When the marriage between the spouses becomes an empty shell and there is no possibility of any repair, we should take it that the parties have reached the stage of irreparable breakdown. And when there are all thorns in marital relations and not a single rose left, there is no other alternative than to leave the company of each other with maximum care and without bitterness, distress and humiliation.

The law of the land is never sealed in a book; it grows and develops. And any law, which does not change or improve with growing needs and changes in the society becomes static and if we may say so, is dead law.

In introduction to 59th Law Commission of India Report, former Chief Justice of India Mr. P. B. Gajendragadkar observed:

“It may sound platitudinous but is nevertheless true that revision of law is must” in a dynamic society like ours, which is engaged on the adventure of creating a new social order founded on faith in the value system of socio – economic justice enshrined in our Constitution. With the changing times, notions of fairness and justice assume newer and wider dimensions and customs and beliefs of the people change. These in turn demand changes in the structure of law; every progressive must make a rational effort to meet these demands. Between the letter of the law and the prevailing customs and the dictates of the current value system accepted by the community, there should not be an unduly long gap.

The story of social reform involves reform in personal law. It is an unending story. It continues from generation to generation. Each generation contributes to the continuance of an effort of the social reform, but the effort is never concluded and the end is never reached in the sense that no further attempt to reform is required.

“To survive, we need a revolution in our thoughts and outlook. From the altar of the past, we should take the living fire and not the dead ashes. Let us remember the past, be alive to the present and create the future with courage in our hearts and faith in ourselves”
Dr. Sarvapalli Radhakrishnan
At the time of formation of the Hindu Marriage Act

Taking into considerations the needs of the time and the improvement of the society, the Hindu marriage Act, 1955 has steadily undergone significant changes.

The glorious words of a progressive judge, Justice V. R. Krishna Iyer are immortal:

“Daily trivial differences get dissolved in the course of time and may be treated as the teething trouble of early matrimonial adjustment. While the stream of life, lived in married mutuality may wash away small pebbles what is to happen if intransigent incompatibility of minds breaks up the flow of the stream? In such a situation we have the breakdown of a marriage itself and the only course left open is for law to recognize what is a fact and accord a divorce”.

Justice Krishna Iyer observed that when the marriage breaks down completely and there is no possibility of any return the only remedy left is a divorce – and nothing else.

To quote his own words:

“While there is no rose but has a thorn, if what you hold, and no rose, better to throw it away”.

In Hindu Marriage Act, 1955 there is yet no direct provision of obtaining a decree of divorce on the ground of irretrievable break down of marriage. We can seek divorce only by first getting a decree of restitution of conjugal rights and after a period of one year of the grant of decree, the parties can seek divorce under Section 13 (1A) (ii) of the Act in case of non compliance of cohabitation course on resumption of marital intercourse.

The other ground available is a desertion of two years, when either party is entitled to file a petition for a decree of divorce. But unfortunately it may take five to ten years for a petition to be decided. But the prime of the life of the couples is thus wasted in courts to obtain a final verdict!!!

If the parties have been living separately for a long period, there is sufficient proof of irretrievable breakdown. Even if the parties are brought together by certain pressures, like pressure by parents / elders / well wishers, they can not lead a happy life as the long separation becomes the genuine course of suspicion among the parties.

Guilt and No Guilt Theory:
Earlier the law provided that after getting a decree of restitution of conjugal rights, the erring party could not seek divorce. It was only the party in whose favour the decree was granted, had the right to move the court for a decree of divorce in case of non – compliance of the decree of restitution of conjugal rights. The waiting period was 2 years. Amendments were brought to the said provision. The said period was reduced to one year, and either of the spouses can now move the court to obtain a decree of divorce. The amendment of 1976 discarded the guilty theory and thought that there was no justification for making the rights available only to the party who had obtained the decree in his or her favour.

There is thus no point of finding out as to who is at fault for the breakdown of marriage, the basic fact that the parties, unfortunately, can no longer live together as husband and wife, they should not be forced to drag on as such only in name.

Taking advantage of one’s own wrong:
According to Section 23 (1) (a) of the Hindu Marriage Act, no party is allowed to take advantage of his or her wrong. The petitioner will not be granted any relief if he is found taking advantage of his own wrong.

Varatakshmi N Vs N. V. Hanumanth Rao, 1978:
The husband had obtained a decree of judicial separation. The wife made several attempts to resume cohabitation. But the husband did not allow her to do so. After the completion of statutory period the husband petitioned for divorce on the basis of non – resumption of cohabitation after the decree of judicial separation. The wife objected that cohabitation could not be resumed because the husband did not allow her to do so and now granting him the divorce would amount to giving him advantage of his own wrong.

But the Honorable Court rejected the plea and a passed a decree of divorce. The court said that the resumption of cohabitation had to be voluntary and mutual.

Sandeep Shenoy

Reference: Divorce Law & Procedure by Dr. Janak Raj Jai

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