Report No. 71
4.2. Reasons in support.-
In seeking answer to this question we have to bear in mind the changing nature of the family. The family is becoming more democratic, and more egalitarian. Both the husband and wife share not only the family house, in some cases they also share the earnings of each other. Because of the rising rate of female activity, the family unit is more of a coalition. It is, therefore, necessary that if the coalition cannot be worked, the legal sanction for it must be withdrawn. In answer to the objection that the ground of irretrievable breakdown of marriage is vague, it may be stated that the petitioner has to satisfy the court of a concrete fact-living apart for a sufficient length of time. Judges have thus to adjudicate on facts (not on some vague concepts) the question whether or not, on the evidence before them, the parties have been living apart for the specified period.
A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved divorce courts are presented concrete instances of human behaviour as bring the institution of marriage into disrepute. Because of the doctrine of matrimonial offence, judges and lawyers are sometime reduced to the role of scavengers. The lawyers have to look for and expose, and the Judges are confronted with, the worst obscenities within a married life. It is, therefore, not surprising that with the present adversary system all types of allegations are freely hurled across the courtroom.
We need not stand on an old divorce law which demands that men and women must be found innocent or guilty. It is desirable to get rid of the public washing of dirty linen which takes place in long drawn-out cruelty cases or in cases based on fault. If divorce is allowed to go through on the ground of marriage breakdown, such an unhappy spectacle will be avoided.
One cannot say that it is an enhancement of the respect for marriage if there arc tens of thousands of men and women desperately anxious to regularise their position in the community and they are unable to do so. People should to able to marry again where they can obtain a death certificate in respect of a marriage already long since dead.