Report No. 71
4.5. Recommendation as to breakdown.-
On a consideration of the merits and demerits of the theory of irretrievable breakdown of marriage, we have come to the conclusion that such a breakdown of marriage should be a good ground for the grant of a decree of divorce under the Hindu Marriage Act, 1955, if proved by the parties living apart for the specified period,1 and subject to the safeguards which we are recommending later in this Report.2
We need not repeat the various arguments in support of introducing such a ground, to which we have already made a reference in the preceding discussion. In reaching our conclusion, we have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties if the legal bond is sought to be maintained notwithstanding the disappearance of the emotional substratum.
Such a course would encourage continuous bickering, perpetual bitterness, and may often lead to immorality. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases do not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but also that the court should be empowered to declare defunct de jure what is already defunct de facto. Where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.
Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist. Marriage is life-long cohabitation in the home. When the prospect of continuing cohabitation has ceased, the legal tie should be dissolved.
1. As to the specified period, see Chapter 6, infra.
2. As to safeguards, see Chapter 7, infra.