As the government pushes for an amendment in the Hindu Marriage Act and the Special Marriage Act to add "irretrievable breakdown of marriage" as a ground for divorce, the Delhi High Court has cautioned against the plight of children who bear the brunt of legal battle between parents.
"If this ground is added it has to be ensured that the children do not bear the brunt ... and that a proper mechanism is in place for taking care of all their needs," Justice Kailash Gambhir said dismissing a husband's plea for divorce on the ground of "irretrievable breakdown of marriage".
The Delhi man had requested the court to allow his divorce petition on the basis of breakdown of marriage after he failed to prove cruelty and desertion on the part of his wife.
"It is expected that watertight safeguards are introduced so as not to send the message that now divorce has become a cakewalk," he added.
"A divorce from a spouse is not a divorce from the children and they should not be punished for the act of their parents.... they (children) suffer immensely; emotionally, psychologically and even financially...," Justice Gambhir noted.
Describing the child as a "mute spectator" who is officially not a party to the lawsuit, the HC said, the child's well being should be the focus.
"In cases where there are children born out of the wedlock, adequate provision for the grant of maintenance, education and upbringing of the children should be in place before grant of divorce… The issue of custody of children and visitation rights should also be decided at the very state of divorce itself," Justice Gambhir said.
The HC said where the husband orchestrated a breakdown of marriage, it should be ensured that the wife was not left impoverished or at the mercy of her parents.
"Where this ground has been invoked by the husband, the grant of divorce should be subject to adequate financial provision for the wife," he said.
The HC suggested that "irretrievable breakdown should be an independent provision and not a complementary or supplementary one and there should be a minimum period before which this ground cannot be invoked.
"The goal to add this ground should be with the aim of providing a solution to a lethal problem and not to defame the Act for breaking more families than it has united," the HC said.
Union minister Sushil Kumar Shinde's daughter has moved the Supreme Court to make it a ground for divorce.