Marriages, as they define, are made in heaven and solemnized on earth. It is a sacrament for Hindus, a sanctified contract for Muslims and a sacred knot for Christians. Husbands and wives vow for each other, yet there have been innumerable cases of betrayals by the spouses.
The complexity of modern society and its possible consequences such as fast changing socio economic conditions, the disintegration of the joint family structure, the rapid development of industrialization and urbanization, education and employment and laws giving equal status and rights to women, led a tremendous impact on the institution of marriage. Few decades ago divorce was considered as an evil, the grounds of divorce were very limited and it was sought only under compelling circumstances. Positions have however, changed now. Marriage is no longer treated as an indissoluble union. In fact, there has been a considerable legislative and judicial interference in the sphere of matrimonial laws during the past few decades all over the world. In view of the changing times, divorce laws are being substantially modified and liberalized.
It was first in the Hindu Marriage Act, a form of irretrievable breakdown of marriage theory was introduced through the amendment of 1976, by which clauses (i) and (ii) have been inserted.
Bombay High Court in one occasion remarked: The enactment of Sec. 13(1A) is a legislative recognition of the principle that in the interest of society if there has been a breakdown of the marriage there is no purpose in keeping the parties tied down to each other.
Sec. 13(1A) provides-
Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for dissolution of marriage by a decree of divorce on the ground-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upward after the decree for restitution of conjugal rights in a proceeding to which they were parties.
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upward after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
A further initiative towards the recognition of the principle of breakdown was the introduction of mutual consent as a ground of divorce in 1976 by incorporating Sec. 13B in the Hindu Marriage act
In the year of 1981, a Bill was introduced to give effect irretrievable breakdown as a ground for divorce, but it did not accept as some scholars apprehended that unscrupulous husband would desert their wives and take advantage of this provision.
Several cases have been decided by the courts, where the marriage was in fact, utterly broken but the courts applying the technicalities of the law , subsisted the marriage tie and could give any meaningful relief to the parties.
One view can be cited against including the item irretrievable breakdown of marriage as one of the grounds of dissolution of marriage is that there is a risk in giving recognition to a situation where the marriage would be deemed to have been broken down. Such a unilateral act, unless made an issue by the wronged spouse, cannot be deemed to be a valid ground to take away the legal right, which has accrued by solemnization of marriage at the instance of the spouse who is found guilty of any wrong.
In Asha v. Krishna Lal (1990 Del.1), Delhi High Court held that irretrievable breakdown of marriage is not contemplated to be one of the grounds for dissolution of marriage. Thus by itself it can not be taken to be a ground for decree of dissolution of marriage.
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Right to Die – Part 3 – Aishwarya Sandeep