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SC for amendment of Hindu Marriage Act

The bench referred to matrimonial laws which maintained that divorce should be seen as an escape route of a difficulty.

india Updated: Mar 22, 2006 21:49 IST

The Supreme Court has recommended to the Government to 'seriously consider' bringing an amendment in the Hindu Marriage law to make "irretrievable breakdown" of marriage as a ground for divorce.

Expressing concern that divorce could not be granted in number of cases where marriages were virtually dead due to the absence of the provision of "irretrievable breakdown" under the Hindu Marriage Act, 1955, the court strongly advocated incorporating this concept in the law in view of the change of circumstances.

"Ultimately, it is for the legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the legislature must consider it as a ground for divorce under the Act," a bench comprising Justice BN Agrawal, Justice AK Mathur and Justice Dalveer Bhanari said.

The bench referred to matrimonial laws of various countries and reports including one by eminent international jurist Salmond who maintained that "divorce should be seen as a solution and and escape route of a difficult situation".

"We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties.

"Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair," the bench said.

"The marriage becomes a fiction, though supported by a legal tie. By refusing to sever the tie the law in such cases do not serve the sanctity of marriage, on the contrary, it shows scant regard for the feelings and emotions of the parties," the bench added.The Supreme Court has recommended to the Government to 'seriously consider' bringing an amendment in the Hindu Marriage law to make "irretrievable breakdown" of marriage as a ground for divorce.

Expressing concern that divorce could not be granted in number of cases where marriages were virtually dead due to the absence of the provision of "irretrievable breakdown" under the Hindu Marriage Act, 1955, the court strongly advocated incorporating this concept in the law in view of the change of circumstances.

"Ultimately, it is for the legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the legislature must consider it as a ground for divorce under the Act," a bench comprising Justice BN Agrawal, Justice AK Mathur and Justice Dalveer Bhanari said.

The bench referred to matrimonial laws of various countries and reports including one by eminent international jurist Salmond who maintained that "divorce should be seen as a solution and and escape route of a difficult situation".

"We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties."

"Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair," the bench said.

"The marriage becomes a fiction, though supported by a legal tie. By refusing to sever the tie the law in such cases do not serve the sanctity of marriage, on the contrary, it shows scant regard for the feelings and emotions of the parties," the bench added.

First Published: Mar 22, 2006 18:50 IST