Report No. 71
Chapter 7
Safeguards
7.1. Introduction.-
In most countries, certain safeguards have been provided in legislation permitting divorce on the ground of breakdown of the marriage. These safeguards proceed on two important considerations. First, a marriage that is worth preserving ought to be preserved, and secondly, where dissolution of the marriage becomes unavoidable, care should be taken to ensure that the interests of those who are likely to suffer as a result of divorce are taken care of. The safeguards that are usually provided by legislation in other countries are the following:-
I. Provision for the welfare of children.
II. Provision permitting the court to refuse divorce in case of hardship to the respondent.
III. Provision restricting divorce within a certain period after the marriage.
This safeguard is built-in in the amendment recommended by us,1 as a petition for divorce on the ground of irretrievable breakdown of marriage can, in the very nature of things, be filed only after more than 3 years from the date of the marriage.
IV. Provision for reconciliation.
Provision for this purpose already exists in the Hindu Marriage Act.2
While dealing with cases of irretrievable breakdown of marriage, it may be stated that current thinking is that compulsory counselling is likely to prove a waste both of time and of resources as most couples will not, in any event, be reconciled and that resources should be concentrated on those parties who show a positive interest in their marriage.3 It has been suggested that4 counselling is unrealistic where the spouses do not show a positive interest in the future of their marriage and do not seek counselling voluntarily. It may, however, be appropriate to mention that section 23(2) of the Act imposes a duty on the court to make every endeavour to bring about reconciliation "where it is possible so to do consistently with the nature and circumstances of the case".
Where conciliation within the terms of section 23(2) of the Act is possible, it would sometimes be desirable to utilise the services not only of qualified persons but also of members of the family, in effecting reconciliation. In this context we may refer to Order 32A of the Code of Civil Procedure, 1908, inserted in 1976.5 The Order applies to suits and proceedings relating to matters concerning the family. Rule 3 of the Order imposes a duty to make efforts for settlement in such suits and proceedings.
Rule 4 of the Order reads as follows:-
"4. Assistance of Welfare expert.-In every suit or proceedings to which this Order applies, it shall be open to the court to secure the services of such person (preferably a woman where available), whether related to the parties or not including a person professionally engaged in promoting the welfare of the family as the Court may think fit, for the purpose of assisting the Court in discharging the functions imposed by rule 3 of this Order."
Matrimonial Courts can resort to this rule whenever suitable occasion arises.
V. Restrictions arising out of the financial position of the respondent.
1. Para. 6.8, supra.
2. Section 23(2), Hindu Marriage Act, 1955.
3. Max Rheinstein The Law of Divorce and the Problem of Marriage Stability, (1956) 9 Vanderbilt Law Review 633, referred to by Frank Bates The Enforcement of Marriage Revisited, (July-September, 1977) Vol. 6, No. 3, Anglo-American Law Review 172, 181.
4. Seildson Systematic Marriage Investigation and Counselling in Divorce Cases: Some Reflections on its Constitutional Propriety and General Desirability, (1967) 36 George Washington Law Review 60, 70, referred to by Frank Bates The Enforcement of Marriage Revisited, (July-September, 1977), Vol. 6, No. 3, Anglo-American Law Review 172, 181.
5. Order 32A, rules 3-4, Code of Civil Procedure, 1908.
