"Irretrievable Breakdown of marriage" as a ground for Grant Of Divorce Under Section 13(c)
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A petition for divorce, if filed on mutual consent to the family court by both the spouses to a marriage under section 13 (B) of Hindu Marriage Act, 1955, divorce is granted after a cooling period of six months. If however, one of the spouses files petition for divorce under section 13 (1) (ia) of HMA, 1955 under fault ground and the other contests it, the trial should be concluded within six months from the date of service of notice of the petition on the respondent under section 21 – (B) (2) of HMA, 1955 and every appeal shall be heard and concluded within three months from the date of service of notice of appeal on the respondent under section – 21 (B)(3). So the act intends that a contested divorce case should take maximum one year for disposal i.e. six months in trial court level and three months each at high court and Supreme Court levels on appeal.
But not a single case appears to have been disposed of in India within one year after passing through all the three levels of courts since insertion of the section in 1976 as no such data are available in any website of internet (google).
So, the amendment made under section – 21 B of Hindu Marriage Act, 1955 in 1976 for prompt disposal of divorce cases i.e. within a period of one year is practically ineffective. There may be numerous causes for non-disposal of the cases in time but the causes do not give relief to the tortured spouses nor allow them to remarry without divorce.
The words used in the section -21B are in line with the directive principles of state policy meant to achieve social goals rather than the force of an act attracting penalty provision for violation of the act against the erring official in the event of delay in disposal and it is for obvious reasons.
It is an admitted fact that an Act passed in the legislature is a commitment of the state to its citizens. So, when the state fails to abide by the commitment by granting divorce in time i.e. within one year of filing of contested divorce petition, then why one should be penalized if he/she remarries without divorce after one year of filing of divorce petition. Further, if divorce can’t be granted within the above said period of one year, then why the amendment under Section 21-B for that purpose, was inserted in 1976. If we read between the lines of Section 21-B, we will understand that the law-makers didn’t want to spoil the lives of spouses in the litigation for a period beyond one year, in the name of preserving and protecting the institution of marriage.
Now-a-days in violation to above provision of the act if a contested divorce case passes through all the three levels of courts, it takes decades for disposal. A bright example of such a case is civil appeal no. 3253 of 2008 of Supreme Court of India, which was filed in Bangalore in 1995 in the family court and finally disposed of by the Hon’ble Supreme Court on dt 6.10.2016 and so the case took 21 years for disposal. The prime period of the life of the plaintiff Sri Narendra in the case was spoiled as his human rights to marry and found family enshrined in Art - 16 of Universal Declaration of Human Rights, 1948 (United Nation Charter) was violated for long 21 years for want of grant of divorce. It may not be a lone case. There are thousands of divorce cases pending in different courts in India for years together spoiling the lives of petitioners and respondents deserving immediate attention of the Government for solution to their problems by amendment to the Hindu Marriage Act,1955 as suggested in following paragraphs.
It is only in India that the contested divorce cases take so many years for disposal after passing through the three levels of courts.
Such inordinate delay in disposal of divorce cases spreads a message and lesson for the unmarried man/women as to why should they marry and then why should they face torture not only from the spouse in the event of incompatibility but also from the complex judicial procedure during the trial of contested divorce case filed to be free from the bad marriage.
It is because of the ineffective divorce laws of HMA 1955, that young men and women have started hating marriage and prefer live-in-relationship to marriage. Such a relationship though socially unacceptable is not illegal if the parties are adult as ruled by Hon’ble Supreme Court of India in some cases. The advantages of such relationship is that in case of serious and bitter relationship, they will not have to go to the court of law for divorce and fight the case for years resulting in their tremendous mental torture and financial exploitation.
If couples engage themselves in constant fighting even on petty matters and do not do their duty and obligations towards each other and family and if all counseling for their reconciliation fails, the marriage can be said to have broken down irretrievably. The only best option available after irretrievable break down of marriage is divorce on mutual consent under section 13(B) of HMA 1955.But if one spouse wants divorce on fault ground under section – 13 (1) (i a) of HMA, 1955 and the other contests it, the case involves a lot of legal procedure and turns into a war of guilt in the court room and it becomes a mammoth task for the petitioner to prove the guilt of the other spouse and so it takes years for disposal. The contesting spouse fails to understand that by contesting a divorce case he/she is also spoiling his/her life and losing the case and whereas only the lawyers gain.
It is very important to mention here that during the course of proceedings of a contested divorce case, both the spouses and their families pass through tremendous mental torture and loss of time, money and energy in pursuing their cases. After years of legal battle, even if the petitioner loses and divorce is not granted, the petitioner can’t be forced to allow the contestant to live with him/her. Consequently the entire legal proceeding for years, become a futile exercise. So, why should the divorce be not granted immediately after failure of counselling?
After realizing the real problem of delay in disposal of contested divorce cases on fault ground, almost all developed and advanced countries in the world have either replaced the fault grounds by no-fault ground or added no fault ground on irretrievable break down of marriage to the existing fault ground. For example, by 1989, in twenty American states, divorce was available solely on no fault ground and in thirty others the legislatures added at least one no fault ground for divorce as an alternative to fault grounds. In European Countries , the irretrievable break down of marriage have been widely accepted explicitly or implicitly and the general characteristics of this ground for divorce is that it is a no fault ground for divorce and that insistence on the spouses’ faultless behavior has been abandoned.
The modern concept of family law adopted by almost all advanced countries lays down that to get a divorce it is sufficient that one of the spouses decides not to live together with the other spouse any more. It is prescribed that any spouse has the right to divorce if the marital relations are seriously and permanently disturbed or if the marital cohabitation objectively could not be expected. Divorce proceedings are urgent if spouses have a child and shall be ended at most in two hearings. The essential concern of the court should be to ensure the best interest of the child. The mediation is provided as a part of divorce proceedings, but it is not compulsory.
The modern concept of family law also lays down that everyone has the right to decide freely on entering or dissolving marriage. It is up to the spouses to keep their marriage sound, vital and functional and not up to the state to prevent divorce when one or both of them wish for divorce. The emphasis should not be put on how to prevent divorce but how to ensure a better functioning of marriage despite all challenges and temptations of modern life.
Further it is contrary to human nature to force someone to stay with some person for the whole life, even if it is obvious that the marriage is a failure, that it is irretrievably destroyed and that the spouses have been living separately for a long time. Besides, it is not in accordance with the theory of human rights, because the concept of indissolubility of marriage leads to creation of ”dead marriages” or “empty shell” which is not in the interest of either of the spouses.
Almost all developed and advanced countries have adopted the above modern concept of marriage and divorce law and accordingly amended their divorce law and stipulated that if the spouses lived separately at least for one year, it is treated as irretrievable break down of marriage which is a sufficient ground for grant of divorce on filing of petition by anyone of the spouses. Some countries follow still liberal divorce laws: For example in Ukraine, marriage is a free will of spouses and no one may be forced to stay married with someone against his/her will. So standard divorce procedure takes about only one to three months. Similarly in Hungary, divorce is granted on irretrievable breakdown of marriage and no separation period or age of marriage are conditions for grant of divorce. In Denmark, a person who does not wish to remain in his or her marriage, always has the right to divorce, regardless of the wishes of the other spouse. After a separation period of six months the spouses have the right to divorce even if one spouse disagrees. In Gibraltar, application for divorce is dealt with by the Supreme Court only unlike the three levels of courts of India, thereby reducing the time taken for divorce.
Incompatibility or irretrievable breakdown of marriage is a great crisis of the world today. Many countries of the world have risen to the occasion and amended their divorce laws by a gender neutral and rational approach and abolished divorce on fault ground as they considered it as a faulty ground. So now it is high time for India to consult the divorce laws of all such nations for necessary amendment to HMA, 1955 by inserting the ground of “irretrievable breakdown of marriage” under section -13 C. The bill Introduced for such amendment after recommendations of the Supreme Court in the divorce case of Nilu Kohli vs Navin Kohli in 2006 though passed in Rajya Sabha in 2013 was faced with strong opposition from some organizations because of certain contentious clauses in the bill. Consequently the bill lapsed because of dissolution of 15th Lok-Sabha in the year 2014. Thereafter, it appears that no progress has been made in this direction.
It is very important to note that on dt/- 24/08/2017 the Supreme Court of India ruled that right to privacy is intrinsic to right to life under Article-21 of the Constitution of India. In our view, the above right to life also implicitly gives right to divorce, because the spouses who have strained and bitter relations, if forced to stay together, their life and liberty will be in danger as violation of human rights may take place at any time. Such problems of irretrievable break down of marriage could be solved by grant of divorce so that each spouse will get a chance for a fresh beginning in life.
Under the provisions of existing HMA,1955 in respect of section 13 (1) (ia) i.e. divorce on fault ground for grant of divorce, the judge in some cases orders for payment of huge amount of alimony to the un employed spouse along with child support which becomes impossible for the other spouse to carry out the order of the court. After being tortured by the spouse, one goes to court for freedom from torture by divorce, faces still worse and longer period of torture by existing judicial procedure and still worse, torture by the order of court for payment of huge amount of alimony which is beyond his/her capacity to pay. Knowing all these, a Hindu man/woman either tolerates the torture of his/her spouse or think it better to stay separately from the spouse without going to the court for divorce thereby resulting in creation of “dead marriage”. Such huge amount of alimony is arbitrary and irrational in absence of any such stipulation in pre-nuptial agreement, like mehr in Nikahnama of Muslims. It may be noted that such pre-nuptial agreement is not recognized under HMA, 1955. However, a rational approach to deal with such problem is urgently needed. In many countries, as per such rational approach, 20% of one’s monthly income is considered enough for maintenance of spouse and maintenance for 5years is considered permanent alimony amount to be given to the unemployed spouse. The five years’ time period is considered enough for the unemployed spouse to get a job for his/her subsistence or get remarried. The same rational approach may be followed in India also.
Further , if we go through the divorce laws of different countries, we find that in the event of divorce of spouses, the properties acquired only after marriage are divided equally between the spouses and the properties acquired before marriage and after separation are not subject to division between them which is quite rational and realistic and gender neutral. But the proposal made in the draft amendment bill for divorce on irretrievable breakdown of marriage containing a condition that properties to be acquired on succession in future by the husband will also be subject to equal division for the divorced wife, is not only irrational but also gender biased as after the year 2005, every daughter has equal right on her paternal property like sons after amendment to Hindu Succession Act. So while amending HMA, 1955, for grant of divorce on irretrievable breakdown of marriage, such an irrational condition should be deleted.
It is interesting to note that the English marriage and divorce law which India consulted while drafting HMA, 1955, has already been amended laying down only one ground for divorce i.e. irretrievable breakdown of marriage since 1973. But we still follow their old divorce law.
Therefore, we need to consider the facts cited above in the light of modern divorce laws of advanced countries and bring it to the notice of the Govt. of India in the Ministry of Law and Justice, Chairman, Law Commission of India and Prime Minister of India to take necessary steps for amendment to the HMA, 1955 by inserting a no-fault ground on irretrievable breakdown of marriage under Section 13 (c) after separation of spouses for a period of one year and oblige.
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