This Article is submitted by Sarwar Nagpal, 2nd semester BA. LL. B student of ILS Law College, Pune
Abstract:
Marriage is one of the most important social institutions on which human civilization is dependent. Traditionally, marriage was considered as a life-long relationship. But slowly and gradually, the concept of divorce came into picture. When the society felt dissatisfied with the provisions of Divorce based on fault theory, another concept i.e. irretrievable dissolution of marriage came into existence. The concept of irretrievable dissolution of marriage, also known as no-fault divorce, has emerged as an alternative to traditional fault-based divorce systems in many jurisdictions worldwide. This paper explores the evolution of the concept and its implications in the context of marriage and family as social institutions. It examines the legal development of irretrievable breakdown of marriage, focusing on notable judgments and reports, such as the 71st Report of the Law Commission of India. The merits of irretrievable dissolution are discussed, including simplified legal procedures, improved emotional well-being, and the preservation of parental cooperation. However, potential drawbacks are also addressed, such as diminished commitment to marriage, financial implications, and the impact on children. The global trends surrounding no-fault divorce are explored, highlighting its acceptance in countries like the United States, Europe, Canada, Australia, and select Asian nations. The abstract concludes by emphasizing the importance of allowing couples to dissolve their marriages amicably when irretrievable breakdown occurs, promoting the well-being of individuals and families involved.
Keywords:
Marriage, Divorce, Hindu Marriage Act 1955, Irretrievable marriage, Muslim Law, Fault theory, Legal development, Trends around the globe,
Introduction:
Marriage is one of the universal social institutions. It forms the basis of social organization and other important social institution i.e. family. It is the institution without which no civilization can exist. It was established by the human society to control and regulate the sex life of human beings. This resulted in formation of families. Marriage and family, social institutions with biological foundations, are complementary to each other. Both of them have different implications in different cultures but it is presented everywhere. But no institute is error free and every marriage can’t be ideal. There can be issues, problems and misunderstandings which can go to such an extent that it become unbearable to continue with the relation and have to put to an end.
Concept of Divorce:
There was a time when it was believed that marriage is made in heavens and was considered it as relationship of two souls, not just two human bodies. According to Hindu Culture, the concept of marriage was considered far much sacred unlike Muslim Law, where marriage is considered much of a contract. Hindus believe that marriage binds two persons in a relationship for the next seven lives. So, the concept of separation or idea of divorce was a far cry. But slowly and steadily, this idea could not stand against the ideas of social reforms and reformers who wanted to improve conditions of woman and not to have her chained with a man throughout her life even if the relationship become almost dead or unbearable for her. In the same direction, Bengal Sati Regulation (Regulation XVII, 1829), Hindu Widow Remarriage Act (Act XV, 1856) was legislated. But even during the British Rue, no legislation was passed which made came up with concept of divorce for Hindus. Then, in 1955, eight years after Independence Hindu Marriage Act was passed which lays down the provisions and essentials of marriage and divorce for Hindus. It was an important legislation as it was the first piece of Hindu Law to ever allow for divorce. Section 13 of this act particularly deals with Divorce. The section allows divorce on ground of Adultery, Desertion, cruelty, mental disorders etc. if committed by either of the parties.
In Muslims, the concept of divorce was already present in Holy Quran. But it is advised to practice only it as last option when no alternatives left to save the marriage. In the case, Shamim Ara vs. State of U.P, the Supreme Court stated that
[i]“The law as ordained by the Holy Quran is (1) that “talaq” must be for a reasonable cause, and (2) that must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his family. If their attempts fail then “talaq” may be effective”
Irretrievable Breakdown of marriage
[ii]Irretrievable breakdown of marriage means the couple can no longer live together as man and woman. Both mates, and one mate, must prove to the court that the marriage broke down so poorly that there’s no reasonable chance of getting back together. It’s a new conception surfaced in recent times due to changes in society, connubial relations and different places taken up by both the consorts. As we know, marriage is no longer an elysian bond. The provision of divorce has come common now-a-days. But when it was introduced with Hindu Marriage Act, it was faced with a lot of opposition. The same goes for the new conception of Irretrievable breakdown of marriage. It’s still not a ground for Divorce under Hindu Marriage Act, 1955 but divorce laws have been liberalized to such an extent that irretrievable breakdown as a ground has formerly sneaked in and courts have nearly judicially recognised the same.
The conception is getting popular with days and is now nearly a well given term for attorneys and justices. The vittles for Divorce in Hindu Marriage Act circumscribe the conception of divorce to some limited nuptial grounds and legal battle is fought on base of ‘Fault Theory’. The” fault proposition” of divorce refers to a legal frame in which divorce is granted only on specific grounds or reasons that demonstrate fault on the part of one or both consorts. In a fault- grounded system, a partner seeking a divorce is needed to prove that the other partner has engaged in some form of misconduct or wrongdoing that has led to the breakdown of the marriage. Irretrievable marriage serves as a legal foundation for granting divorce without assigning blame to either party. It requires proving the breakdown of the essential rudiments of a connubial relationship, similar as trust, communication, and collective respect, rendering the durability of the marriage unviable.
Legal development of Concept.
Although there’s no codified law for irretrievable dissolution of marriage yet in India. But according to the requirements and current script of current world, the conception has come into actuality in several judgements and Reports of Law Commission.
71st Report of Law Commission of India
[iii] The Law Commission observed that confining divorce to nuptial disability results in an injustice in cases where neither party is at fault, or if the fault is of such a nature that the parties don’t wish to discover it and yet the marriage cannot be worked out. It refers to a situation where the emotional and other bonds, which are the substance of marriage, have faded and only a façade remains. The commission concludes that where a marriage has desisted to live both in substance and in reality, divorce should be seen as a result and an escape route out of a delicate situation. Such a divorce should be concerned with bringing the parties and the children to terms with the new situation and working out a satisfactory base for regulating connections in the changed circumstances. Not to dwell on the wrongs of the history.
In the time 1981, a bill was also introduced in Parliament furnishing for Irretrievable breakdown of marriage as a ground for divorce, but it did not get passed.
In the time 2013, Hindu Marriage (Amendment) Bill 2013, was introduced which proposes ‘Irretrievable breakdown’ as a fresh ground for seeking divorce. This act was passed in Rajya Sabha but couldn’t go to Lok Sabha for discussion. The bill setbacks after dissolution of 15th Lok Sabha.
Judgements
In[iv] ‘NAVEEN KOHLI VS NEELU KOHLI’, Apex Court made a string plea for incorporating Irretrievable breakdown as ground for Divorce.
In[v] ‘ASHA PREETHA VSN. BHASKARAN’, Kerala High court pronounced that Irretrievable breakdown isn’t an honored ground, but can be an applicable factor while considering ground for atrocity.
In its most recent Judgement, in case ‘SHILPA SHAILESH VS VARUN SREENIVASAN’, exercising its power under Composition 142(1) of the constitution in order to give ‘complete justice’, The Supreme Court ruled that it has the power to dissolute a marriage if it’s irretrievably broken down. Two- judge Bench of the court had held that irretrievable breakdown of a marriage can be read as amounting to atrocity under the Hindu Marriage Act and can be a ground for divorce.
Merits of Irretrievable dissolution:
This concept is also called ‘No- fault Theory’ traditionally, divorce laws required one party to prove fault, such as adultery, cruelty, or desertion, in order to obtain a divorce. This approach often led to acrimonious legal battles, prolonged proceedings, and further emotional distress for both parties involved. Recognizing the need for a more humane and efficient system, many jurisdictions have embraced no-fault divorce, with irretrievable breakdown as the primary ground.
No-fault divorce allows couples to dissolve their marriage without having to prove wrongdoing on either side. By removing the need to assign blame, this approach aims to encourage cooperation, reduce animosity, and promote a fair division of assets and responsibilities. It recognizes that marriages can deteriorate due to a multitude of factors, and it is in the best interest of both parties to part ways amicably.
Implications and Benefits:
The adoption of irretrievable breakdown as a ground for dissolution brings several implications and benefits to the divorce process:
- Simplified Legal Procedures: No-fault divorce streamlines the legal process by eliminating the need for extensive litigation. Couples can focus on resolving practical matters, such as child custody, alimony, and property division, without being entangled in bitter disputes over who is to blame for the marital breakdown.
- Emotional Well-being: Divorce is a highly emotional experience, and the adversarial nature of fault-based divorces can exacerbate the distress for all involved, including children. No-fault divorce allows couples to approach their separation with greater understanding and empathy, promoting emotional healing and smoother transitions into post-marital life.
- Preserving Parental Cooperation: In cases involving children, no-fault divorce facilitates a more cooperative approach between parents. By removing the blame game, parents can prioritize the best interests of their children and work together to develop effective co-parenting arrangements.
- Encouraging Amicable Settlements: Irretrievable breakdown as a ground for divorce encourages parties to seek amicable settlements through negotiation or alternative dispute resolution methods, such as mediation. This approach promotes compromise, reduces legal costs, and saves time for all parties involved.
Drawbacks/ Demerits of Irretrievable Dissolution of marriage
While the concept of “irretrievable dissolution of marriage” or “no-fault divorce” has gained widespread acceptance and popularity in many jurisdictions, there are some potential drawbacks or criticisms associated with this approach. Here are a few of the demerits that have been raised:
Diminished commitment to marriage: Critics argues that no-fault divorce laws may weaken the institution of marriage by making it easier to dissolve without demonstrating fault or attempting to reconcile differences. They suggest that couples may be more likely to give up on their marriages prematurely, leading to an increase in divorce rates.
Financial implications: In cases where one spouse may have been financially dependent on the other, the transition to single life after divorce can be financially challenging. No-fault divorce laws may not adequately consider factors such as disparities in earning potential or the contributions made by each spouse during the marriage, potentially leading to unfair outcomes in terms of spousal support or division of assets.
Impact on children: Divorce can have significant effects on children involved. Critics argue that no-fault divorce laws may contribute to a more casual approach to marriage and divorce, potentially increasing the likelihood of unstable family environments and negatively impacting the well-being and development of children.
Lack of accountability: In a fault-based divorce system, the spouse filing for divorce is required to present evidence of fault, which may provide a sense of accountability and fairness. Critics argue that in a no-fault system, where neither party is required to prove fault, there may be a perception that individuals can walk away from a marriage without taking responsibility for their actions or their role in the breakdown of the relationship.
Impact on social norms and values: Some critics argue that no-fault divorce laws may contribute to a more individualistic and disposable approach to marriage, potentially undermining societal values and norms related to commitment, family stability, and the importance of long-term relationships.
Trends around the globe:
The trend of accepting Irretrievable dissolution as a ground for divorce can be seen prevalent worldwide. Many countries across the globe had moved for implementing No- fault theory.
United States: The United States has witnessed a widespread adoption of no-fault divorce laws since the 1970s. All 50 states now allow for some form of no-fault divorce, with irreconcilable differences or irretrievable breakdown being common grounds for divorce. No-fault divorce has become the norm, and fault-based grounds are rarely utilized.
Europe: Many European countries have embraced no-fault divorce laws. For instance, countries such as France, Germany, Italy, Spain, and the United Kingdom have adopted legislation allowing for divorce on the grounds of irretrievable breakdown or separation without the need to prove fault. These countries prioritize the concept of marriage breakdown rather than assigning blame.
Canada and Australia: Both Canada and Australia have moved towards adopting no-fault divorce laws. In Canada, the Divorce Act was amended in 1986 to allow for divorce on the grounds of separation for at least one year. In Australia, the Family Law Act of 1975 introduced the concept of no-fault divorce, emphasizing the breakdown of the marriage rather than proving fault.
Latin America: Several countries in Latin America have transitioned to no-fault divorce laws. For example, Argentina, Brazil, Colombia, and Mexico have introduced legislation allowing for divorce based on irretrievable breakdown or separation. These countries have aimed to simplify and streamline the divorce process.
Asia: No-fault divorce laws are less prevalent in many Asian countries compared to Western countries. However, there are some developments in this regard. Japan, for instance, introduced no-fault divorce provisions in 2007, allowing couples to divorce by mutual consent. South Korea and Taiwan have also implemented no-fault divorce laws, recognizing the importance of reducing conflict and promoting amicable separations.
Conclusion:
Marriage is an important social institution and a societal affair which vests deep interest for everyone. It is an important institution for civilizations to continue. It is hard truth that all marriages can’t withhold on standings of time and divorce is an alternative to get out of relationship, if it gets toxic. If the understanding is missing between both the spouses, it is desirable that the marriage should be dissolve with Court’s intervention. It is not a good idea to continue the relationship just for the sake of name and honour. It would affect the psychology and mental health of both. Moreover, it should not always be a necessary that a matrimonial ground is necessary for divorce. They should be allowed to get divorce and get parted. Thus, not putting allegations which result in character assassination of both and save them from time consuming time in legal battles.
References:
https://www.legalserviceindia.com/articles/break_mar.htm
Kumud Desai’s Indian Law of Marriage & Divorce, 10th edition
Naveen Kohli vs Neelu Kohli: AIR 2006 SC-1675
Asha Preetha vs N. Bhaskaran: AIR 2011 Ker-2011
CITATIONS:
[i] Shamim Ara v State of U.P, AIR 2002 SC 3551 [LNIND 2002 SC 619] (3556).
[ii] https://www.legalserviceindia.com/articles/break_mar.htm
[iii] https://www.legalserviceindia.com/articles/break_mar.htm
[iv] Naveen Kohli vs Neelu Kohli AIR 2006 SC- 1675
[v] Asha Preetha vs N. Bhaskaran AIR 2011 Ker- 27
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