Report No. 71

7.9. Question 5.-

By question 5 of our Questionnaire, we solicited views on the question whether the decree should be refused on the ground of special circumstances1.

"Q. 5. Are there any special circumstances in which, in your opinion, a decree for divorce should not be granted even if irretrievable breakdown of the marriage is established? If so, please specify the circumstances." We may state that while many of the replies on this question are in the negative, one of the replies2 suggests that if it is felt that the introduction of the proposed ground may cause hardship or prejudice to women, then the right to seek divorce on the proposed ground may be limited to the wife. The reply of a High Court Judge is more specific. She says3:

"When the parties to a marriage have lived apart for a continuous period of at least 5 years immediately preceding the presentation of the petition, that fact should be considered as a prima facie proof that the marriage has irretrievably broken down. In no case should a decree for divorce be passed on the ground that the marriage has irretrievably broken down unless the parties to the marriage have lived apart for a continuous period of at least 5 years immediately preceding, the presentation of the petition.

The Court should be further satisfied in each such case that the dissolution of marriage will not result in grave financial or other hardship to the respondent. Payment of a suitable lump sum alimony to the wife when the respondent is the wife should be a condition precedent to the grant of such a divorce. The amount should be determined by the Court in the alternative the Court may grant a monthly amount as maintenance to the wife if the Court is satisfied that such future monthly payments are adequately secured. Either party should be able to present such a petition, and the consent of the other party should not be necessary for presenting such a petition."

1. Question 5.

2. S. No. 19.

3. S. No. 34, under question 2.