longer are able or willing to live with each other, thereby destroying their Husband and Wife relationship with no hope of resumption of spousal duties.

The irretrievable breakdown of a marriage provides the ground for a no-fault divorce in many jurisdictions.

 

History

The concept of Irretrievable Breakdown of marriage was first introduced in New Zealand. In England, the law commission of England in its report had 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."

 

Current situation;

And now The Law Commission of India in its 71st Report title "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.

 

Breakdown of Marriage was made the sole ground for divorce under section 1 of the Divorce Law reforms Act, 1973 in England.

 

In the case of Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591, 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 JT 2006 (7) SC 220, 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 2003, the Supreme Court in Naveen Kohli v. Neelu Kohil, 2006(3) SCALE 252, recommended an amendment to the Hindu Marriage Act, whereby either spouse can cite Irretrievable breakdown of marriage as a reason to seek divorce. Expressing the concern that divorce could not be granted in number of cases where marriage were virtually dead due to the absence of the provision of irretrievable breakdown, the court strongly advocated incorporating this concept in the law in view of the change of circumstances.

 

Now here latest scenario;

Irretrievable breakdown is no ground for divorce: HC

Link

http://timesofindia.indiatimes.com/city/delhi/Irretrievable-breakdown-is-no-ground-for-divorce-HC/articleshow/6284274.cms

NEW DELHI: Pointing out that "irretrievable breakdown of marriage'' is not yet a ground for divorce, the Delhi high court on Monday warned that whenever it is included as a ground, it ought to have adequate safegurads so as to "not send a message that divorce has now become a cakewalk''.

Justice Kailash Gambhir turned down the plea of a husband seeking seperation and suggested a few points to be kept in mind while incorporating this specific ground as a reason for divorce in the Hindu Marriage Act.

"It will be important to bring forth that HC in the exercise of its powers can't grant divorce on the ground of irretrievable breakdown of marriage as it is not yet a ground in Hindu Marriage Act,'' HC noted while dealing with a suit seeking to challenge refusal to grant divorce to a husband by a lower court. In his plea the husband claimed that his wife and his mother-in-law caused great mental agony to him as both cooked their own food when his mother-in-law visited them. He said the mother-in-law also "created scenes'' that made him feel depressed and neglected.

Listing the points HC said firstly, there should be a minimum period before which such a ground can be invoked and when it does, grant of divorce should be subject to the wife getting adequate money. Moreover, HC said, in case a fueding couple has children, their maintenance, education and upbringing, visitation rights ought to be decided during the divorce hearing itself.

Dealing with the case at hand, HC noted that the allegations of cruelty levelled by the husband against her wife and in-laws "are vague, indefinite, unspecific and uncertain''. It added that without spelling any specific acts of cruelty either on the part of the wife or her mother it would be difficult "to prove mental cruelty''.

"The relationship between husband and wife is one of the most delicate emotional bonds and needs constant nurturing, tolerance and understanding,'' HC noted saying even though "divorce on the ground of irretrievable breakdown of marriage might be contrary to common peception and the idea of marriage being a holy union of seven births. But in the bid to preserve the unworkable marriage which has long ceased to be alive is bound to be a source of greater misery for the parties than divorce itself.''

 

Now lets see what happend next.

 

 


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Nahin Bataoonga

Marriages never break up. The society as a whole uses terms like these to further their ends. Think and ponder about it and take some highly impartial advice which doesn't stand to gain in terms of vendetaa, money etc.

 
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For justice and dignity

lets take a hypothetical situation...

 

suppose an NRI man who sends his wife to india for a small vacation changes his addresses,tel. nos.,job and even city and thus deserts her.she;s unable to locate him for atleast 1 year and never hears from him again since he never responds to her e-mails(this is the only way left to message him)

in between her inlaws also fully support their son and abuse her a lot.still she doesnt take  legal action against them as she wants to save marriage.this happens for 2 years.finally she takes legal action so that she can get her conjugal rights back...

 

now this husband who's already faulty can get a divorce becoz is marriage has broken irrevertibly since:

  • he's living separately for 2 yrs.
  • she filed cases, and therefore insulting them

 

there can be many more cases where the wife/husband illtreat their spouse and then blackmail him emotionally by taking the support of this law if their spouse protests.

have the people who are involved in making of this law given a thought regarding wot will happen to indian marriages if this law is passed?or are they blind?

 
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For justice and dignity

will this law not give a licence to faulty spouses to treat marriage as some game,which they can end whenever they want?

 
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Dear Roshni B,

With the amendment in 71st Report ,there may be oppositions by traditionalists as the ground does not fall in line with Hindu tradition, which regards marriage as a bond for life. Recommended amendments Irretrievable Breakdown of marriage as ground for divorce  under section 13. of hindu marriage act,1955

 

Marriage is too complex to allow for an easy way out.

 

While peoplr seek easier option in life..marriage requires effort from both parties., and this wears people  out.

 

So this new ground for divorce may let people take the easy route.

 

This thing is not good for psycho-social structure in India.

 

It offer umpteen possibilities for misuse, especially by the younger generation. As they are believed to take impulsive decision and knowing them a misunderstanding between the two could grant them a divorce might result in disturbing situation.

 

 

The other reason is that on such a ground husband could desert their wife and then ask for divorce for under breakdown of marriage and suppose if he lied or have a relationship with other women he use this tactics.

 

However a safety clause can be inserted which would empowered the   court  to refuse the divorce but again that depend upon the judge ,fact,situation, evidences, timing tactics etc.

 

But here a provision for maintenance for child and wife should be made.

 

 

 
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For justice and dignity

rather changes be made in MCD divorce that once 1st motion is filed,no spouse can back out...1st motion shud mean that divorce is inevitable,unless both want to bak out and reconcile.so only serious people will file this petition..

similarly divorce on fault grounds like adultery,desertion etc can continue.

so why introduce such a law which will only lower status of women further?

inlaws will abuse them more for dowry,husbands will engage more in adultery,wives also will blackmail hubbies if they dont earn enuf and so on while the sufferer will not be able to protest thinking his marriage will break as soon as he does...

this law will only serve spoiled,greedy,selfish spouses and their parents...does the govt. want to serve such people??.

we indians say we have v.strong roots..but i am sorry to say we are the most "rootless' people......we just copy foreign ideas & laws without understanding that their culture is very different and their legal systems are also more efficient.

in india getting justice is such a tedious and expensive thing,esp for mid. class people..there are so many loopholes in law that innocent people suffer even more at the hands of courts,their own lawyers,etc.dats why some people avoid litigation even if they are suffering and in dire need of legal help...

on top of that u introduce such laws and ruin lives of people further.

so even if a maintenance clause is introduced in IRBM,it wont serve any purpose becoz of above deficiencies in legal system

rather the govt shud introduce such services and social organisations that help to save marriages...by employing marriage counsellors,psychologists,etc.but govt finding ways to break marriages!

what a sick society we have become!

is this the same india that boasts of its great culture and family traditions everywhere in the world?

 
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PM

Marraige is a contract - it can not be effectively executed without both party consenting.

 

Mairraige which stops functioning , irrespective of its history, -- becomes like a dead body or carcass. The society has either two ways to handle this carcass

 

1.  Keep carring the dead body.. that is carcass. As it happens with carcass... with time  it starts decomposing, generating foul smell,  spread disease.. the dead marraige will start genrating acrimony, bitterness, legal fights, physical fights, abducation, killings, spoiled life.

 

2. Peacefully seperate and do start something potentially positive.

 

Our society is sum total of its individuals. If individuals are unhappy, destructuve, acrimonious so will be our society.  Have you every experienced  sadness within you after meeting a person who has denounced the world vis a vis joy after meeting a person who is hapyy and cheerful?

 
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PM

Kushan,

 Let me give me my thoughts  on  some of the points you have raised ---

 

1.  Marriage is too complex to allow for an easy way out. 

Why you think marriage are two complex? Many times this arugument is raised by the people who wind to hide behind the curtains of complexity. Human mind are two broad to think through nuances, twist and turns. If you can bring the issues involved to the table, we can discuss and think through.

Besides, marraige is a worldwide phenomenon, not merely and Indian. Majority of world human population has found out a way to deal with dead marraiges-- the question is whether, we as Indian Hindu,  will find a solution or not.

 

2. So this new ground for divorce may let people take the easy route. This thing is not good for psycho-social structure in India.

What is the basis on which you fear that people will take easy way out. Any scientific study? In order to understand that how mucuch this statement is wrong – you need to look into lives of many estranged and warring couple in our society – they have left their jobs, their family life is ruined and the only thing they are doin is filling the pocket of lawyers. Nobody enteres marraige only to come out. Only when the parties realises that it is not working they wish to come out and there is nothing wrong is wishing to come out.

 

3. This is not good for physo structure in India' ---

 

 

You are using some bofg words here :).  On what basis you are saying that is not good for India? Any research or it is just mere gut feeling? 

If  you are saying this based on our tradition - we have changed alot -- not long back we used to live in ia big joint family. Where are they now? -- No, WE HAVE CHANGED. Wife and Husband used to meet only at night. Do we still do that now? -- No, WE HAVE CHANGED. We used to be agragarian society. Are we still? - WE HAVE CHAN.GED. Likewise the concept  and expectation  out of  marraiges has changed with time. 

 

Yous  one of the last sentence –

 

4.  'The other reason is that on such a ground husband could desert their wife and then ask ' ---

:)   I could not stop smiling on this point. This statememnt , besides being  gender biased, is made on what basis? Why you think men will do this and not women?   

 
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Nationalist

If the divorce granted on this ground with a pre-condition that no one will marry again in the remaining life period. Then how many will agree for divorce.


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