Degrees of separation
It would be better if the centre gives discretionary powers to the courts to invoke the breakdown theory in all divorce cases pending for 10 years or more, writes Satya Prakash.india Updated: Jul 21, 2010 23:07 IST
After two Law Commission reports and several Supreme Court verdicts in favour of making ‘irretrievable breakdown of marriage’ a ground for divorce, the Centre is ready with a Bill to amend the Hindu Marriage Act (HMA), 1955, and the Special Marriage Act (SMA), 1954. But contrary to popular perception, the Marriage Laws (Amendment) Bill, 2010, does not add it as an independent ground for divorce in the two laws. ‘Irretrievable breakdown of marriage’ is a situation where a marriage is damaged to such an extent that it cannot be salvaged.
The proposed amendment, which is likely to be introduced in Parliament in the monsoon session, is limited in its scope. It intends to save from harassment only those individuals who first file divorce petitions by mutual consent but later one of the two parties backs out of the court proceedings.
Traditionally, divorce was alien to Hindu marriage and it was recognised under the Hindu law for the first time in 1955 when the HMA was enacted. Its Section 13 enumerates various grounds for divorce: adultery, cruelty, desertion and mental illness. All these grounds are based on a fault theory: a spouse has to prove matrimonial fault on the part of the partner to get a divorce. Section 27 of SMA lays down similar grounds.
But there was no provision to deal with a situation where both parties wanted to end the marriage. To address this problem, Section 13-B was added to HMA in 1976 to provide for divorce by mutual consent. Section 28 of the SMA has a similar provision.
A petition for divorce filed by mutual consent, if not withdrawn before six months after its presentation or not later than 18 months, gives the courts ground (on being satisfied after making enquiry) to grant a decree of divorce by mutual consent.
But in many cases, one of the parties often abstains from court proceedings and keeps the case pending to the disadvantage of the other. The amendment seeks to address the legitimate concerns of the party “in dire need of divorce”.
People have expressed apprehensions about the possible fallout of the amendment on the institution of marriage and women, particularly in rural India. They say that women who are not economically independent will lose their ‘bargaining power’ during divorce proceedings if this amendment is passed.
But these apprehensions are baseless. The Cabinet’s decision makes it clear that the amendment is only to the provision dealing with divorce by mutual consent and ‘irretrievable breakdown of marriage’ will not be an independent ground for divorce. Even after this amendment translates into law, no one can file a divorce petition on this ground. It can be invoked only in cases for divorce by mutual consent and that too if one of the parties withdraws from the proceedings after filing a joint petition.
Second, despite the rising number of divorce cases, particularly in cities, the overall divorce rate in India is just 1.1 per cent, much lower than 55 per cent in countries such as the US and Sweden.
In fact, the issues involved go much beyond a husband-wife relationship. As the primary unit of society, marriage plays a crucial role in providing emotional and economic security to men and women and provides an environment conducive for the upbringing of children. A failed marriage can have traumatic psychological impact not just on the man and the woman but also the children, who are the worst sufferers in most such cases. It was for this reason that the Law Commission in 1978 recommended that ‘irretrievable breakdown of marriage’ should be recognised as a ground for divorce. The Commission reiterated its recommendations in its 217th report last year. The Supreme Court, which has been reminding the government of the need to give it statutory recognition, has granted divorce in several cases using its power to do complete justice under Article 142 of the Constitution.
The breakdown theory cannot be limited to cases filed under the provision for divorce by mutual consent alone. The proposed amendment does not address the problem of men and women fighting it out in courts for years. It would be better if a provision is added to the proposed amendment to give discretionary powers to courts to invoke the breakdown theory in all divorce cases pending for 10 years or more.