A SUGGESTED REFORM IN HMA, 1955: INCLUSION OF IRRETRIEVABLE BREAKDOWN OF MARRIAGE AS A GROUND FOR DIVORCE

Barring Islamic Law, Personal laws in India do not constitute irretrievable breakdown of marriage as a ground for divorce. This essentially means that laws in India do not recognise a situation where the relationship between husband and a wife has broken down to a point where they live under the same roof but their marriage is akin to separation. It is hard to contemplate that in our country we do not have codified laws for a circumstance when there is almost no reasonable chance of the couples getting back together. With the changes in our society, how we view marriage as an institution has to develop. Traditionally, marriages are considered sacred and people try hard to maintain it despite the obvious difficulties. However, the Supreme Court has shown considerable concern over this matter and has held irretrievable breakdown as a valid ground for divorce making those cases exceptional. If the legislation follows suit, there can be widespread dissemination of this idea and people across the map, who are trapped in vicious relationships can get relief. In the case of A.Jayachandra v. Aneel Kaur, the Supreme Court was faced with one such situation. The facts were such that the wife had prioritized her profession over her partner’s freedom. The points at the marriage pointed the Court towards resentment, dissonance and disintegration between the partners. There was no sign of marital unity or harmony in the family and the Court deduced that there irretrievable breaking of marriage and granted divorce to the husband. But, such cases are a sight of rarity as most courts will order for the restitution of conjugal rights, instead of granting a decree for divorce. The core of most judgments lays in the Hindu marriage being the very foundation of our society. Since, both Parties cannot often come on the same page regarding such issues, the partner has to live in agony.
One of the facts from which such a breakdown can be supposed is, when the partners have been living apart from each other for a long time. The period of time should be enough to substantiate that there can be reasonable presumption of breakdown. Here, we can look to the 1994 case of Sandhya Rani v. Kalyanram Narayanan. The apex court was of the view that if the parties live separately for over three years, there can be no iota of doubt that the marriage between the parties has irretrievably broken down and there remain almost no chance of their coming together.
Additionally, in the case of Naveen Kohli v. Neelu Kohli has gone ahead and recommended an amendment to the Hindu Marriage Act where either of the two spouses can elude irretrievable breakdown of marriage as a ground of divorce. The Court showed massive for a number of cases where divorce was not granted and was sympathetic towards the agony of the people who would have to still stay under the same roof even if their marriages “were virtually dead”.The Court observed that public interest demands cannot override the fact that the marriage has been wrecked beyond any hope of being repaired. Court urged that legislature should take, recognition of the fact and make necessary amendments. The judges opined that there cannot be any acceptable way in which someone can be compelled to continue life with the consort and that causes. The bench recognized their responsibility to adequately respond to the needs of the society.
Therefore, it is our opinion marriages should not be sustained on such external notions of sanctity and obligation and the society has to overcome the stigma and address the mental health issues such relationships and dependencies may cause an individual. Any custom or ritual is ancillary to the need of real human beings in the society.
By-
Prerona Banerjee.
Student Reporter- INBA