Irretrievable breakdown of marriage: a ground for divorce

On March 23, 2012, the Union Cabinet approved the Marriage Laws (Amendment) Bill, 2010, by which ‘irretrievable breakdown of marriage’ was included as a ground for dissolving a marriage under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.

The proposal for including ‘irretrievable breakdown of marriage’ as a ground for divorce was first made almost three decades ago in the Seventy-first Report of the Law Commission of India. As per the Report, “..the Hindu marriage should be allowed to be dissolved if the husband and wife have lived apart for a period of say five to ten years and the marriage is irretrievably broken down due to incompatibility, clash of personality or similar other reasons, as is permissible under many systems of law of advanced countries.”

Likewise, as per the current amendments, either party can present a petition for divorce under this new ground. Both parties however have to live apart for at least a period of three years before filing for divorce owing to irretrievable breakdown of marriage. According to the Cabinet note, a wife can oppose a husband’s plea for divorce under the new ground stating that the divorce would cause grave financial hardship. The husband however, cannot oppose a wife’s plea for divorce under this ground.

New Zealand was the first country to accept the concept of ‘irretrievable breakdown of marriage’ in 1920. Since then several countries have accepted it as a ground to seek divorce. In fact, in the United Kingdom, it is the only ground on which one can seek divorce.

In India however, ‘irretrievable breakdown of marriage’ had not been accepted as a ground for divorce under the Hindu law until now. The current grounds include, among other things, adultery, conversion to another religion, unsoundness of mind, a virulent and incurable form of leprosy, venereal disease in a communicable form, renouncement of the world, and not having been heard of as being alive for a period of seven years. The provisions for seeking divorce for cruelty and desertion were introduced only in 1974.

As early as 1967 however, a full bench of the Delhi High Court in Ram Kali v. Gopal Dass, had said that, “ it would be unreasonable and inhumane, to compel the parties to keep up the façade of marriage even though the rift between them is complete and there are no prospects of their ever living together as husband and wife.”

The Seventy-first Report had observed that the Muslim, Christian, and Parsi personal laws allow for divorce procedures that are much simpler than under the Hindu Marriage Act, 1955. The restrictions contained in the Hindu Marriage Act have led many people to convert to another religion in order to seek divorce. The introduction of this new ground will aid those seeking to get a divorce in a faster manner. This new ground will also reduce the compulsion to produce evidence of acrimony and bitterness in a marriage, which is necessary when divorce is sought under some of the existing grounds.

The mandatory “waiting period”, usually a minimum of six months, for couples initiating divorce proceedings through a mutual consent petition has been retained. The original draft of the bill had suggested doing away with this waiting period altogether but this was opposed by a Parliamentary standing committee. However, the Court may reduce the waiting period based on the facts and circumstances of the case.

While the new ground seems progressive, what will its impact be on women’s lives? Divorce can still lead to financial ruin for women. Advocate Sunieta Ojha, who has practiced family law in the Delhi High Court said, “By all means go ahead and amend the law to make irretrievable breakdown of marriage as a ground of divorce, but before that please amend the law to remove the concept of ‘maintenance’ and bring about a law for equal distribution of matrimonial property. Then and only then will there be parting of spouses in a dignified manner and without exploitation by one in command of all financial resources to dump the other. Without a law to ensure ‘rights’ for women in the matrimonial property (not merely a provision of maintenance) I am afraid such a move will result in exploitation of women.”

Considering the pressure from women’s groups, the Cabinet has agreed to amend the Bill to include equal share of ‘residential property’ to be granted to the wife upon divorce. This would include property acquired before marriage.

Yet, many disagree with the introduction of the new ground. As per Advocate Vipul Dharmani, practicing in the Punjab and Haryana High Court: “The introduction of ‘irretrievable breakdown of marriage’ reduces the scope of mediation. In my experience more than half the matters are solved during the course of mediation. Therefore the efficacy of this new ground will have to monitored closely.” At the moment mediation plays a vital role in divorce matters.

Senior Advocate Geeta Luthra speaking on how the role of mediation will change with the advent of this new ground said, “The role of mediation will be reduced to some extent but will not obviate it. Eighty per cent of women seeking divorce would want maintenance and custody of the child(ren) and mediation will play a role in settling these issues.”

In keeping pace with the changing times, the policy of the law now, seems to be that a marriage on the brink of dissolution must be dissolved with minimum financial and emotional turmoil to the parties concerned. While this may be a necessary amendment, in order to secure women’s rights and ensure that they are not rendered homeless upon divorce, a comprehensive law giving women right in the property of the husband should be enacted.