RECONSIDERING DIVORCE LAWS IN THE LIGHT OF NEW SOCIAL DEVELOPMENTS Smitha P1
Family is a vital institution which determines the stability of the society and socialization of future citizens and serves important religious, educational, medical, and social welfare functions. One of the ways in which the family is formed is by way of marriage. In marriage husband and the wife jointly establishes family with division of responsibilities. Traditional view is that woman is not fit to earn livelihood and man is not fit to manage domestic affairs. Marriage binds them to make up each other's deficiencies.
After marriage the individual becomes part of the family, a portion which contributes towards the structure of family. Individual’s rights, to an extent, will be substituted by individual’s obligations. These obligations are intended to maintain the structure of family intact. One’s interests and rights take back stand when it comes in conflict with the interest of the family as a whole.
THE CONCEPT OF ORIGIN OF DIVORCE However, today the institution of marriage suffers a setback with the changes in the society. The increased rate of divorce is one of the factors affecting marriage and in turn the family. To understand the present scenario and the reasons behind it, we shall analyze concept of marriage and origin of divorce in India.
In ancient India marriage has been considered as an indissoluble union between a man and women not only during this life but also for all lives to come2. Two souls come together and marry because their karmas are intertwined and they have to resolve many things together upon earth in order to ensure their mutual salvation. Marriage has been placed one of the sixteen samskara of a Hindu. Samskara is a socio religious rites by performance of which life of present Hindu is sanctified3. According to Grihya Sutra, there were eight kinds of Marriages in which the
1 Guest Faculty, Govt.Law College, Thrissur, Kerala 2 Basant kumar singh, “The changing face of Hindu marriage”, available at www.hinduwebsite.com (Last visited on 26/04/2016) 3 “Marriage in Hinduism”, available at www.sociologyguide.com 1 | Page Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 3
Swayamvara system of marriage was very common. It is the system of free choice of a husband by the maiden. According to Hindu traditions if a girl was not married by puberty, she would soon find a lover, no matter how closely her parents protected her4. In Rig Vedic period the marriage was monogamous. Child marriage was unknown and there were unmarried girls like Ghosha who lived all her life with her parents5. There were no marriage restrictions. There was complete freedom both to the boy and the girl in the selection of their partner. Hindu scriptures do not recognize a woman's right to leave her husband under any circumstances. A married man can leave his wife or marry another on the grounds of infidelity, childlessness, an incurable disease such as leprosy or insanity, or ever mere suspicion of adultery or infidelity6.
Later Manu and others attacked the Gandharva and other similar systems. Under the new system women were stripped of their traditional independence and placed permanently in male custodianship: first of their fathers in childhood, then of their husbands through married life, and finally of their sons in old age7. Parental control of marriage might have emerged during this period as a mechanism to prevent the intermixing of ethnic groups and castes. Vedic text as well as Smrities contains no advertence at all to divorce. Manu declares "Let mutual fidelity between husband and wife continue till death. Husband can remarry when there is barrenness, misconduct, sickness, or incompatibility in wife. The wife could abandon a husband who was cruel, vicious, or impotent. Narda and Parasara says that a woman could obtain another husband if her first husband is missing, dead, a religious recluse, impotent or outcaste. Divorce seems to make its appearance during the Mauryan period. Under Kautilya's Arthasastra marriage might be dissolved by mutual consent in case of the unapproved form of marriage8. Kautilya expressed the view that if there is mutual aversion then a release is possible. Women had right to take a second husband when the husband is lost or unheard of, when he is dead or has renounced the world and become a sanyasi or when the husband is impotent or patita (debase).
Later when the British came it had tremendous impact on the legal system in India. In many respects, English law in letter and spirit came to be applied in India. Indian Divorce Act 1869 was enacted adapting the principles of Matrimonial causes Act 1857 of England. Matrimonial
4 George Monger, “Marriage customs of the world: from henna to honeymoons”, available at www.hinduweb.com 5 Supra. 6 Supra. 7 Anjani Kant, Women and the law, APH Publishing, Allahabad, (1st edn.-2003) p.162 8 Supra. 2 | Page Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 3
Causes Act of 1857 reflected the social changes that took place in England. This Act brought about a major change in the British society. The power and authority of the Church over matrimonial matters was divested in civil courts. As the concept of divorce was very new and was considered revolutionary the grounds for obtaining divorce were very stringent. Hence the ground for divorce in the Divorce Act had also become rigid as it was structured in the same format as that of English Act. It reflected the Victorian ideas and sense of morality. Now, therefore, it emerges that the courts in India were to grant relief based on the principles and rules of the Court for Divorce and Matrimonial Causes in England; and the English Courts, in turn, were to follow the principles and practice of the old Ecclesiastical Courts. In other words, the Courts in India granted relief in matrimonial causes (under the Indian Divorce Act, 1869) on the basis of the principles evolved by the old Ecclesiastical Courts in England.
During British period India experienced various social reform movements as a result of which new legislations were enacted. Special Marriage Act was passed in 1872 with a view to legalize inter caste and inter religious marriages. It also allowed the parties to dissolve the marriage on certain grounds and by mutual consent and in 1954 eight guilt grounds were added. Local Acts like Hindu Nibandha of 1937, Bombay Hindu Divorce Act 1947 incorporated judicial divorce on many grounds in par with Indian divorce Act. Under these Acts customary divorce was still valid.9 Before Hindu Marriage Act 1955, Hindus could obtain divorce only if a custom governing them allowed it. Among the low caste Hindus divorce has always been available under custom on the grounds of renunciation, abandonment or repudiation, Immorality, unchastity, adultery or conversion, divorce by mutual consent and divorce under special enactments; In south India, particularly in the erstwhile state of Travancore and Cochin divorce among different castes and groups were recognized and regulated under certain statutes.10 Among the matrilineal communities, such as marumakkathayam and aliyasantana marriage has always been considered a consensual union and dissoluble by mutual consent. There was concept like ‘sambandham’ which even though a valid union, lacks the traits of present day marriage.
9 Basand kumar Singh, “The changing face of Hindu marriage”, available at www.hinduwebsite.com 10 Paras Diwan, Family law Hindus, Muslims, Parsis and Jews, Allahabad Law Agency, Allahabad (5th edn.-2008) p.211 3 | Page Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 3
When the woman no more wants the man she can just get him out of the house. Therefore divorce was not a new thing in Indian society as it was available under the customary law11.
The Hindu marriage Act was passed on the basis of guilt theory. The guilt theory requires the opposite party to be innocent; otherwise relief will not be granted. Adultery, desertion and cruelty were grounds of judicial separation and not of divorce. Living in adultery was ground for divorce. Apart from this conversion to non-Hindu religion, insanity continuously for three years, virulent and incurable leprosy of three years duration, venereal disease in a communicable form, renunciation of the world by entering into a holy order, or not being heard of alive for a period of seven years are the other grounds of divorce. A wife can file petition for divorce on the ground that since the solemnization of marriage her husband has been guilty of rape, sodomy, bestiality or if he undergoes a second marriage before 1955. In 1964, the Act was amended to include the provision that, either party to a decree of judicial separation or restitution of conjugal rights could sue for divorce if they had not resumed cohabitation for two years. The assumption underlying this reform is that if parties are living separate for two or more years, then it is a sufficient evidence of breakdown of marriage. The marriage should be dissolved without bothering the guilt or innocence of the parties. The Marriage laws (Amendment) Act, 1976 made the traditional guilt grounds like cruelty, desertion or adultery grounds of divorce. The period of two years in the case of insanity, three years in the case of virulent and incurable deceases and venereal deceases were dropped. In such cases other party can immediately sue for divorce. The period is reduced from two to one year in the case of divorce on the ground of breakdown of marriage. If wife has obtained a maintenance order she can apply for divorce on the ground since the order cohabitation is not resumed for one year or more; and if the marriage is solemnized before 15 years of age, and after attaining 15 years but before completing 18 years she had repudiated the marriage, she can sue for divorce. Provision for divorce by mutual consent was also introduced. The period for moving petition for divorce since the solemnization of marriage was reduced to one year. Now the grounds for securing divorce in HMA 1955 are adultery, cruelty, desertion for a period of two years, insanity, renouncement of the world, conversion in the religious faith, has not been heard as alive for a period of seven years, suffering from virulent or incurable form of leprosy, or venereal decease of communicable form, no resumption of
11 Paras Diwan, Family law Hindus, Muslims, Parsis and Jews, Allahabad Law Agency, Allahabad (5th edn.-2008) p.209 4 | Page Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 3
cohabitation or restitution of conjugal rights after a decree for the same for one year, and divorce by mutual consent. Wife has got some special grounds like if she got married before fifteen years and after attaining fifteen she repudiates, or husband has been guilty of rape, sodomy or bestiality, or cohabitation has not been resumed for one year after a decree for maintenance.
Muslim personal law did not undergo much change. Still, by virtue of the Muslim personal law (shariat) application Act 1937, Shariat law is applied. There are two categories of divorce under the Muslim law12; Extra judicial and judicial divorce. When marriage is broken down irreversibly, Islam recommends for an extra judicial divorce. Extra judicial divorce is recognized under Shariat Act of 1937.The category of extra judicial divorce can be further subdivided into three types,
• By husband- talaaq, ila, and zihar. • By wife- talaaq-i-tafweez, lian. • By mutual agreement- khula and mubarat.
When the husband exercises his right to pronounce divorce, technically this is known as Talaaq. The absolute power of a Muslim husband of divorcing his wife unilaterally, without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and without recourse to the court, and even in the absence of the wife, is recognized in modern India. The divorce by wife can be categorized under three categories: Talaaq-i-tafweez, Lian, and by Dissolution of Muslim Marriages Act 1939. Under the 1939 Act a wife can seek divorce when the whereabouts of the husband have not been known for a period of four years, the husband has neglected or has failed to provide for her maintenance for a period of two years, That the husband has been sentenced to imprisonment for a period of seven years or upwards, That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years, That the husband was impotent at the time of the marriage and continues to be so, If the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease, That she, having been given in marriage by her father or other guardian before she attained the age of
12 “Islamic law regarding Divorce”, available at www.witness-pioneer.org 5 | Page Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 3
fifteen years, repudiated the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated or husband treats her with cruelty:
(a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill treatment, or (b) Associates with women of ill-repute or leads an infamous life, or (c) Attempts to force her to lead an immoral life, or (d) Disposes of her property or prevents her exercising her legal rights over it, or (e) Obstructs her in the observance of her religious profession or practice, or (f) If he has more than one wives, does not treat her equitably in accordance with the injunctions of the Holy Quran.
Khula and Mubarat are two forms of divorce by mutual consent. It signifies an agreement between the spouses for dissolving a marital union in lieu of compensation paid by the wife to her husband out of her property.
The true nature of Islamic law of divorce is neither the husband nor the wife has an unbridled right to do away with an existing marriage unilaterally and arbitrarily. But if either has a reasonably tenable ground to seek separation there is no compulsion to remain united and the alliance can be dissolved in such case. In Muslim law happiness of the people is given utmost importance. Hence whatever curtails the happiness of man or woman should be got rid of as far as possible.
Since 1869, the Indian Divorce Act did not undergo any major change and thus Christian law on divorce in India remained embedded on the principles of Victorian vintage for more than a century and a quarter even though there were pressing demands to update the law. After the Indian Divorce (Amendment) Act, 2001 both husband and wife can seek a divorce on the grounds of, adultery, cruelty, desertion for more than seven years, insanity for more than two years, incurable leprosy for more than two years, conversion to another religion, willful refusal to consummate the marriage, not being heard of for 7 years, venereal disease in communicable form for two years, failure to obey the order for restitution of conjugal rights. However, the wife has been permitted to sue for divorce on additional grounds if the husband is guilty of, rape,
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sodomy, bestiality. Divorce by mutual consent was incorporated in it although the time period for separate living before filing a petition for divorce was made two years while in the other marriage laws it is only one year. It was due to the stringent view of Christianity regarding divorce that the law did not undergo much change as the Church still influence in the matters of marriage and divorce of Christians.
THE REASONING BEHIND THE LIMITED DIVORCE GROUNDS
These laws were enacted at a time when many social evils like polygamy and child marriage existed, hence they aimed to prohibit such evils. Now we can see laws only permit monogamy and consider marriage as a sacrament and divine. Hence the reason for including adultery as a ground is clear. When a spouse goes for a physical relationship with someone other than the spouse the very purpose of concept of sacrament and monogamy is lost. Grounds like insanity or venereal deceases or willful refusal to consummate marriage, the reason for including them is, at the time when these laws were enacted purpose of marriage was legalization of sexual relation between a men and women, procreation, and upbringing of children. These purposes could not be served in the abovementioned circumstances. If the purposes envisaged are not fulfilled then the legislator permits the parties to separate if they wish. Now in the legal sense a person is considered to be dead if he is not heard for seven years; hence it is a ground for divorce. Under the marriage laws both the spouses need to be from the same religion and hence if one changes his/ her religious faith the other can seek divorce on that ground. The case of desertion and renunciation of the world is also not different. The grounds envisage some guilt on the part of either party. When the concept of marriage as reflected in the laws is not satisfied, the other party can opts for divorce. So there are reasons behind the grounds for divorce in the marriage laws. The grounds provided are perfectly in tune with the intention of the Act. When the whole purpose of the marriage as envisaged by the law is lost, divorce is permitted. Hence divorce was permitted as an exception not a rule, only in situations where the conditions for a valid marriage no more exist or where the purposes of marriage, according to the social consensus existing at the time the marriage laws were enacted, were not fulfilled. The need for such rigid divorce laws was necessitated by the social conditions which permitted polygamy and lack of security to the female against whom many social evils were prevalent. Even though the grounds provided were
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a replica of the English law of divorce it provided some kind of security to the members in the marital tie.
THE HUMAN RIGHTS JURISPRUDENCE AND THE NEED FOR CHANGE IN THE DIVORCE LAWS
Since then many social changes have taken place in the society which restructured the traditional stereotypical role assigned to men and women in the family. One of the reasons of this change is the emergence of human right jurisprudence. The 1960s Women's Liberation Movement has an important role in it. It constitute series of campaigns for reforms on issues such as reproductive rights, domestic violence, maternity leave, equal pay, voting rights, sexual harassment, and sexual violence. The ideas behind the movement were woman’s right to control her own body is fundamental to equality, she should be able to freely leave unhappy marriages and she can combine work and family. This movement challenged the prevailing notion that women were supposed to engage their entire life in housework and raising children. They started to demand for equal employment opportunities and to changes in discriminatory laws. Women began to seek freedom, respect, and the right to an individual identity and a fulfilled life. The scenario became complete with the passing of UN Convention on the Elimination of all forms of Discrimination against Woman in 1979. For the first time woman’s rights were recognized as human rights and her equal status with that of man was recognized.
The feminist movement effected changes in society including the right to initiate divorce proceedings and "no fault" divorce, right to make individual decisions regarding pregnancy and the right to own property. She can now influence the decisions in the family. But in the negative side increased employment opportunities have contributed to a rise in divorce rates. Stresses of working and raising children, the failure to manage both family and work and the shredding of the social safety net imposed much pressure on women. Decrease in the time spent at home and interaction with family resulted in differences and conflicts which culminated in divorces. The financial independence gave her an option to walk away from an unhappy relationship. These factors negatively affected the marital relationship and contribute to the increased divorce rates because others may be reluctant to change their attitude about the stereotypical roles of men and women. Hence woman’s employment and subsequent economic independence might have also
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contributed to the increased rate in divorce. Along with it the notions regarding the purposes of marriage also changed. Now people marry not just for procreation or to meet the sexual needs. Spouses seek more emotional companionship when that is lacking in the tie the option is divorce.
But the divorce laws in India have not gone much change with the pace of time. Individualistic jurisprudence views such strict and rigid divorce law as a limitation on the individual liberty in the sense that if a man or woman does not want to continue the relationship as part of personal autonomy, separation is not possible because of the limited grounds provided in the divorce laws and their case does not come within its ambit. Individual centric human rights jurisprudence promote the exercise of one's goals and desires, independence and self-reliance while opposing most external interference upon one's own interests, whether by society, family or any other group or institution. The foundation of individualism lies in one's moral right to pursue one's own happiness. Hence there is a conflict between the divorce laws and the individual autonomy jurisprudence developed by the Human Rights Law.
Freedom to get divorce as part of right to marriage could be seen as a product of individualistic approach in human right jurisprudence. Anything which hinders the self-attainment and total happiness of the individual is highly deplored. Hence strict divorce laws which provide only limited grounds to get out of the marital tie appears to compel a person to compromise their freedom for the sake of integration of the family structure, child’s welfare and likewise even when they are not happy with such life. There is absolute freedom to marry or not to marry. But once you decide to enter into this circle your life gets connected to others. The freedom to get out of the circle is limited as that would result in the violation of rights of the child or disintegration of the institution of family culminating in the disintegration of the society. But there may be situations of gross incompatibility which does not fall into any of the grounds provided in the divorce laws. In such situation it is unjust to compel the spouses to lead a life of unhappiness just because the divorce laws are not contemporary.
No fault theory or consent theory of divorce is a product of individualistic human right jurisprudence. The proponents of consent theory hold that parties to marriage are as free to dissolve a marriage as they are to enter it. If marriage is a contract, based on free volition of
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parties, the parties should have equal freedom to dissolve it. Freedom of marriage implies freedom of divorce.
THE JUDICIAL APPROACH
With regard to the attitude of judiciary, change towards no fault theory started with Ashok Hurra v. Rupa Bipin Zaveri.13Here the parties sought a decree of dissolution for the marriage by mutual consent but later the wife withdrew her consent. The Supreme Court observed that the acrimonious legal battle between the parties through allegations and counter-allegations over 12 years shows that continuance of relationship will only lead to torture and agony and that the marriage between the parties is dead and has irretrievably broken down. Thus in spite of withdrawal of consent by the wife, the court using its power under Art.142 of the constitution allowed the divorce. The court sought support in the seventy first Report of the Law Commission of India14 on the Hindu Marriage Act, 1955 “Irretrievable breakdown of marriage is now considered, in the laws of a number of countries, a good ground of dissolving the marriage by granting a decree of divorce. Proof of such a breakdown would be that the husband and wife have separated and have been living apart for, say, a period of five or ten years and it has become impossible to resurrect the marriage or to reunite the parties. Once it is known that there are no prospects of the success of the marriage, to drag the legal tie acts as a cruelty to the spouses and gives rise to crime and even abuse of religion to obtain annulment of marriage.
Restricting the ground for divorce to a particular offence or matrimonial disability causes injustice in those cases where though none of the parties is at fault; there has arisen a situation in which the marriage cannot be worked. In such circumstances there is hardly any utility in maintaining the marriage as a facade, when all the emotional ties are disappeared. After 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. Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes
13 (1997)4S.C.C.226, Anil Kumar Jain vs. Maya Jain (2009)10S.C.C.41
14 71st law commission report, 1976 10 | Page Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 3
from enjoying things in common and from showering love and affection on one's offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage -- "breakdown"- and if it continues for a fairly long period, it would indicate destruction of the essence of marriage – ‘irretrievable breakdown’.”
The trend of thought which found expression in Ashok Hurra's case was followed in subsequent cases where by using the power u/Art. 142 divorce on the ground of irretrievable break down was granted because of incompatibility of temperament, total disappearance of emotional substratum in the marriage and when the matrimonial bond is beyond repair.15 In Anil Kumar Jain vs. Maya Jain16, in spite of the withdrawal of consent by one party in an application for divorce by mutual consent court granted divorce using its extraordinary power u/Art.142 on the ground of irretrievable break down.
The change in the definition of cruelty over the years also shows that there is a shift towards individualistic approach. Now it is the perception of the person who endure the cruel behavior is the standard to determine whether the alleged conduct amounts to cruelty. Cruelty is interpreted in such manner that concept of irretrievable breakdown comes inherent in it. Thus judiciary is applying the concept of irretrievable breakdown indirectly through the concept of mental cruelty.
One of the important decisions relating to irretrievable breakdown of marriage is Bhagat v. Bhagat17, where mental cruelty was explained in detail by the court. The court observed that , earlier what is to be determined is not whether the petitioner has proved the charge of cruelty, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent. This requirement is no longer present in Section 13(1)(i)(a)18.
15 Sandhya M. Khandelwal v. Manoj K. Khandelwal (1998) 8 S.C.C. 369, Sanghamitra ghosh v. kajal kumar ghosh (2007) 2 S.C.C. 220, Swati Verma (Smt. ) v. Rajan Verma and Ors. (2004) 1 S.C.C. 123, Anita Sabharwal v. Anil Sabharwal (1997) 1 S.C.C. 490, 16 (2009)10S.C.C.415 17 A.I.R.1994 S.C.710, Samar Ghosh Vs. Jaya Ghosh2007(4 )S.C.C.511, Smt. Shashi Bala Vs. Shri Rajiv Arora, Denying sex to spouse is mental cruelty and a ground for Divorce , 21.03.2012 FAO No.185/2001 18 Hindu Marriage Act, 1955 11 | Page Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 3
Mental cruelty in s. 13(1)(i)(a) is now interpreted as the conduct which inflicts upon the other party such mental pain and suffering as would make it impossible for that party to live with the other. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. What amounts to cruelty is determined in each case having regard to the facts and circumstances of that case. It is a course of conduct of one which is adversely affecting the other. In the case of mental cruelty the enquiry must begin as to the nature of the cruel treatment and the impact of such treatment on the mind of the spouse, i.e., whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, and the culture and human values to which they attach importance. The judges must not import their own notions. To establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill- treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty.19
Hence we can see that the clause relating to mental cruelty under Section 13(1)(i)(a) is a step towards accepting irretrievable breakdown of marriage as ground for divorce. 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.20 Court strongly advocated incorporating irretrievable breakdown in law to grand divorce in such circumstances. In all those cases court allowed divorce on the basis of irretrievable breakdown of marriage on satisfying there is no possibility of reconciliation21. In K.Srinivas Rao v. D.A.Deepa22 Court held that if we refuse to sever the tie, it may lead to mental cruelty. Irretrievable breakdown of marriage is a weighty circumstance
19 Sirajmohmedkhan Janmohamadkhan v. Harizunnisa Yasinkhan [1982]1S.C.R.695 20 Paras Diwan, Hindu law, Allahabad Law Agency, Allahabad (2nd edn.- 2005), p.563. 21 Naveen Kohli Vs. Neelu Kohli (2006)4S.C.C.558, Sanghamitra Singh v. Kailash Singh A.I.R.2001 Ori.151, Krishna Banerjee v. B. Bandopadhay A.I.R.2001 Cal.154, Swati Verma v. Rajan Verma A.I.R.2004S.C.161, Kanchan Devi v. Promod KumarMittalMANU/SC/1515/1996, Chandrakala Menon v. Vipin Menon(1993)2S.C.C.6, Sandhya Rani v. Kalyanram Narayanan MANU/S.C./1107/1994, Ms. Jorden Diengdeh v. S.S. Chopra A.I.R. 1985 S.C. 935, Sahebrao and anr. v State Of Maharashtra2006(9)S.C.C.794, Vishnu Dutt Sharma v. Manju Sharma(2009)6S.C.C.379, K. Srinivas v. K. Sunita 2014 SC, 22 (2013) 5 SCC 226 12 | Page Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 3
amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the Court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried up there is hardly any chance of their springing back to life on account of artificial reunion created by the Court's decree.
Thus the Supreme Court in many cases invoked the power under Art.142 to surpass the statutory requirement. It waived the minimum period of six months before moving the petition for divorce by mutual consent, converted petition to transfer the case to one of divorce by mutual consent and granted divorce, tried to provide divorce on the grounds which are not provided in the statute, read down the requirement of two year separate residence to one year and so on.
Further, the 18th Law Commission in its 217th Report23 titled 'Irretrievable Breakdown of Marriage —Another Ground for Divorce' recommended that 'Irretrievable breakdown of marriage' should be incorporated as another ground for grant of a decree of divorce.
In this juncture some of the High court decisions can also be analyzed. In Abdul rahiman v. khairunnissa24, the issue raised was whether the assertion of wife that she was not treated equitably by the husband should be taken as the evidence of inequitable treatment to grant divorce. Court observed in Islam marriage is an institution to facilitate enjoyment of life and if the institution does not cater to enjoyment of life, the parties should be able to walk out of it. Matrimony today is not merely an arrangement of convenience for exhausting biological, physical and carnal urges or an arrangement between the master and a slave or domestic maid hired for life for performing the domestic chores of cooking, home management and rearing of children. Instead it is an arrangement of lasting friendship, partnership, mutual complementarities, affection and love, support, caring and sharing between two adult equal partners.
A welfare socialist State must recognize the right of a spouse to honorably walk out of an emotionally dead marriage with an incompatible spouse. The court asked some disturbing questions like is marriage an institution for imprisonment for life against the volition and desire of individuals? If either party does not want to continue matrimony can and should the system
23 2009, March 30 24 2010(1)K.L.T.891 13 | Page Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 3
and laws compel him/her to continue to endure such matrimony? Cannot individuals be safely entrusted with the right to choose their own fate? Should not marriage laws and the system realistically recognize that compatibility is sine qua non for the success of the institution of marriage? Should marriages dead de facto continue to live de jure? If so forwhose benefit? Are the children in a nuclear family going to benefit in any manner by the continuance of such a dead matrimony between warring parents? Nature or God gives a person one opportunity to live in this stint of life and should she/he not be permitted to so arrange his life as to pursue happiness in a manner that is not opposed to public order and morality? Should not spouses of unhappy marriages be permitted to walkout of such marriages honourably and as friends on the mere ground of incompatibility of temperament, after the mandatory period of waiting, counselling and conciliation? Are people going to walk out of solemn marriages merely because law offers such opportunity to redeem themselves from dead marriages?
Here the court held it is her assessment that matters. It is not the assessment of the husband who feels that he is attempting the same and is actually treating his wives equitably. The reason behind the liberal attitude towards dissolution is the parties need not reveal intimate confidential details in the realm of privacy to outsider. The relationship can be terminated honorably and the parties can part as friends. Apart from the accepted grounds for divorce there could be situations of gross incompatibility between the spouses which is graver than the existing grounds. Only the spouses could tell how much they have been affected by living with a person whom they cannot tolerate by any means. It may not because the spouse is bad, cruel or anything. It is simply they are not happy in living a life with them. Here the court made an honest attempt to recognize the graveness of incompatibility between the spouses and freed them from the unhappy marital bond.
In Manoj v.Vidhya25, court ruled that right to life under Art. 21 of the constitution include the right to a healthy harmonious matrimonial life. Whatever may have been the history and the events of the past, in present civilized society, physical assault in the domestic environment must be condemned. Even if such conduct is not culpable physical cruelty punishable under the penal law it would be actionable cruelty under matrimonial law warranting termination of marriage. Court observes that no greater disservice to the cause of emancipation and empowerment of
25 2010(2)K.L.T.305
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women can be done by law and the system than the condonation of such acts on the theory that they are only natural or ordinary wear and tear of married life. The right to opt out of an emotionally dead marriage will have to, be essentially accepted as an incident of the right to life. Hence the court went a step forward in considering individual happiness as the basis of marriage and any marital bond which does not provide such comfort and happiness ought to be dissolved. The individualistic approach of the court could be clearly inferred from this judgement.
In Saumya AnnThomas v. Union of India26, by reading down the mandatory period of two years of separate residence27 before presentation of petition for divorce by mutual consent to one year, the court observed that divorce Act is not a pure personal law. It must pass the test of constitutionality even if the provision is based upon religious principles. Section 10A28 attempts to introduce the secular concept of divorce by mutual consent into the personal law. There is no justification in classifying persons on the basis of their religions and applying the law unequally to them. Now the concept of divorce by mutual consent is applicable to all Indians. Having made it applicable to all Indians, it is not constitutionally right, just or fair to discriminate the Christian members of the group on the ground of their religion and to insist on a longer period of mandatory minimum separate residence. It offends the mandate of equality under Art.14. In Ramlakhan v. Meenabai 2014, MP High Court held that acrimonious allegations against each other show a relationship of mutual dislike bordering on hatred. Therefore, it is a case of irretrievable breakdown of marriage and allowed divorce.
REVIEWING THE DIVORCE LAWS
A law of divorce based on fault theory is inadequate to deal with a broken marriage. Marriage today is a social institution of partnership, friendship, mutual complementarities, love, and affection, caring and sharing between two equal partners. Partners walk into the institution of marriage purely based on their consent and volition. The couples seek love, comfort and happiness, understanding and other emotional needs. If the marital life cannot ensure such happiness and comfort the spouses should not be compelled to stay in the marital tie. When the institution of family fails to satisfy those needs people become frustrated and tries to get out of it.
26 2010(1)K.L.T.869 27 S.10 A of Divorce Act, 1869 28 Special Marriage Act, 1954 15 | Page Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 3
When the family limits the personal freedom beyond limits, suppress the desires of men and woman and take interest only in keeping the family structure intact it results in family disruption. The development of communication and technology made the people aware of the heights they can achieve beyond the four walls of family. They realized that world is their oyster and other people are getting the opportunity to achieve their oyster which the former are deprived. This awareness also stimulates their dreams which are otherwise suppressed by the four walls of the family. A certain degree of freedom and space is vital to make way for personal growth and development in relationships and even for the development of family. However, very often we come across circumstances where marital responsibilities become so overbearing that they deprive a person of his or her basic rights and liberties. Instead of being a source of peace and equanimity, a marriage becomes a reason for stress and tension which prompt them to seek divorce as an escape route.
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. There could be gross incompatibility between the spouses due to many reasons which are graver than the grounds provided in the divorce laws. It is injustice to let the parties to live a life of misery and unhappiness just because the grounds are limited. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.
One can argue that it is for the benefit of the child or protecting the institution of family or culture etc. but when we deeply analyze the situation we can see that miserable marriages where there is no compatibility between the spouses will only adversely affect the child. There are examples to show that such child will develop criminal tendencies when he has to endure each day with parents who are quarreling and acting like enemies in home. In an era where numbers of single parents are at an increase, child won’t be much affected by the divorce. He would prefer a peaceful atmosphere rather than incompatible unhappy family atmosphere. One cannot assert that the best interest of the child lies in living with both parents even when there is no compatibility between them. Life with parents who are incompatible and unhappy will adversely affect the child especially in a nuclear family. Child has to bear, endure and live with the mutual
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enmity between the parents every day in solitude with no one to share. Parents due to their mental tension and frustration could not be able to cultivate the values of life in the child. A proper spiritual, social, moral, intellectual, cultural development will not be possible for a child in such circumstance. Regarding the effect on children it is not divorce itself that harms children. The harm is caused by the various circumstances such as marital violence. Whose conditions will be better? The child of a married couple who witnesses domestic violence and dislike on a daily basis, or the child who lives with a single parent although deprived of the attentions of one parent but lives a life of peace and free from violence.
Inspired from the judicial decisions and the recommendations of the law commission reports the Marriage Laws (Amendment) Bill 2013 was passed by the Rajyasabha. But unfortunately it has not become law yet. The Bill provides for amendment of the Hindu Marriage Act 1955 and the Special Marriage Act 1954. Law ministry, in 2014 again drafted a Marriage Laws (amendment) bill including irretrievable break down of marriage. The bill provides that either party can approach the court for divorce on the ground of irretrievable break down of marriage. But before presenting the petition the parties should have lived apart continuously for a period of three years. Wife may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her. Before passing the decree the court has to make provision for the financial support of the children. The bill also provides the court may reduce the period specified in divorce by mutual consent to a lesser period and the court may waive off the requirement for moving the motion by both the parties, if it is satisfied that the parties to the marriage are not in a position to reconcile their differences.
In 2008, the Kerala Muslim Women (Relief on irretrievable breakdown of marriage and prohibition of talakul bidaat) Bill was brought by the Kerala legislature by which when a muslim woman has suffered an irretrievable breakdown, the court of competent jurisdiction shall pass a decree of dissolution of her marriage on that ground.
Let us hope that legislature will soon shed off its hesitation and turn the bill into law to introduce irretrievable break down of marriage as a ground for divorce. The requirement of three years separate residence before making the petition in the bill should be brought down to one year.
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Thus it will serve as an escape valve for those couples who suffer from gross and serious incompatibility and every possibility of reconciliation is exhausted. The court must take precaution to see that the provision is not misused for trifle differences and petty quibbles. Court while passing the decree must also make provision for the financial arrangements for the spouse and the children.
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