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Published: Fri, 02 Feb 2018

“Divorce under Hindu law”

Whether an amendment of Section 13 of the Hindu Marriage Act, 1955 is required in order to include irretrievable breakdown of marriage as a ground for divorce?

Abstract

This paper discusses the origin, current usage and future prospects of irretrievable breakdown of marriage as a ground for divorce under Hindu Law .It is interesting to note that the leading scholars of Family Law and distinguished Jurists of the Supreme Court have always been in support of the non-inclusion of irretrievable breakdown of marriage as a ground for divorce. The opinions of the Supreme Court have been changing time and again. This paper attempts to analyze the reasons for these changes and transitions. In this paper, the author rewinds a bit and goes back to the very idea of marriage, the origin, changes owing to the influence of English Law on the divorce laws, finally reaching the much debated topic of irretrievable breakdown of marriage. . The author in the course of this paper has extensively argued that there is no reason for the non inclusion of irretrievable breakdown of marriage as a ground for divorce under Hindu Law. Thus, supporting the idea of the amendment of the Hindu Marriage Act, 1955 for the inclusion of irretrievable breakdown of marriage as a ground for divorce.Also, suggesting to do away with the Act in the long run by the adoption of a Uniform Civil Code.

“While the stream of life, lived in marital mutality, may wash away smaller pebbles, what is to happen if instrangient compatability of minds break up the flow of stream itself. Thus, its crystal clear that when the relationship is not going good unnecessary maintained on papers where the feelings of trust, love doesnot exist and no scope of recovery of relationship is there it is better to end the relationship, incompatability is often a major reason for unhappiness . When friends can end their relationship then why not couples”. [1] This was elucidated by Justice Krishna Iyer in his Judgment in Aboobacker v. Manu.

The debate regarding the inclusion of irretrievable breakdown of marriage as a ground for divorce has been going on for many years in India. Many scholars, Law commission and the Supreme Court judgments have time and again suggested it’s inclusion as a ground for divorce.Untill recently no concrete steps were taken in this direction. However, lately the Indian Government has taken a major leap in this direction. The suggestion for the inclusion of irretrievable breakdown of marriage as a ground for divorce (The Marriage Laws (amendment) Bill,2010.) has been approved by the Union Cabinet chaired by P.M Manmohan Singh , it is currently with the Parliament for further approval. [2] If the parliament passes it, this will be no less than a revolution affecting a large population of India as in India 80 per cent of the people living are Hindus.

To understand the concept of irretrievable breakdown of marriage as a ground for divorce and its effects on the family life in India one has to have a good sense of the importance and the value attached to the institution of marriage in India. This has to be followed up by a discussion about the changes in divorce laws in India. As how a state legal system handles one of these areas of law leaves the other area highly influenced and affected. [3] On the onset of our discussion on Hindu marriage laws in India it is important to note that reformers were always reluctant to bring about change in the area as Marriage Hindu Law as it remains an uneasy coexistence of reformist rhetoric and sociocultural realism. [4] According to J.D.M Derrett marriage is a status fulfilling a contract. [5] He further makes it clear that the intention of this sacrament is to make the husband and wife one, physically for secular and spiritual purposes, for this life and for after lives. [6] Hindu civilization being a Vedic civilization dates back to 4000 B.C. Thus one of the oldest civilizations known to mankind. The Vedas refer to marriage as a samskara [7] under Hindu Law. [8] The Vedas glorify marriage. [9] This establishes two things. First that the bond of marriage has existed from time immemorial .Second, over the centuries changes have occurred in this concept of marriage. Manu [10] in the Manusmriti [11] regards the bond of marriage as “Let mutual fidelity continue until death, this may be considered as the summary of the highest law for husband and wife”. [12] Several words were employed in Ancient India to denote the idea of marriage.The essence of marriage can be captured from the following description. Words like the udvaha, i.e., taking the girl out of her paternal home, vivaha, i.e., taking the girl for a special purpose,i.e.,for making her one’s wife ,parinayair parinayana,i.e., going round or making a pradaksina to fire,upayama,i.e.,to bring near and make one’s own ,and panigrahana,i.e.,taking the hand of the girl,are employed to convey the sense of marriage. [13] The studies confirm that marriage is the most important of all the Hindu Samskaras or life cycle rituals. [14] There was a consensus between the legal scholars and that marriage is an indissoluble union in Ancient Hindu Law. [15] With the advent of Hindu Marriage Act, 1955 (hereinafter the HMA) all the eight forms of marriages were dissolved and it gave marriage a status of a contract along with it being regarded as a sacrament.It provides for the nullity of marriage,judicial separation and divorce. This has been taken from the English Law. [16] The fair trial rule has also been incporporated from the English Law. [17] However, there has been a funadamental departure from the alimony law as in English Law. [18] This was considered necessary in changing times with changing conditions. The HMA solved two major problems of marriage laws. [19] “It played a role in solving the problem of bigamy and changing the status of marriage from it being regarded as an indissoluble union in the Vedas to becoming legally dissoluble in the 20th century. [20] Sadly, the HMA is regarded as an odd compostion of the old and the new, leaving the courts and the scholars all the more confused with regard to the essential “sastric” ceremonies which need to be performed and the definition of marriage. Different Hindus in different parts of India perform various ceremonies. Most importantly, this act made Indians familiar with the concept of divorce”. [21] 

Our ancient Hindu scriptures have no mention of the word divorce whatsoever. Divorce is a word of Roman origin from dis-apart and verter-to turn but this word gives a meaning full of suspense as to whether it signifies the separation between a man and a woman permanently or temporarily. [22] Divorce is regarded as the formal separation between a man and a wife by act of one party or by consent according to established custom. [23] It is a judicial act by which the marriage relation is either dissolved or partially suspended. [24] 

The changes in divorce laws governing the Hindus can be broadly divided into three phases. The first phase is the one in which divorce was granted only under compelling circumstances, graduating to the second phase where divorce was available on demand and finally coming to the third and present phase where divorce is granted under an additional and a more popular ground of divorce, the ground being irretrievable breakdown of marriage or a point of no return for the spouses which were intending at one point of time during the solemnization of their marriage. [25] Divorce under Sastric law coupled with the recognition of divorce under customary law constitute the first phase of divorce laws under Hindu Law. The phase where divorce was only given under compelling circumstances.

For the purposes of this phase let’s categorize divorce laws concerning the Hindus under three separate headings; Divorce and sastric Law, Divorce and Customary Law, Divorce and Hindu Marriage Act, 1955.Though Words such as ‘abandonment’, ‘supersession’ and ‘remarriage’ were used in various Hindu scriptures like the Smritis by the divine sages, learned and versatile scholars. [26] Abandoment or tyaga denotes separation from conjugal intercourse whereas supersession means termination of marriage itself. [27] There is absolutely no refrence to divorce [28] in Vedic text or post-vedic literature. [29] This has been stressed judicially in the cases of Kudomee v. Joteeram.The reason for no mention of divorce was that the Ancient Hindu Law derived its legal inspiration from the Manu-Smrti (the code introduced by Manu.) .Manu’s (it has been said that whatever Manu says is medicine, there have been mentions of Manu even in Vedas.) view on marriage can be inferred from one of his verses which is “Let mutual fidelity continue until death, this may be considered as the summary of the highest law by husband and wife”. [30] Also, Hindu Marriage is a sacrament and its object is progeny and performance of religious duty. [31] In the case of Govt of Bombay v. Ganga [32] it was decided by the Indian courts that mere change of faith by a Hindu wife or Husband doesn’t ipso facto dissolve the marriage. Although there is a provision of a second wife under compelling circumstances but there is no provision of divorce whatsoever contrary to the provisions of Modern Law. [33] All in all, when we talk about divorce and sastric law there seems to be unanimity between the Law-givers and the Scholars that Divorce was not known in ancient times. [34] 

Having said all the above the ancient Hindu Law did recognize Customary divorce. A custom is a particular rule that has existed either actually or presumptively from time immemorial, and has obtained the force of law in a particular locality although contrary or not consistent with the general common law of the realm. [35] Whatever prevails amongst a set of people as a result of their consensus of opinion and approval is custom. [36] It grows by conduct from practices adopted for the convenience of the society and the individual. [37] In Hupurshad v. Sheo Dyal custom was defined as a rule in a particular family or a particular district which from a long usage obtained the force of law. [38] In Neelkisto Deb v. Beerchunder [39] it was said that wherever custom is in derogation of smriti law the former will supersede the latter.The prevalence of customary divorce under Hindu Law can be dated back to a decision as early as 1873. In the case of Khemkhor v.Umiashankar [40] the question at hand was that whether a sompura brahmana woman who has contracted a marriage with a man of that caste, during the lifetime of her husband and without his consent is entitled to maintenance? It was held that though remarriages or natras are allowed among them in the absence of the consent of her husband second marriage is not valid as per the customs of her caste. [41] In the case of Sundor v. Nihala [42] it was held that a woman belonging to the Jats of the district of Sialkot was free to contract second marriage on receiving a written divorce from her husband. [43] This was a valid custom amongst the Jats of Sialkot and thus had prominence over law.Though the British remained largely away from making any amendments in marriage laws governing the Hindus It did pass some legislations to empower women an example being the Sati Regulation Act of 1829.However, it was later found out that these were largely biased in the favour of upper class men and most of the customs which were crushed were actually in the favour of women. [44] Making it clear that the British weren’t interested in actual welfare but were concerned with increasing their power and position in India, this being the ulterior motive of such reforms. [45] 

With the introduction of the Hindu Marriage Act, 1955 which is based on archaic English principles [46] , we entered the second phase of changes in divorce laws in India.This act was passed after the Hindu Married women Right to Separate Maintenance and Residence Act, 1946 which allowed a Hindu wife to separate from her husband on the ground of his marrying again. [47] This act formed the ground for HMA.This was one of the few reforms introduced by the British in divorce laws in India , during the latter part of the British Rule. With regard to HMA the Introduction of section 13 is not less than a revolution in Hindu Law. “The object of this act is to protect and preserve a Hindu marriage, rather than allow it to disintegrate .Severence of marriage is allowed only on substantial grounds. Right to divorce is a statutory right subject to any right recognized by custom”. [48] On a careful analysis of Section 13 of the Hindu Marriage Act, 1955 one can easily figure out that there are fifteen grounds on which a divorce can be obtained. Nine of these grounds are based on the ‘fault liability theory’, two grounds are based on breakdown theory and four grounds which are special and can be availed off by a wife only. [49] Cruelty comes under guilt or offense theory. The HMA,1955, divorce was based only on fault theory. [50] However with subsequent amendments the breakdown theory and the consent theory were incorporated as grounds for divorce.The breakdown theory was added in 1970, whereas the consent theory was added by an amendment made in 1976 by the Marriage Laws (amendment) Act of 1976.These amendments were made to include more grounds for divorce , to free Hindu women in particular from the yoke of unwanted marriages. [51] This second phase can be divided into two parts depending on the attitude of the Supreme Court in granting divorces during this time. The period where divorce was almost available on demand(1970’s and early 1980’s) and the period where getting a divorce wasn’t easy.The courts were quite liberal in granting a divorce during the 1970’s and the 1980’s. [52] This however proved to be detrimental to the woman and children. As more men divorced women during this time as compared to the women wanting a divorce. [53] This was predicted by Derrett in the 1970’s.However, since 1976 the courts have become stricter while granting divorce as they realized that liberalization of divorce was ruining the Indian society. This change in attitude is evident from the fact that the Marriage Law Bills of 1981 was a complete failure. [54] Britishers stayed away from reforming divorce laws regarding Hindus as after the case of Rukmanibhai they realized the sensitiveness of this issue and took a stand to stay away from engaging in such reforms regarding personal laws in general and personal laws concerning the Hindus more specifically. [55] Thus no divorce reforms were made under the British leadership.

What is irretrievable breakdown of marriage? How did it come into existence in Hindu Law? What role did English Law play? “A marriage is a union of husband and wife for the whole of life, but it may so happen that that their relations might be strained and they would like to live away from each other. It is to be remembered owing to their sexual relations, interdependence and social censure it is difficult for them to live without each other for a long time. Therefore, there must be some stronger reason for them to live apart and get divorced. There should be complete absence of emotional attachment between them and they must develop intense hatred and acrimony against each other, so much so that there is only in name, a dead one or only a shell sans substance. It is now beyond the hope of salvage. It is therefore an irretrievable breakdown of marriage. Where a marriage has ceased to exist both in substance and in reality, divorce should be seen as a solution and an escape route out of a difficult situation.” [56] This ground for divorce originated in New Zealand under the Divorce and Matrimonial amendment Act, 1920.Prior to this divorce was granted by Ecclesiastical Courts granted divorce based on the ground of adultery and permitted the parties to marry again. [57] In England, divorce wasn’t accepted very easily in the 1950’s. [58] Then came the Divorce Act of 1969 which recognized irretrievable breakdown of marriage being the only ground for divorce. [59] It was stated in Santos v. Santos [60] that this legislation actually made the getting of divorce difficult rather than eaiser.This was preceeded by a decision Blunt v. Blunt were the four essentials of a matrimony were recognized by the English courts. [61] In England, irretrievable breakdown of marriage was made a ground for divorce in the year 1973, by the amendment of the Divorce Law Reforms Act, 1973 The leading case in this matter is Masarati v. Masarati [62] . In this case both the parties committed adultery and the court of appeals granted divorce on the grounds of irretrievable breakdown of marriage on the wife’s petition [63] .This also indicates that the English courts didn’t stress on reconciliation. . [64] Today, in England you can divorce someone if you have been married for atleat a year. [65] There is only one basic ground for divorce, irretrievable breakdown of marriage. [66] You can establish that the marriage has broken irretrievably by proving any of the following grounds,the grounds being adultery, unreasonable behaviour,desertion,three years separation with consent, five years separation with consent. [67] Contrary , to the English courts, the Indian Courts generally were keen and continue to be so to save a marriage at all costs and only when all options were exhausted , divorce was granted under this ground. [68] The Indian legislation moved very cautiously when it came to reforms under divorce based on the fact that during the 1950’s divorce wasn’t accepted easily in England as well which was the guiding model for reformers that time. [69] The Jordens case [70] was the first case in India where the SC advocated that irretrievable breakdown of marriage must be added as a ground for divorce, but no serious steps were taken [71] . In the case of Kalidas (Ghosh) v. Ashish Kumar Das case [72] , the court noted the ingredients of such a marriage (1) both the parties equally induldge in cruel behaviour, physical or mental against each other. (2) It is impossible for the court to come to any definite conclusion about the role of responsibility of one particular spouse in creating and sustaining the bitterness. (3) Marital relationship is emotionally dead and neither of the spouses genuinely want to live with the other spouse. [73] Some theorists are in support of this theory. However another revisor of the Moden Hindu law points out first two grounds are not conclusive, the third ground must be present, which is that matrimony must be dead. [74] 

This theory is suggested by the SC and the Law Commision. “The 71st Law Commission Report released on April 7th , 1978 strongly suggested the inclusion of irretrievable breakdown of marriage as a ground for divorce. “The essence of the report was that what can’t be repaired should not be attempted to be repaired. As this would result only in greater misery and would certainly not be in the interest of justice. Keeping in mind that adequate financial arrangements are made for the woman and children. Decisions were given hiding behind the ground of cruelty when actually it was irretrievable breakdown of marriage.” [75] 

Crulety has often been used as a proxy for irretrievable breakdown of marriage in the Indian Courts.Cruelty is a ground for divorce [76] under section 13-1(I -a) of the Hindu Marriage Act, 1955. The meaning of this word is not explained in the act. The meaning of cruelty was explained in the Shoba Rani case [77] .It was said that cruelty is a course of conduct of one which is adversely affecting the other. It may be mental or physical, intentional or unintentional.If it’s physical then it is question of fact and degree. To the contrary if it’s mental then the inquiry must begin as to the nature of the cruel treatment and then the impact of such treatment on the mind of the spouse.It was also stated that intention is not a necessary element in cruelty and relief can’t be be denied to the party on this ground. [78] In the case of Dastane v. Dastane [79] it was said that danger to life limb or health or a reasonable apprehension of it is a higher reqirement than reasonable apprehension that it is harmful for one spouse to live with the other.Five tests for cruelty were also enumerated in this case by Justice Vadiya. [80] Some of the instances of cruelty against the husband are; insulting and mentally torturing the husband, refusing to cohabit with hm, lodging complaints against him. [81] , becoming pregnant through some person other than the husband. [82] Some of the instances of cruelty against wife are continuous demand of dowry [83] , illtreating her to such an extent so as to force her to commit suicide. [84] However, it is important to note that demand for dowry itself doesn’t amount to cruelty, there should be persistent demand for dowry for it to amount to cruelty. [85] In Vinita Saxena v. Pankaj Pandey, the husband and wife were living separately for a period of 13 years.There marriage lasted only for 5 months. The trial court rejected the decree of divorce made by Vinita Saxena who filed a petition on the grounds of cruelty. The supreme court later granted divorce on the grounds of mental cruelty saying that “As to what constitute the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home”. [86] 

It was also argued by many that divorce by mutual consent was a step forward and it remedied the problem to a large extent, thus having no need for irretrievable breakdown of marriage as a ground for divorce. Mutual consent was included as an additional ground for divorce under section 13-B, by an amendment made in 1976. Here both the parties make a joint petition to the court to divorce each other.They genuinely desire to part ways with each other and agree to do th


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