Marriage in our society is considered as a societal obligation where a young man and a young woman is tied to through each other till death makes them apart. It is a sacred ceremony that has taken place since time immemorial where both the partners take responsibility of each other in order to carry forward the next generation. Every religion has its own rules and regulation for performing it.
However, not all marriage which is being performed ceased to exist for a lifetime period and a point comes where they cannot survive together. The essence of marriage has evolved from time to time and now it not only includes carrying a generation forward but it also includes the exchange of emotions, having a good level of understanding and also a good relationship not only between the man and the woman but also between the families of each other.
Under which Act Hindu marriage is governed?
In India, the laws of marriage are governed as per religion. The Hindu Marriage Act, 1955 is for Hindus which includes Sikhs, Buddhists, Jainexpect Muslims, Christian, Parsi or Jews. As per section 8 of the Act, a marriage has to be registered in the court of law which will act as evidence that a marriage is being performed between the parties.
How can a party contest for divorce?
When the relation between the parties is sored they sought for ending their relationship. In such a situation, parties can contest for separation as per section 10 or for divorce as per section 13 of the Hindu Marriage Act, 1955[i]. The difference between the two is that when a party file a plea for separation the marriage between them does not end but they don’t have to live together for a specified period of time. On the passing of a decree by the court, either party can contest for ending the separation period, they can then again live together after it.
However, in case of filing a plea for divorce in the court of law as per section 13 of the Act, the marriage ends legally after proving that either of the partners is not fit for being in the marriage. As per section 13(1) of the Hindu Marriage Act, 1955, either party can contest for divorce on the following grounds:
- Adultery: When the husband or wife is involved physically out of marriage with other men or women.
- Cruelty:When the petitioner is being harassed mentally or physically.
- Desertion:When the spouse desert the partner of a continuous period of 2 years.
- Conversion:When the partner through conversion to another religion ceased to be a Hindu.
- Unsound Mind:When it is found that the spouse is suffering from an incurable unsound mind or from a mental disorder.
- Disease:When the respondent has been diagnosed with an incurable form of leprosy or has venereal disease in a communicable form.
- Presumption of Death:When a person who is married but had not been seen alive or heard for a continuous period of 7 years or more.
- No resumption: On the filing of a decree for discontinuous separation or conjugal right but not resuming the relationship for a period of one year.
However, as per section 13(2) of the Act, there are more grounds available for a woman to file for divorce. They are as follows:
- Married Husband: Before the enactment of the Hindu Marriage Act, 1955, the husband is already married or the husband already had a living wife.
- Guilty of rape:When after the performance of marriage, the respondent is found to be guilty of rape, sodomy or bestially.
- No- resumption of cohabitation: When a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 or a proceeding under section 125 of CrPC, 1898, a decree for maintenance has been passed but the cohabitation has not been resumed for a year or more.
- Minor: When she was married before attaining the age of 18 years.
A man and a woman can contest for divorce under these grounds as per section 13 of the Hindu Marriage Act, 1955 and under section 27 of the Special Marriage Act, 1954. However, the irretrievable breakdown of marriage does not fall under these acts as a ground of marriage.
What is the meaning of an irretrievable breakdown of marriage?
When the bond between the man and the woman cannot be established and a situation arises where both cannot bear each other sight in such situations the husband and the wife cannot contest for divorce as per section 13 of the Hindu Marriage Act, 1955. As for contesting for divorce the above grounds has to be fulfilled.
However, with recent development in the society the Supreme Court has taken suomotoand under Article 142 of the Constitution of India has granted divorce to such couples where there is no hope for rebuilding the relationship between them. In Naveen Kohli v. Neelu Kohli (AIR 2006 SC 1675,) case the Supreme Court has suggested the Union of India for incorporating irretrievable breakdown of marriage as a ground for divorce by bringing amendment in the Hindu Marriage Act, 1955[ii].
The 71st report of the Law Commission of India and the 217th Report of the Law Commission of India[iii] examined the irretrievable breakdown of marriage as a ground for divorce and also what financial arrangements should be made for wife and the child. In Ram Kali vs. Gopal Das AIR 4 (1968) DLT 503 the court has also observed that “it would be an inhumane treatment to the bond of marriage if the husband and wife are compelled to stay together if the rift between them is widening.”
The SC also in the recent judgment granted divorce on the ground of irretrievable breakdown of marriage and observed that[iv] “This court, in a series of judgments, has exercised its inherent powers under Article 142 of the Constitution for dissolution of a marriage where the court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted”.
What are the rights of the child if a marriage is dissolved on the ground of an irretrievable breakdown of marriage?
When a marriage is dissolved on the grounds that are given in section 13 of the Hindu Marriage Act, 1955 and under section 27 of the Special Marriage Act, the court on such dissolution as per section 26 of the Hindu Marriage Act, 1955, the children can seek maintenance from father.
The one who also suffers the most by such an act of the husband and the wife are the children who have to make a choice between the mother and the father and this process of attaining custody is very consuming for the child. In Saumitra Kumar Nahar v. Parul Nahar, CIVIL APPEAL NO(S).1670 OF 2020 case, the Supreme Court further stated that[v]:
“The rights of the child need to be respected as he/she is entitled to the love of both the parents. Even if there is a breakdown of the marriage, it does not signify the end of parental responsibility. It is the child who suffers the most in a matrimonial dispute.”
It is the recent case, where the minor children of the respondent and the defendant have suffered and court, in order to preserve the rights of the child, has arranged boarding school and the mother and the father were allowed to file a separate custody plea. However, if grandparents are present they can take care of the children.
There is still no amendment in the Act of the Hindu Marriage Act, 1955 for adding an irretrievable breakdown of marriage as a ground of divorce in section 13. The court takes suomoto under article 142 of the constitution in cases where there is no hope for sustaining or rebuilding the foundation of marriage by granting the divorce.
“The views of the authors are personal“