In a case that grabbed headlines, an 89-year-old army officer sought to divorce his 82-year-old wife and moved the apex court for irretrievable dissolution of the marriage. However, the Court dismissed the petition, reminding him that “marriage is still considered to be a pious, spiritual and invaluable emotional life-net between husband and wife in Indian society”. Yet, in numerous cases, the Court has allowed dissolution of a marriage for the same reason.
The couple had two daughters and a son after getting married in March 1963. After the officer was transferred from Amritsar to Madras in January 1984, issues started to crop up between the couple. His wife, a teacher, chose to stay with her in-laws and later with her son rather than travel with him. After unsuccessful attempts at an amicable resolution, the husband petitioned for divorce on the grounds of cruelty and abandonment. He claimed that his wife had complained to his superiors about him in order to damage his reputation and that she did not even call him when he was admitted to an Army hospital after suffering a heart attack. He said that all of these events constituted cruelty.
The pair lived apart after he filed for divorce in a district court in March 1997. He argued that the Court should utilise its authority under Article 142 of the Constitution and issue a decree of divorce due to the irretrievable dissolution of the marriage. However, his wife claimed that she did not want to pass away with the “stigma” of a “divorcee” because she was an old woman. She stated that she had made all efforts to respect the sacred relationship and was still ready to look after the husband with the assistance of her son. A “mere long period of separation could not be tantamount to the irretrievable breakdown of the marriage”, she added.
In February 2000, the Chandigarh District Court granted them divorce. However, a single-judge bench of the Punjab and Haryana High Court overturned the decision in December 2000 in response to an appeal from the wife. The spouse then petitioned the Supreme Court after the High Court in February 2009 upheld the single-judge bench’s ruling.
Regarding the issues of cruelty and desertion, the Supreme Court concurred with the High Court’s findings and stated that the husband had failed to prove that the wife had treated him with “cruelty” or had “deserted” him. The Supreme Court said it was vital to recognise that the institution of marriage plays a significant function in society. The institution of marriage is still seen as a religious, spiritual and priceless emotional life-net between the husband and the wife in Indian society despite the rising tendency for divorce. Marriage ties in society are the foundation for and source of many other relationships.
The apex court had, in a series of verdicts, asked the centre to amend the law to introduce irretrievable breakdown of marriage as a ground of divorce. But the law remained unamended and divorce was denied even if a couple was not living together for years and their relationship bruised beyond repair. This effectively denied them an opportunity to explore life afresh as their marriage survived in law, though not in substance.
Even the Law Commission advised the centre to take “immediate action” to change the laws pertaining to “irretrievable breakdown” where a “wedlock became a deadlock” in its findings from 1978 and 2009.
The apex court occasionally cited Article 142 to grant divorce despite the fact that statutes did not recognise the basis for divorce as the centre had not acted on the advice. The Court used its inherent authority under Article 142 to dissolve marriages when it determined that they were wholly unworkable, emotionally dead, beyond repair, and irretrievably broken down, even when facts did not establish a legal basis for doing so. But it did so to provide full justice and ease the suffering of the parties involved in a protracted legal dispute.
As the law did not specifically allow for the dissolution of marriage on grounds other than those listed in the Hindu Marriage Act of 1955, these were indeed unique circumstances. The Hindu Marriage Act of 1955 does not recognise irretrievable collapse of a marriage as a ground for divorce.
In Sandhya Rani vs Kalyanram Narayanan, the Supreme Court took the view that as the parties were living separately for more than three years, it had no doubt that the marriage had irretrievably broken down.
In A. Jayachandra vs Aneel Kaur, the Supreme Court concluded that when the respondent gave priority to her profession over her husband’s freedom, it unerringly led to disharmony, diffusion and disintegration of marital unity. From this, the Court could deduce the irretrievable breaking of marriage and granted divorce to the husband.
However, many a time in similar circumstances, the Court rather than granting divorce had ordered the restitution of conjugal rights holding that a Hindu marriage is sacred. Although the irretrievable breakdown of a marriage being made a reason for divorce under the Hindu Marriage Act, 1955, led to much discussion, High Courts and the centre have criticised it on numerous occasions.
Many judges of High Courts or lower courts have expressed reservations about the introduction of irretrievable breakdown of a marriage as a ground for divorce. One High Court said it was extremely difficult to say that the husband and wife would never live together merely because there had been a rift and for the time being it appeared that they may not live together.
It is possible that what may appear to one person to be irretrievable may appear to another as not yet beyond repair. But such a state of things cannot be allowed to continue indefinitely and there must arrive a point of time when one of the parties should be permitted to seek the judgment of the court as to whether there is or is not a possibility of the marriage being retrieved.
The Ministry of Education and Department of Social Welfare have said that making irretrievable breakdown of marriage a ground for divorce is redundant. This is because sufficient grounds covering irretrievable breakdown of marriage exist in the Hindu Marriage Act and the Marriage Laws Amendment Act, 1976, for the purpose of seeking divorce.
So many authorities see drawbacks behind this concept of irretrievable breakdown and are not in favour of its legislative birth and implementation. As a result, they feel marriage is a social institution in whose preservation the general public has a keen interest.
However, others have felt that if there is a lack of communication between the partners and the marriage is suffering, it would be preferable for the court to step in and dissolve the union. The continuation of such a marriage serves no beneficial purpose. Accordingly, such a marriage should be dissolved in accordance with the “irretrievable breakdown theory” for the benefit of both parties.
—By Abhilash Kumar Singh and India Legal Bureau