Report No. 71

6.3. Points made to replies to Question 2.-

We give below the important points made in regard to question 2. We shall deal later1 with the replies to question 3.

Some of the points made are:-

"Agreement by the two married people should be enough."2

"Not co-habiting" should be sufficient proof of irretrievable breakdown of marriage.3

"Separate living of (the) spouses for more than five years" should be sufficient to prove irretrievable breakdown of marriage.4

"Continuous separate living of the spouses in the prime period of youth, and desire of not coming together in the mind of one is sufficient to prove the irretrievable breakdown of marriage:5

"(i) After a continuous separation arising out of the rift and no petition of conjugal right from either side (party) is filed during the period of one year, "separation" should be deemed to be conducive ground for irretrievable breakdown of marriage. or

(ii) Continuous separation for more than one year, coupled with suspicion of misconduct from either side, mental or physical cruelty arising out of admission. Discovery of either of spouse regarding adultery covering pre-marital illicit relations rendering their living together impossible".6

"Continuous separate living of the spouses for long time" should be sufficient proof of irretrievable breakdown.7

The circumstances sufficient to prove irretrievable breakdown, according to some others, are:-8

(a) proof that "both the spouses are living separately for not less than one year on account of internal disputes and have no willingness to comply with conjugal rights";

(b) if a case for judicial separation or divorce or restitution of conjugal rights is pending for three years, and "no attempts to settle the dispute or to compromise are made by either party";

(c) "in some cases, it is even enough to take into account a simple submission of the spouse that he or she cannot live together Other circumstances mentioned in some of the replies are as under:-

"Present grounds of divorce (in the Hindu Marriage Act) should be sufficient to prove irretrievable breakdown of marriage".9

"Separation of the spouses, for whatever reasons, for a sufficiently reasonable time, should be considered sufficient to prove irretrievable breakdown of marriage."10

The circumstances sufficient to prove breakdown may be "somewhat like" those given below, but "they are by no means exhaustive".11

"(a) where the thinking of husband and wife on some vital aspects of life are so divergent that there is no possibility of reconciliation and co-ordination between them;

(b) absence of sex appeal in either spouse qua each other;

(c) aversion to sex on the part of either spouse and their lack of warmth, for each other;

(d) emotional disintegration between the two spouses".

The court should be satisfied that the other party "has been living away from the petitioner without cohabitation for a continuous period of not less than three years".12

"The suggestion (in Question 1)13 can be accepted only if the law would also provide new facts which would result in breakdown."14

According to another reply,15 "breakdown of marriage is a matter of fact for the court to decide, after satisfaction that all possible means of reconciliation have been tried out and have failed".

1. See para. 6.7, infra.

2. S. No. 1.

3. S. No. 2.

4. S. No. 5.

5. S. No. 6.

6. S. No. 7.

7. S. No. 10.

8. S. Nos. 11 and 13.

9. S. No. 15.

10. S. No. 17.

11. S. No. 19.

12. S. No. 19.

13. Question 1 was as follows:-

"Do you agree with the suggestion that the Hindu Marriage Act be amended with a view to making irretrievable breakdown of marriage as a good ground for grant of a decree of divorce?"

14. S. No. 19.

15. S. No. 19A.