Sunday, March 15, 2009

Law can’t turn a blind eye to breakdown of marriage

“Law can’t turn a blind eye to breakdown of marriage”

J. Venkatesan

New Delhi: The Law Commission has recommended to the Centre that ‘irretrievable breakdown of marriage’ be incorporated as an additional ground for grant of divorce under the Hindu Marriage Act (HMA), 1955.

The suo motu suggestion for immediate action comes within days of the Supreme Court denying divorce to a husband on the ground of ‘irretrievable breakdown.’ A Bench held that it was for Parliament to amend the law and that the court could not add new grounds in the statute.

In its report to be submitted to the government next week, the Commission, headed by Justice A.R. Lakshmanan, said: “The foundation of a sound marriage is tolerance, adjustment and respecting each other. Tolerance of each other’s fault to a certain extent has to be inherent in every marriage. The court does not have to deal with ideal husbands and ideal wives. It has to deal with the particular man and woman before it.”

The report said: “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 interest of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie; by refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.”

The Commission said: “The public interest demands not only that the married status should, as long as possible and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, the public interest lies in the recognition of that fact. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist.”

At present ‘irretrievable breakdown of marriage’ was not one of the grounds for divorce mentioned in Section 13 of the HMA. Citing earlier Supreme Court judgments which pointed out the lacuna in the law, the Commission said the legislature had not thought it proper to provide for dissolution of marriage on this ground.

The Commission said: “Whenever the question of inclusion of ‘irretrievable breakdown of marriage’ as a ground for divorce is mooted, the opponents argue that ‘divorce’ by mutual consent introduced in the HMA in 1976 more than covers the situation. It is important to note that mutual consent requires the consent of both parties and if one or the other does not cooperate, the said ground is not available.”

“Irretrievable breakdown of marriage, on the other hand, is a ground which the court can examine and if the court, on the facts of the case, comes to the conclusion that the marriage cannot be repaired or saved, divorce can be granted. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom.”

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