Report No. 71
2.5. How far concept of breakdown adopted in section 13(1A).-
It may be noted that although traces of the concept of breakdown of marriage could be found in the special provision for dissolution of marriage by decree of divorce at the instance of either party under section 13(1A) summarised above,1 it is an essential condition of the application of that sub-section that the proceedings for divorce must have been preceded by either a decree for judicial separation or a decree for restitution of conjugal rights. A decree for judicial separation, in its turn, could not have been passed2 unless circumstances which prove what may be called marital offence or marital disability were established. In this sense, a petition for divorce under section 13(1A) indirectly brings in a consideration of fault or disability.
Similarly, a decree for the restitution of conjugal rights could not have been passed unless it has been proved that the respondent had "without reasonable excuse"3 withdrawn from the society of the other. Thus, a petition under section 13(1A), in so far as it is based on a prior decree of restitution, also involves consideration of fault. Section 13B provides for divorce by mutual consent by bringing in the concept of divorce de hors any fault of a party.
All that is necessary in such cases is that there should be a petition for dissolution of marriage to be presented together by both the parties to a marriage, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. After the presentation of the petition, on a motion of both the parties made not earlier than six months and not later than eighteen months after the date of the presentation of the petition, if the petition is not withdrawn in the meantime, the court shall, on being satisfied after hearing the parties and after making such inquiries as it thinks, fit about the correctness of the averments in the petition, pass a decree of divorce. The legislature in India has not, as yet, adopted any provision directly and specifically granting divorce on the ground of irretrievable breakdown of the marriage.
1. Para. 2.3, supra.
2. Section 10, Hindu Marriage Act, 1955.
3. Section 9, Hindu Marriage Act, 1955.