Should divorce be granted solely on the basis of who is ‘at fault’? Or should ‘irretrievable breakdown’ of a marriage be cause for divorce? In a recent judgment, the Supreme Court held that situations causing misery should not be allowed to continue indefinitely, and that the dissolution of a marriage that could not be salvaged was in the interests of all concerned
The Hindu Marriage Act governing marriage between Hindus, and the Special Marriage Act governing marriage between individuals regardless of religious persuasion, are premised on the ‘fault’ or ‘matrimonial offence’ theory for the purpose of divorce. This, in effect, means that a person can be granted a divorce if, for example, it is established that the spouse has committed adultery, or has treated the person cruelly or deserted for more than two years. Thus the person has been “at fault” in some way. In addition, the wife can ask for a divorce on grounds that after marriage her husband was guilty of rape, sodomy or bestiality.
Part of the fault theory is that a person cannot take advantage of his/her own wrong. For example, a person cannot commit adultery or inflict cruelty and then file a petition for divorce. Divorce can only be sought by the hurt or aggrieved party who has been at the receiving end of the other party’s offending conduct.
Other grounds for divorce are incurable unsoundness of mind, leprosy, a communicable form of venereal disease, renouncing the world, and soon.
There has been an ongoing debate about whether divorce should be granted solely on the basis of the “fault of the party” or whether it should be based on the breakdown of marriage. Opinions remain divided among sociologists, lawmakers, reformers and even activists and feminists. Marriage as a sacrament, society’s stake in the continuance of marriage, the duty of judges to effect a reconciliation between the parties, and public interest are some of the major factors that feature in this debate.
Would introducing irretrievable breakdown as grounds for divorce work against the interests of women, given the gender disparities and large number of women deserted by their husbands? This remains a key area of concern within the women’s movement.
The Supreme Court had occasion to engage with irretrievable breakdown of marriage in the context of a recent case decided on March 21, 2006.
Naveen Kohli and Neelu got married in 1975 and went on to have three children. Naveen was the proprietor of three factories. He filed for divorce in the family court in Kanpur on grounds of mental, physical and financial harassment and torture by his wife Neelu Kohli. The husband alleged that his wife was bad-tempered, rude, quarrelled and misbehaved with him and his parents. That, in 1994, he had been compelled to leave his parental residence and stay in a rented house. Allegations that Neelu Kohli had indulged in indecent behaviour with another man were also made.
According to Naveen Kohli, Neelu had filed false criminal charges of cheating, forgery and causing injury by a weapon against him. That she had got their eldest son to file a case for having been beaten by the father. A case of cruelty, insult and criminal intimidation was also filed against the husband and his mother. In addition, a complaint had been filed before the Company Law Board describing the husband as a criminal, immoral, alcoholic and having had affairs with numerous women. It also denigrated his position from proprietor to employee in the company. In 1999, Neelu Kohli sent a notice asking for a partition of all properties and assets.
The wife denied being rude or quarrelsome. She also denied mentally, physically or financially harassing or torturing her husband, and the allegations of immoral behaviour. Neelu claimed that her husband was immorally living with another woman.
The family court found that the wife had filed a number of cases against her husband and had got the police to harass him. She had released an advertisement in the newspapers declaring that her husband was an employee in the factory, when in fact he was the proprietor. The court concluded that the husband was being mentally, physically and financially harassed by his wife. It held that both husband and wife had allegations of character assassination against them but had failed to prove these allegations. The court observed that although efforts had been made towards an amicable settlement there was no cordiality left between the parties and, therefore, no possibility of “reconnecting the chain of marital life between the parties”.
The family court dissolved the marriage, directing the husband to deposit Rs 25 lakh towards permanent maintenance of the wife. The husband deposited the money within two days of the judgment. The wife preferred an appeal against the granting of divorce in the Allahabad High Court, which held that the family court had not properly evaluated the evidence. It held that the husband was living with another woman. The wife’s appeal was allowed and the suit for divorce by the husband dismissed. The husband appealed and the matter reached the Supreme Court. The judgment was delivered in March and is reported as Naveen Kohli versus Neelu Kohli, 2006 (3) SCALE 252.
After noting that irretrievable breakdown of marriage was not grounds for divorce under the Hindu Marriage Act, the court went ahead and examined the concept in the context of the present case and changing social mores in India and around the world.
The Law Commission in its 71st report, submitted in 1978, dealt with the concept of irretrievable breakdown of marriage. The report mentions that as far back as 1920, New Zealand was the first of the Commonwealth countries to introduce the provision that a three-year or more separation agreement was grounds for filing a petition in the courts for divorce. In 1921, in the first case of the granting of divorce on these grounds in New Zealand, the court laid down that when matrimonial relations have, in fact, ceased to exist it is not in the interests of the parties or in the interest of the public to keep a man and woman bound as husband and wife in law. That in the event of such a separation, the essential purpose of marriage had been frustrated and its further continuance “not merely useless but mischievous”. This formulation has become a classic enunciation of the breakdown principle in matrimonial law.
The Law Commission observed that restricting divorce to matrimonial disability results in an injustice in cases where neither party is at fault, or if the fault is of such a nature that the parties do not wish to divulge it and yet the marriage cannot be worked out. It refers to a situation where the emotional and other bonds, which are the essence of marriage, have disappeared and only a faAade remains. The commission concludes that where a marriage has ceased to exist both in substance and in reality, divorce should be seen as a solution and an escape route out of a difficult situation. Such a divorce should be concerned with bringing the parties and the children to terms with the new situation and working out a satisfactory basis for regulating relationships in the changed circumstances. Not to dwell on the ‘wrongs’ of the past.
The court refers to the acceptance of the substitution of breakdown in place of matrimonial offences as a basis for divorce, by the general assembly of the Church of Scotland in 1969. The judgment quotes with approval the underlying rationale that: “Matrimonial offences are often the outcome rather than the cause of the deteriorating marriage. An accusatorial principle of divorce tends to encourage matrimonial offences, increase bitterness and widen the rift that is already there.”
Observing that a divorce law based mainly on fault is inadequate to deal with a broken marriage, the judgment states that once a marriage has broken down it would be unrealistic of the law not to take notice of this fact. According to the court, a long period of continuous separation could be taken to surmise that the matrimonial bond is beyond repair and that the marriage has become “a fiction though supported by a legal tie”.
The judgment holds that refusal to sever the tie in such a case does not serve the sanctity of marriage; in fact, it shows scant regard for the feelings and emotions of the parties.
The court observes that public interest demands that the married status should, as far as possible, as long as possible and whenever possible, be maintained. However, where a marriage has been wrecked beyond any hope of it being salvaged, public interest lies in the recognition of the fact. The judgment notes that there is no acceptable way in which a spouse can be compelled to resume life with the consort, and that nothing is gained by trying to keep the parties tied forever to a marriage that has ceased to exist.
Rejecting the view that irretrievable breakdown as grounds for divorce would create more problems than it would solve, the court holds that situations causing misery should not be allowed to continue indefinitely, and that the law has a responsibility to adequately respond to the needs of society.
Coming to the facts of the case, the court notes that Naveen Kohli and Neelu Kohli have been living separately for over 10 years. A large number of criminal cases of theft, cheating, forgery and causing hurt had been filed by the wife against her husband. In addition, Neelu Kohli had initiated civil proceedings against her husband. Naveen had initiated legal proceedings against his wife. The wife publishing advertisements describing her proprietor husband as an employee and cautioning the world not to deal with him could be said to amount to mental cruelty. The court concluded that the marriage between Naveen and Neelu Kohli had broken down irretrievably, and that there was no chance of their ever coming together or living together again.
Observing that the marriage had been wrecked beyond any hope of salvation, the court held that public interest and the interests of all concerned lay in the recognition, in law, of this fact. That even though the wife was not agreeable to a divorce by mutual consent and seemed to have resolved to live in agony only to make the life of her husband a miserable hell, public interest lay in the dissolution of the marriage bond. Keeping a sham of a marriage alive in law was held to be more conducive to immorality and potentially more prejudicial to the public interest than the dissolution of marriage. Not granting a divorce under such circumstances was held to be disastrous for the parties. The granting of divorce would offer them the chance, both psychologically and emotionally, to settle down after a while and start a new chapter in life. The Supreme Court directed that the marriage between Naveen and Neelu Kohli be dissolved, subject to the husband giving Rs 25 lakh to the wife as permanent maintenance.
Further, the judgment, taking into consideration societal needs, recommends that the government seriously consider bringing in an amendment to the Hindu Marriage Act, 1955, to incorporate irretrievable breakdown of marriage as grounds for the granting of divorce.
