Bending it like Shinde!
People who have seen the news coverage on Cabinet approval of adding 'irretrievable breakdown of marriage' as a ground for divorce in Hindu Marriage Act, 1955 and Special Marriage Act, 1954 are a confused lot. What does it mean? When can a person file a petition for divorce on this ground? How can relief be sought? These are some of the questions I have been searching the answers for.
Legally speaking, “irretrievable breakdown of marriage” is defined as: “The situation that exists when either or both spouses are no longer able or willing to live with each other, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties.”
In this direction, the Law Commission, in its Seventy First Report which was submitted in April, 1978, strongly recommended to introduce irretrievable breakdown of marriage as a ground for divorce. This was in addition to the already available grounds of divorce - ground of fault and mutual consent. The wisdom behind such an amendment, as contemplated was, when a party to the marriage is not at fault, falling in the subsection, nor staying together and further frustrating the other party's efforts to come to a mutual agreeable terms to end the marriage, a divorce on this ground can be sought. The said report recommended detailed guidelines by way of introduction of sections 13 (C), 13 (D), 13 (E) in the Hindu Marriage Act, 1955 and necessary amendments in section 21 (A) and 23 as well. The idea behind the same was that once a divorce is sought on the grounds of irretrievable breakdown of marriage, other conditions like fault of one party be regarded as irrelevant.
In 1981, a Bill was introduced to give effect to irretrievable breakdown of marriage as a ground for divorce, but the legislature in its wisdom did not accept the same, as it was apprehended that unscrupulous people, mainly husbands would desert their wives and take advantage of this provision. A point to be noted here is that section 13 (D) and 13 (E) as contemplated by Law Commission made it clear that a wife can oppose such a petition on the ground that it would result in financial hardship for her, and it made it binding on the court to see that adequate arrangement for welfare of children and wife be made while a decree of divorce be granted on this ground. Despite the same the legislature did not find fit to accept the report and the same was rejected.
The social fabric of India has undergone a lot of changes during the last Thirty Two years. And from time to time the courts have refused to grant divorce on this ground in the cases of Asha v. Krishna Lal (1990 Del.1), Smita Dilip Rane v. Dilip Dattaram Rane (AIR1990 Bom.84), Suresh Prasad Sharma v. Rambai Sharma [1 (1999) DMC311(MP)]. On the contrary, the apex court has dissolved the marriage on this ground in V. Bhagat v. D v. Bhagat (AIR1994 SC710), Chandralekha Trivedi v. S.P. Trivedi [(1993) 4 SCC 232], Naveen Kohli v. Neelu Kohli [2006(3) SCALE 252]. The case of Naveen Kohli Vs Neelu Kohli is of great importance because by way of this Judgement, the Hon'ble Supreme Court had recommended an amendment in the Hindu Marriage Act, 1955 stating that there can be a great number of cases, where the marriage is virtually dead but parties can not seek divorce on the ground of irretrievable breakdown of marriage as such a ground does not exist in Hindu Marriage Act.
As in the case of recommendation of Law Commission of 1978, this suggestion also fell on deaf ears and despite Law Commission again recommending the same in it's 217th report in March 2009, no progress took place until recently.
It all changed on Dec. 16, 2009, when Smriti Shinde, the daughter of indomitable Union Power Minister Sushil Kumat Shinde, challanged the existing grounds of divorce in Hindu Marriage Act, 1955 by way of Writ Petition. Brief facts leading to this writ are that she had filed a case along with her husband for dissolving their marriage by way of mutual consent in May 2007 and was granted divorce even when the husband never turned up before the trial court. The Bombay High Court set the same decree aside holding that non-appearance of the husband showed that his consent did not continue. The Supreme Court also held the same view and dismissed her appeal. A news report published in newspapers on the next day stated that another powerful political face Supriya Sule was also present at the time of filing this petition, which can be construed as the support of Agriculture Minister Sharad Pawar in the same.
Cut to present, barely a year after the Government of India deciding against the recommendation of 217th report of Law Commission, the cabinet has given nod to the changes in provisions in Hindu Marriage Act, 1955. The way in which the same would be implemented is still not sure, but what Information and Broadcasting Minister Ambika Soni stated to the media about this law raises some questions, the verbatim quote as printed in media states, “This would provide safeguards to parties who file petitions for grant of divorce by mutual consent but who wilfully avoid coming to court thus causing harassment to the other party."
I am a layman, but I have gone through the Seventy First Report as well as Two Hundred and Seventeenth Report of Law Commission. Both reports don't find mention of such pre-condition as parties filing petition for grant of divorce by mutual consent but who wilfully avoid coming to court.
The statement coupled with other facts makes me question the very genuineness of such an amendment.
1. What was the hurry to implement the recommendation of making "Irretrievable Breakdown of Marriage" as ground of divorce, when the same government had not heeded to the same in recent past.
2. Is the government trying to play foul by playing with the recommendations of Law Commission and adding irrelevant conditions to it because such a condition fits in Smriti Shinde’s case?
3. If such irrelevant conditions are added, it would only benefit unscrupulous, powerful and mighty, who can obtain first consent by way of fraud or coercion. One should not forget that the legislature in its wisdom while adding section 13(B) in Hindu Marriage Act, 1955, made a provision that consent can be withdrawn after filing first motion. And for the same a statutory cool-off period of six months was given. If, such a pre-condition is added to irretrievable breakdown of marriage ground, it would defeat the section 13(B) of Hindu Marriage Act, 1955.
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Contributed by Shonee Kapoor
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