The Hindu Marriage Act, 1955 provides various grounds for dissolution of marriage by decree of Court. Cruelty, desertion, adultery, unsoundness of mind, conversion to other religion, renunciation of world, virulent and incurable form of leprosy, venereal disease in a communicable form and not heard of being alive for a period of seven years or more are the grounds for divorce provided under Section 13 of the Act. Similar grounds for divorce have been provided under Section 27 of the Special Marriage Act, 1954. Both the acts also contain a provision for grant of divorce on the ground of mutual consent. The irretrievable breakdown of marriage is not a ground for divorce under both the Acts.
Pursuant to the recommendations of the 71st Report f the Law Commission of India and the recommendations of the Supreme Court and demand from various sectors, the bill for amendment of the marriage laws was drafted. The Union Cabinet on March 23, 2012 approved various proposals seeking amendments in the Hindu Marriage Act of 1955 and Special Marriage Act of 1954 aimed at providing ‘irretrievable breakdown of marriage’ as a new ground for parting ways.
- There is no provision to grant divorce on the ground of irretrievable breakdown of marriage either under the Hindu Marriage act, 1955 or the Special Marriage Act, 1954.
- The Amendment Bill proposes that parties to a marriage can file a petition for the dissolution of marriage on the ground that the marriage has broken down irretrievably.
- The court shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of three at least immediately preceding the presentation of the petition. The Court shall grant the decree for divorce on being satisfied that the marriage has broken down irretrievably.
- For the consideration whether the period for which the parties to a marriage have lived apart has been continuous, the court will not take account of any one period, not exceeding three months in all, during which the parties resumed living with each other. But any other period during which the parties lived with each other shall not be counted as part of the period for which the parties to the marriage lived apart.
- If the parties are living in the same household, the parties shall not be treated as living apart.
- Parties intending to get divorce on the ground of mutual consent have to wait for six months after filing the petition for divorce.
- The Amendment Bill proposes to waive off the waiting period of six months for moving a petition foe divorce. The cooling off period would be decided by the Court on the case to case basis.
- Where the husband files a petition for divorce on the ground of irretrievable breakdown of marriage, the wife may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage.
- In case the wife opposes the petition filed by the husband, the Court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned before grating the decree for divorce.
- The court shall not pass a decree of divorce on the ground of irretrievable breakdown of marriage unless it is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.
- The term ‘children’ would mean minor children, unmarried or widowed daughters who have not the financial resources to support themselves, and children who, because of special condition of their physical or mental health, need looking after and do not have the financial resources to support themselves.
- The term ‘children’ is not only restricted to the biological children of the parties but would also include the adopted children of the couple.
- If the Court decides to grant divorce on the basis of the irretrievable breakdown of marriage, any allegation that the fault of the party contributed to the conditions leading to the breakdown of the marriage would be irrelevant.
- The bill also proposes to give women a share in the property of the husband acquired by him during the subsistence of the marriage.
The irretrievable breakdown of marriage is not a ground of divorce either under the Hindu Marriage Act, 1955 or the Special Marriage Act, 1954. The proposed amendment to the marriage laws aims at accelerating the process of divorce, when there is indeed an irretrievable breakdown of marriage. The parties who are going through a broken marriage and cannot live together have to undergo a lot of mental agony. The present procedure also aggravates the suffering of the parties Thus, to save the parties of irretrievable broken marriage from mental agony, it has been proposed to waive off the cooling period of six months granted to parties after the presentation of the bill. The cooling off period will be decided by the Courts on the case to case basis. The proposed changes in the bill expressly lay emphasis on the welfare of the children while granting divorce to the parties.
Though the provisions of making irretrievable breakdown of marriage as a ground of divorce proposed to be introduced by the Amendment Bill have been appreciated by the people especially the couples whose marriage has broken down beyond repair, there is a likelihood of the misuse of the provisions. To mitigate the hardship that could have been caused to women the bill also proposes to give women a right in the property of the husband acquired by him during the marriage, though the quantum of the share would be decided upon the case to case basis.
The Marriage Laws Amendment Bill, 2010 provides safeguards to the parties who file petition for grant of divorce keeping in view the interests of the children and also providing financial support to the women by giving her right in the property of the husband.