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WOMEN AND THE LAW

Consent and breakdown

CHITRA NARAYAN

Here are two more theories on which a marriage can be annulled

As discussed in the last column, divorce laws are based on one of four theories — `fault,' `frustration,' `consent' and `breakdown.'

The consent theory accepts that parties to a marriage could together decide to end the relationship. This is the concept of "divorce by mutual consent." In the Hindu Marriage Act, the Indian Divorce Act, the Parsi Marriage and Divorce Act and the Special Marriage Act, parties are required to apply to the court for an order of divorce on this basis. These laws provide that the parties live apart for a specified period of time, and also require that such application be made in two stages, before the divorce is confirmed. Importantly, related but critical issues such as maintenance, distribution of common properties and custody of children are expected to be decided by the parties. Islamic law too provides for divorce by mutual consent, but there is no additional requirement to apply to a Court for an order of divorce.

The fourth theory of divorce is the `breakdown' of marriage. The courts have, on occasions, when confronted with proceedings for divorce, found that the parties have been living apart and locked in litigation against each other for years. In these circumstances, the courts have, on consideration that the marriage has effectively broken down, ordered a divorce, though such a ground is not available under the matrimonial laws (except Islamic law).

Harmful to society

In March 2006, the Supreme Court considered a case involving spouses who had been married for a few decades, but were living separately for long on account of differences. These differences had obviously influenced their conduct towards each other and had resulted in cases being filed by one against the other. The Supreme Court recommended the inclusion of the ground of "irretrievable breakdown of marriage" in the laws governing divorce on the consideration that "once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties."

What the theory of irretrievable breakdown of marriage proposes is that where a marriage has for all intents and purposes ceased to exist, except for the legal tie of the relationship, either party could apply to the court for a decree of divorce. This application could be notwithstanding that the party applying for divorce would be unable to prove any of the grounds for dissolution/ invalidity of the marriage as provided in the matrimonial laws detailed in the previous column.

The theory of breakdown of marriage is qualified by the requirement that the breakdown be irretrievable, i.e., a satisfaction that nothing can be done to save it. This theory moves from the "fault" basis for terminating the relationship to a basis where irrespective of fault of either or both the parties, the marriage can be terminated if it is shown that nothing survives in the relationship.

Under the fault theory, where one of the parties has committed a wrong, which would be a justifiable ground for divorce, the choice of applying for a divorce is that of the innocent party. Likewise, the party committing a wrong cannot apply for divorce in view of his conduct in the matrimonial relationship, and some laws specifically provide that where a spouse has been guilty of a matrimonial wrong, he or she cannot apply for a divorce (e.g. the Indian Divorce Act, the Hindu Marriage Act).

This is not to say that the party committing the wrong should be able to take advantage of it by divorcing the spouse (e.g., where a spouse is guilty of adultery or bigamy). However, there is no purpose in forcing a relationship to continue, when there is no bond or trust between the parties. It would, in fact, be more constructive if the dependencies in the relationship are addressed, e.g., financial support to the dependant spouse, custody and upbringing of children, etc. It is a fact that many women condone or overlook wrongs by their spouses simply because they cannot afford to do otherwise.

There are some reservations and objections to this theory, which we consider in the next column.

(chitra.narayan@gmail.com)

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