Amendment of Marital Act to Include Irretrievable Breakdown: Background and Importance
Amendment of Marital Act to Include Irretrievable Breakdown: Background and Importance
Q. “Marriage laws should be amended to include ‘irretrievable breakdown’” Discuss whether such an amendment would be a progressive move.
A. About the Amendment
• Amendment of marriage laws to include ‘irretrievable breakdown’ rejected
• This amendment was a recommendation of the Law Commission
• SC has also made recommendations for the same
• Amendment has been well formulated keeping in mind the interests of the family affected by divorce
• Amendment was initially introduced in 2010; aim was to waive off the waiting period of 6 months prior to divorce by mutual consent
• 2010 Amendment did not safeguard women’s property rights and also did not opt for clauses that protected the rights of adopted children
• Draft was changed to ensure that waiting period would only be reduced conditionally by the court
• Amendment received approval by RS in 2013, but not LS
What is Irretrievable Breakdown?
• This is when the couple can no longer reside together
• Marriage has broken down so badly that no reasonable chance of getting back together exists
• Up till now, existing laws in India have not regarded the situation where spouses seek divorce despite living together
• No codified law for irretrievable breakdown to date
• Amendment regarding irretrievable breakdown of marriage is associated with consent which plays a major role in the occurrence of a valid marriage
• When one/both parties believe the marriage has failed, divorce is granted as per mutual consent while if one of the parties believe marriage is failing, party seeking the divorce needs to prove marriage has failed
• Except Islamic law, irretrievable breakdown of marriage is not found in any legislation as a certain ground for divorce
SC View
• The Hindu Marriage Act suggests certain grounds for dissolution of marriage in Section 13
• Change in social mores and changing nature of the institution of marriage has led SC to stress on making irretrievable breakdown of marriage as a basis for divorce
• SC strives to reduce agony and deliver justice of parties in a prolonged court battle
• Law does not specifically provide for dissolution of marriage on other grounds than the Hindu Marriage Act 1955
Theoretical Grounds
• Theoretical basis for including irretrievable breakdown of marriage as a basis for divorce known amongst lawyers as well as jurists
• Limiting ground of divorce to a particular offence or matrimonial disability is rather a narrow view
B. Importance of Amendment
Against
• Amendment not needed as provision for divorce by mutual content covers the situation of marital lapse induced by dysfunction
• Groups for rights of men argue that this amendment could be misused by women entering into marriage only to annul it at will and get property/monetary benefits
• Opponents say use of “irretrievable breakdown” could harm the institution of marriage
• Irretrievable breakdown is a subjective concept which is extremely abstract
• Irretrievable breakdown allows spouse(s) to end the marriage at will rather than viewing it as an institution
• Irretrievable breakdown can also be misused by erring husbands/wives who may actually be at fault for marital disharmony
For
• SC and Law Commission have said irretrievable breakdown can be used to end the “fault theory” as a ground for annulment
• Excessive emphasis on moral conservatism in abandoning this amendment
• Amendment pertaining to “irretrievable breakdown” strengthens individual rights
• Changing nature of the family and own earnings necessitate the need for independence in declaration of divorce proceedings as well
• Divorce law bases on fault alone is inadequate in dealing with a broken marriage
• FIR or criminal complaints are often lodged due to marital animosity; these can be prevented if a mechanism of “irretrievable breakdown” exists
• No person can take advantage of his own wrong if mechanism of irretrievable breakdown exists
• It is injurious to society if a legal bond is sought to be maintained without any emotional base
• Public interest makes it imperative that married status be maintained yet breakup essential in case of marital disharmony
• When marriage is beyond repair, mechanism of irretrievable breakdown is extremely effective
Conclusion
Irretrievable breakdown is a very important part of divorce law and the SC as well as the Law Commission are focused on furthering it. Amendment to the Hindu Marriage Act is essential in light of changing times and modern trends. Divorce no longer carries a social stigma and it may be essential to amend law keeping this in mind. There is no point in prolonging discomfort in the event of martial disharmony.
