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When it's an `irretrievable' breakdown

It is time irretrievable breakdown as a ground for divorce is introduced in the law

Since consent is accorded primacy at the time of marriage, it follows that when one or both parties believe that the marriage has broken, they can petition for divorce. When both parties agree the marriage has failed, they can apply for divorce by "mutual consent". When only one of the parties believes that the marriage is failing, it would be enabling for the party to seek divorce arguing that the marriage has broken down, despite the unwillingness of the other party to end the relationship. However, except in the Islamic law, "irretrievable breakdown of marriage" is not found in any legislation as a specific ground for divorce.

There are five central concerns about bringing the ground of irretrievable breakdown of marriage into the divorce statute. These are:

1) Marriage relationship is accorded sanctity in our society, which would be treated with levity if this ground of divorce is available;

2) Divorce carries social stigma, especially to the wife;

3) This ground permits husbands to terminate a marriage relationship at will;

4) This ground could be misused by an errant husband and;

5) That subjective elements exist in the understanding of "irretrievability" and "breakdown".

Recognition of irretrievable breakdown of marriage as a ground for divorce requires us to set aside our notions of the sanctity of the marriage relationship. The sanctity that such relationship has arises only from the exceptional sharing and trust that such relationship involves, and cannot be sustained on external notions of unity and obligation. Related to this is the issue of stigma, which we need to overcome and address instead of the dependencies arising out of such relationships. This would matter tremendously in helping the woman regain some measure of confidence.

The last three objections can be dealt with together, by introducing in the ground for irretrievable breakdown, adequate safeguards which introduce objective elements to determine when there is an irretrievable breakdown, and providing for the ancillary issues in the marriage relationship to be resolved as a condition for grant of divorce. This would include financial support to the spouse and children, arrangements on the custody of the children, distribution of the property of the spouses, etc. Where the spouse applying for the divorce has committed a wrong, this could be a factor in determining the maintenance granted to the other spouse. While this ground may seem an attractive and easy option, the introduction of objective factors to determine breakdown will ensure that this ground is not opted for on whim or an impulse.

The Law Commission in its 71st report had considered this very issue, though only in the context of the Hindu Marriage Act, 1955 and recommended the inclusion of this ground. The recommendation in the form of a suggested provision of law substantially addresses the concerns in bringing about this change in law.

The recommended provision requires that a spouse may file an application for divorce on this ground only where the spouses have lived apart for a continuous period of three years. The computation of this period would accommodate intermittent periods in its fold, where the parties have attempted reconciliation, and such attempts would not be treated as a disqualification. The Law Commission recommended that recourse to this ground would not be available where the marriage is only a few years old. There should be attempts at reconciliation between the parties. Importantly, the court can refuse divorce on the ground of irretrievable breakdown, if this would cause financial hardship to the other spouse. The order for divorce on this ground would as a condition precedent provide for the financial support of the needy spouse and the children. The Commission has also taken note of a suggestion that this payment be a one time payment, thus reducing the dependency of the wife on her divorced spouse.

The report of the Law Commission was in 1978, and we are yet to see any initiatives from the law makers in this regard. Over this period, courts have dissolved marriages on this consideration of irretrievable breakdown. While this is progressive, the orders passed for divorce on this ground have to be within the framework of some objective standards with safeguards, and not just at the discretion of the courts alone. It is time that the lawmakers recognise the need for this ground for divorce and introduce it in the law.

(chitra.narayan@gmail.com)

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