Report No. 71

Chapter 5

Retention of other Grounds of Divorce

5.1. Question of retention of other grounds.-

One of the questions which has posed itself for decision is whether the introduction of irretrievable breakdown of marriage as a ground of divorce under the Hindu Marriage Act should result in elimination of the other grounds of divorce, which already exist in the Act, e.g., adultery, cruelty or desertion, or whether those other grounds should also be retained.

Some foreign writers have expressed the view that after the introduction of the ground of irretrievable breakdown of marriage the other grounds might not be retained. We are however, unable to subscribe to the above view as, in our opinion, the introduction of irretrievable breakdown of marriage as a ground for divorce does not render the other grounds for divorce which already exist on the statute book as superfluous. There is no inherent contradiction or fallacy in having both the new and the old grounds.

Section 1 of the English Matrimonial Causes Act, 1973, is the only section in that Act which deals with a decree for divorce. According to that section1, a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably. Sub-section (2) of that section enumerates the circumstances from winch the court may infer that marriage has broken down irretrievably. Those circumstances are:-

(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted;

(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately proceeding the presentation of the petition.

It would appear from the above that according to the law in England, an inference of irretrievable breakdown of marriage can be drawn from a variety of circumstances. As against that, according to the amendment suggested by us2, irretrievable breakdown of marriage can be inferred from the fact that the parties to the marriage have been continuously living apart for a period of more than three years. The English law on the subject of irretrievable breakdown of marriage, unlike the amendment suggested by us, is much more comprehensive and brings within its ambit such circumstances as adultery, cruelty or desertion.

As we are not bringing in, for proof of irretrievable breakdown of marriage, considerations like adultery, cruelty or desertion, it is essential that the express provisions which we have already got in the Hindu Marriage Act relating to allegations of adultery, cruelty or desertion against one of the spouses should stand. We are, therefore, of the opinion that the ground of irretrievable breakdown of marriage for obtaining decree of divorce shall be in addition to the grounds as are already there in the existing provisions of the Hindu Marriage Act.

1. Section 1, Matrimonial Causes Act, 1973.

2. Section 13(1), Hindu Marriage Act, 1955.