Author Name:   anooja

With the changing times, notions of fairness and justice assume newer and wider dimensions and customs and beliefs of the people change. These in turn demand changes in the structure of law; every progressive must make a rational effort to meet these demands...

 Constitutional Validity Of Marriage Laws Amendment Bill-2010

Marriage Laws Amendment Bill-2010 is constitutionally valid and it is in the true spirit of Constitution of India and satisfies the ground of reasonableness.

In introduction to 59th Law Commission of India Report, former Chief Justice of India Mr. P. B. Gajendragadkar observed:
“It may sound platitudinous but is nevertheless true that revision of law is must” in a dynamic society like ours, which is engaged on the adventure of creating a new social order founded on faith in the value system of socio – economic justice enshrined in our Constitution. With the changing times, notions of fairness and justice assume newer and wider dimensions and customs and beliefs of the people change. These in turn demand changes in the structure of law; every progressive must make a rational effort to meet these demands. Between the letter of the law and the prevailing customs and the dictates of the current value system accepted by the community, there should not be an unduly long gap.[1]

In the case of Chandralekha Trivedi v. S.P. Trivedi[2], the Supreme Court has not used the term irretrievable breakdown of marriage but has defined that the marriage is ‘dead’. Husband initiated a divorce proceeding on the ground of cruelty and also wife’s intimacy with young boys, after the nine years of marriage. Wife also made similar allegations against the husband. Their only daughter was already married when High Court granted a divorce decree. On appeal, Supreme Court felt that it would be futile to decide the allegations and counter-allegations as the marriage became dead.

Section 13 C, D, E of the Marriage Amendment Act 2010 does not violate Article 14, 15 21 and 25 of Indian Constitution.
"The law cannot compel a woman, who is emotionally and mentally unable to cope with a marriage, to remain bound in wedlock to her spouse even when it is established that the marriage is dead. The compulsion upon wife to obtain the consent of the husband to maintain and prosecute a petition of divorce by mutual consent is violative of the principles of gender justice and thereby of the Article 14 and 21 of the Constitution,"[3] It has been observed that the parties who have filed petition for mutual consent suffer in case one of the parties abstains him or herself from court proceedings and keeps the divorce proceedings inconclusive.[4]

Section 13D Amending of the Marriage Laws Amendment Bill, 2010 is gender neutral. There is a very severe and disturbing trend these days to create duplicate laws in the Gender area when existing laws serve the same purpose. Indian Maintenance laws where maintenance can be demanded by a wife using 5 separate laws namely Hindu Marriage Act 1955 Sec 24, Hindu Marriage Act 1955 Sec 25, Criminal Procedure Code Sec 125, Domestic Violence Act Sec12 and Hindu Adoption and Succession Act (Section 18). Most litigants use at least 3 at any time to maximize their gains from misusing maintenance laws. But Under this Amendment any one of the party can ask for the divorce on the ground of Irretrievable breakdown of marriage. Which itself says it is in accordance with Article 14 of the Indian Constitution which talks about equality. Further as this law is gender neutral it also satisfies Article 15 of the Indian Constitution which says for No discrimination. When either party is entitled to file a petition for a decree of divorce but unfortunately it may take five to ten years for a petition to be decided. But the prime of the life of the couples is thus wasted in courts to obtain a final verdict!!![5]
If the parties have been living separately for a long period, there is sufficient proof of irretrievable breakdown. Even if the parties are brought together by certain pressures, like pressure by parents / elders / well wishers, they cannot lead a happy life as the long separation becomes the genuine course of suspicion among the parties.[6] Wife and Husband in many cases approach different Courts stating that they are being forced to live in an unhappy and unwanted marriage which violates fundamental right to live life with dignity, guaranteed by Article 21 (right to life) of Constitution”. Hence this Act is the solution to their problems therefore this amendment Act is constitutionally valid and is in accordance with Article 21 of the Constitution.

The Act would provide safeguards to parties to marriage who file petition for grant of divorce by consent from the harassment in court if any of the party does not come to the court or wilfully avoids the court to keep the divorce proceedings inconclusive[7]

According to Article 25 of the Indian Constitution sates about Freedom of Conscience and Religion but it also states about the Social Welfare and Reforms[8]

The story of social reform involves reform in personal law. It is an unending story. It continues from generation to generation. Each generation contributes to the continuance of an effort of the social reform, but the effort is never concluded and the end is never reached in the sense that no further attempt to reform is required. “To survive, we need a revolution in our thoughts and outlook. From the altar of the past, we should take the living fire and not the dead ashes. Let us remember the past, be alive to the present and create the future with courage in our hearts and faith in ourselves”[9] At present, various grounds for dissolution of marriage by a decree of divorce are laid down in section 13 of the Hindu Marriage Act, 1955. The grounds inter alia include adultery, cruelty, desertion, conversion to another religion, unsoundness of mind, virulent and incurable form of leprosy, venereal disease in a communicable form. This Amendment is just adding one more Ground for divorce which is already a ground. Nobody thought much about the fact that divorce by mutual consent, sold to us as a recent ‘modern’ invention, has in fact always been an integral part of traditional Hindu and other personal laws, including Muslim law.[10]

Amendment satisfies the ground of reasonableness’
The glorious words of a progressive judge, Justice V. R. Krishna Iyer are immortal:
“Daily trivial differences get dissolved in the course of time and may be treated as the teething trouble of early matrimonial adjustment. While the stream of life, lived in married mutuality may wash away small pebbles what is to happen if intransigent incompatibility of minds breaks up the flow of the stream? In such a situation we have the breakdown of a marriage itself and the only course left open is for law to recognize what is a fact and accord a divorce”.

Recently the Supreme Court Naveen Kohli v. Neelu Kohli[11] has recommended an amendment to the Hindu Marriage Act, whereby either spouse can cite irretrievable breakdown of marriage as a reason to seek divorce. Expressing the 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, the court strongly advocated incorporating this concept in the law in view of the change of circumstances. After referring the matrimonial laws of various countries and reports including one by eminent international jurist Salmond who held that, divorce should be seen as a solution and escape route of a difficult situation, the Bench comprising Justice B. N. Agarwal, Justice A. K. Mathur and Justice Dalveer Bhandari said, 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 the fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of separation it may fairly be surmised that the matrimonial bond is beyond repair. 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 party.

The Supreme Court held that in our considered view, looking to the peculiar facts of the case, the High Court was not justified in setting aside the order of the trial court. The apex court further observed, in our considered opinion, wisdom lies in accepting the pragmatic reality of life and take a decision which would ultimately be conducive in the interest of both the parties’’. The Court observed that public interest demands that the married status should, as far as possible, as long as possible and whenever possible, be maintained. However, where a marriage has been wrecked beyond any hope of being repaired, public interest requires the recognition of the fact. The judgment notes that there is no acceptable way in which a spouse can be compelled to resume life with the consort and that situations causing misery should not be allowed to continue indefinitely and that law has a responsibility to adequately respond to the needs of the society.

Similar view has been taken in Smita Dilip Rane v. Dilip Dattaram Rane[12], wherein it has been laid down that simply because the marriage has broken down and the parties can not live together, a decree for divorce can not be granted if the statute does not specifically provide for that. In Suresh Prasad Sharma v. Rambai Sharma[13], also, divorce was refused on the plea of absence of the irretrievable breakdown ground.

Later on, the judiciary has been adopting a more liberal and practical approach and several judgments of different courts prove the fact that they no longer stick to the traditional notion of inviolability of the marriage tie. One of the cases relating to irretrievable breakdown of marriage, is V. Bhagat v. D v. Bhagat[14], the apex court observed, irretrievable breakdown of the marriage is not a ground by itself. But while ascertaining the evidence on record to determine whether the ground alleged are made out and in determining the relief to be granted, the said circumstances can certainly be borne in mind. The usual step as the one taken by us herein can be resorted only to clear up an insoluble mess, when the court finds it in the interest of both the parties. In Sanghamitra Singh v. Kailash Singh[15], the husband sought divorce. The wife informed the court that the husband had already clandestinely married another lady, and a criminal case had already been filed against him. Granting the divorce the court observed:

‘Whether the husband has married for second time or not, it is now clear that the marriage has irretrievable broken down and none of the parties wants restoration of marital tie.... Accordingly by applying the doctrine of irretrievable breakdown, we grant a decree of divorce upon consent of both the parties.

In Krishna Banerjee v. B. Bandopadhay[16], where the husband was harassed by the wife by physical and mental cruelty, coupled with the fact that they lived separately for 16 years, the court found that it was a proper case for divorce, as the marriage between the parties had broken down and they could no longer live together as husband and wife. It is significant to note here that in circumstances where the courts are inclined to adopt a liberal or practical approach, the marriage between the parties would not be dissolved only on the propositions made by one of the parties that the marriage between them having broken down, no useful purpose would be served by keeping it alive. The court may take a holistic approach of the facts and circumstances of each case, also where a party is in a advantageous position for his or her own wrong and then try to plead breakdown of marriage, the court would not invoke its jurisdiction to dissolve the marriage on this ground. The profound reasoning is that in situation when there is absolutely no chance to live again jointly or when it is beyond repair, in such a case it would be futile to keep the marital tie alive. Here the ground of irretrievable breakdown is really needed.

Jyotsna Chatterji, director of the Joint Women's Programme said: "This will make it possible for couples who have decided on divorce by mutual consent to be granted a swift divorce. It will help prevent the retractions, lies, etc. which happens in case of long delays." Justice Krishna Iyer observed that when the marriage breaks down completely and there is no possibility of any return the only remedy left is a divorce – and nothing else. To quote his own words:

“While there is no rose but has a thorn, if what you hold, and no rose, better to throw it away”.
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[1] Available at http://www.ourkarnataka.com/Articles/law/irretri.htm
[2] [(1993) 4 SCC 232]
[3] Smiriti Shinde case Available at http://feministmedia.wordpress.com/2009/12/17/double-standards-of-the-supreme-court/
[4] Smita Dilip Rane v. Dilip Dattaram Rane (AIR1990 Bom.84)
[5] Available at http://www.sherrylegal.com/articles/7/hindu marriage law amendment bill 2010.pdf[6] ibid
[7] Available at http://www.sherrylegal.com/articles/7/hindu marriage law amendment bill 2010.pdf
[8] Comissionaer of Police V. Acharya Jagdish Verdhan (2004) 12 SCC 770
[9] Ratilal Panchanan Gandhi V. State of Bombay ( 1954 ) SCR 1055
[10] See JDM Derrett ‘Divorce by caste custom’, in (1963) 65 Bombay Law Reporter, Journal section, pp 161-169. Nuala Mole Immigration: Family Entry and Settlement (Bristol, Jordan & Sons, 1987, esp pp 39-44).
[11] 2006(3) SCALE 252
[12] (AIR1990 Bom.84)
[13] [1 (1999) DMC311(MP)]
[14] (AIR1994 SC710)
[15] (AIR2001 Ori.151)
[16] (AIR2001 Cal.154)

The  author can be reached at: anooja1019@legalserviceindia.com

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