Report No. 71

4.8. Objection of one High Court considered.-

We may note that the Judges of one High Court1 have expressed themselves against the introduction of irretrievable breakdown as a ground of divorce. One of the points made in the reply of the High Court is that it is extremely difficult to say that the husband and wife would never live together merely because there has been a rift between them and for the time being it appears that there may not be any prospect of their living together. We agree that the mere fact that there has been a rift between the parties or that they are for the time living apart does not mean that the marriage has come to an end. But we may, with respect, point out that our proposal contemplates not merely a breakdown of the marriage, but a breakdown which is irretrievable.

Of course, it is possible that what may appear to one person to be irretrievable may appear to another as not yet beyond repair. But such a state of things cannot be allowed to continue indefinitely, and there must arrive a point of time when one of the parties should be permitted to seek the judgment of the court as to whether there is or there is not a possibility of the marriage being retrieved. Human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor decline to give adequate response to the felt necessities arising therefrom.

It seems to us that the social interest and balance of justice lie in favour of giving due weight to the fact that where the parties have lived apart for the specified period, they should be taken to be married only in name. It may be very unfortunate that such a situation has come about; but once it has come about, wisdom lies in accepting it as an established fact and in proceeding to consider how best to deal with the situation, rather than in turning a blind eye to realities. The Gujarat Government,2 while supporting the suggestion that irretrievable breakdown of marriage should be made a ground of divorce, has observed that it would be advisable that the spouses should be allowed to reconstruct the marriage where the first was "wrecked beyond the possibility of reconciliation". We find considerable force in this view.

1. S. No. 30.

2. S. No. 31.