The fundamental unit of society is family and a family is set up by the institution of marriage. The meaning of marriage has been a period of time. In the very primitive society, it was considered that marriage is an indissoluble tie, a tie made by the supreme being God. With progress and time laws were framed and dissolution of marriage emerged as an acceptable thought in the picture with the changes in societal attitudes.
With emerging ideas came the grounds of fault (fault theory) as a reason to dissolve the wedlock. If there is a fault on part of either spouse the marriage can be dissolved. For the times of high levels of indissoluble ties to consider fault as the ground of divorce gradual dilation in this institution were in the Hindu Marriage Act, 1955. There was a major step in society, however, divorce is still criticized by many who possess an orthodox mindset.
As the society marched forward, among other ideas one emerged that this tie or bond of two individuals is only possible by consent of man and woman. It is the voluntary decision of both to enter into the institution of marriage, the decision by mutual consent (mutual consent theory) to break this bond and live free should also lead to the dissolution of marriage.
It took years of history and societal advancement to understand, accept, and digest the mutual consent to be treated as a ground for divorce. Initially, this institution meant differently where the status of women was only confined from to bedroom, managing household chores, and raising up children. But today it is absolutely different where the lifestyle of the educated population has taken a huge leap from that it was previously. Obviously, a new society has new conduct which further gives birth to new issues and off course which is to be resolved and regulated by new laws. The same applies to the ‘irretrievable break down of marriage’ as a ground of divorce.
Irretrievable break down of marriage according to the 71st and 217th Law Commission report means “such failure in the matrimonial relationship or such adverse circumstances to the relationship that no reasonable probability remains for the spouses living together as husband and wife” in other words the relationship between the two is broken beyond repair.
Like grounds of fault theory and mutual consent theory The Hindu Marriage Act, 1955 nowhere provides for divorce on grounds of irretrievable breakdown of the marriage. The technicality behind this irretrievable breakdown of a marriage is that only one spouse is ready for divorce. When both the spouses agree for divorce they can apply by mutual consent or if one spouse is at fault on the ground mentioned in Hindu Marriage Act, 1955, he/she can apply for divorce but when only one spouse believes that marriage is failing despite the unwilling of another spouse to end the relation leaves the spouse weak on the legal platform to grant for divorce.
This makes Family Courts helpless to grant a divorce to the spouse on the ground that is not even provided by the law, because courts cannot function beyond the law and law in this matter does not give adequate power to family court to render justice. For instance, Mr. X and Mrs. X are living separately for many years and Mr. X is not happy with his matrimonial relationship with his wife, there is no emotion and feeling in the bond and yet Mrs. X is not ready for divorce and is also nowhere at fault as per grounds mentioned in Hindu Marriage Act, 1955, then it can be said that there are no remedies for Mr. X as per the Act. In other words, he is obligated to live in such a tie without any cause unwillingly. Other circumstances can be where one partner is a drug addict or alcoholic or one the partner is in prison for many years and his/her spouse is granting for divorce. Cases like these have no specific ground for divorce in the Hindu Law.
The Supreme Court had occasions at several times as to whether this irretrievable breakdown of a marriage can be recognized as a ground for divorce. The Supreme Court has a special power to render justice under Article 142 of Constitution which allows the apex court in exceptional cases to do complete justice when necessary any by invoking the same power various times it has granted a divorce on the basis of irretrievable breakdown of the marriage.
The Supreme Court itself held in case of Anil Kumar Jain v. Maya Jain[1], that the opportunity to grant a divorce on the basis of irretrievable breakdown of marriage lies only with the Supreme Court of India under Article 142 which provides that any appropriate order may be passed to do complete justice by the apex court.
In various cases, the Supreme Court has granted a divorce on the basis of irretrievable breakdown of marriage. In the case of Samar Ghosh v. Jaya Ghosh[2], the Supreme Court held that the parties have been living separately since 1990 in furtherance there is no emotion or feeling left between the parties and marriages irretrievably broken down so there is no reason to cling on it.
In the landmark judgment of Naveen Kohli v. Neelu Kohli,[3]the parties had married in 1975 and had three sons the husband alleged that due to ill temperament and rude behavior of the wife he cannot continue with the marriage and started living separately since 1994 in a rented accommodation. After that, there were various FIR lodged by the parties and many civil and criminal proceedings took place, finally, the matter reached the Supreme Court and the court in paragraph 17 held, “Even at this stage the respondent does not want a divorce by mutual consent. From the analyses of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant”. Hence, the court granted the divorce on the grounds of irretrievable holding that there was nothing left in the marriage and to continue to hold on with it would sham. In the same case, the Supreme Court recommended the Union of India to consider bringing an amendment Hindu Marriage Act, 1955 to incorporate irretrievable break down of marriage as a ground for divorce, and the court also notified the Ministry of Law and Justice for taking appropriate justice.
The government acted upon it and referred it to the Law Commission. The 217th Law Commission report in 2009 recommended for amendment of new ground for divorce as an irretrievable breakdown of marriage which was even suggested by the 71st Law Commission in 1978.
The legislature took note of it and brought an amendment in Hindu Marriage Act, 1955 and in Special Marriage Act, 1954 also that divorce can be granted if marriage irretrievably broken down. The amendment bill was introduced in Rajya Sabha in 2010 and passed in august 2013 but could not be cleared by the lower house due to the dissolution of 15th Lok Sabha 2014 and therefore the bill lapsed and could not become the law does the problem still remains unsolved since 1978.
Recently Supreme Court in the case of Mohnish v. Nidhi[4]had to again use the power of article 142 to grant a divorce to the parties on the ground of irretrievable break down of marriage. All this throws light on the dependency of the judiciary on legislature which up to some extent weakens the judicial system to render justice.
CONCLUSION
From the whole issue of this irretrievable breakdown of marriage all that can be inferred is that the problem our society was facing previously, which was even traced by 71st Law Commission 1978, is still into the play today. Since 42 years the state has unable to resolve this problem and the only remedy available in Supreme Court through article 142 of Constitution which can grant the divorce is also not an easy step in practicality. One spouse living in a dead marriage unnecessarily and unwillingly amounts to nothing but compel to live in the way he does not wants to and if seen from other prospective it can be termed as against Article 21 Right to Life. It would not be wrong to say that Irretrievable Breakdown of Marriage or cases where one spouse is unwillingly living in such a bond would amount to mental cruelty in the near future and this would be specifically be provided in the Hindu Law as a ground of divorce.
[1] (2009) 10 SCC 415
[2] (2007) 4 SCC 511
[3] (2006) 4 SCC 558
[4] (2019) SCC 1636
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