Report No. 71

7.10. Recommendation as to hardship to the wife.-

We are of the view that there is something to be said for conferring a discretion on the Court to refuse divorce on the ground of irretrievable breakdown of marriage where a divorce would cause grave financial hardship to the respondent and it would be wrong in all the circumstances to dissolve the marriage. At the first sight, it may appear that once it is established that the marriage has broken down irretrievably, it would be illogical to allow a party to oppose the divorce on the ground of hardship. It is, however, to be remembered that the grant of divorce-or, for that matter, any other matrimonial relief-on a particular statutory ground is not necessarily mandatory on the proof of facts constituting the statutory ground.

There would be nothing theoretically wrong in vesting a discretion in the court to refuse relief if the special circumstances of the case require that the relief should be refused. Such a course would be adopted only in exceptional circumstances, but the vesting of a statutory discretion would be intended to promote the interests of justice, and is therefore supportable on that ground. At the same time, we do not consider it just to give such a discretion to the court in every case-as is the position in England.1 We do not think that there is any need for conferring such a discretion on the court in cases where the petition is by the wife.

The fact that a woman has commenced proceedings would, in Indian conditions, imply in most cases that she finds conjugal life intolerable. We do not think that in such circumstances it would be just or fair to leave any scope for refusal of relief on the ground of hardship to the respondent husband. Where the wife is the petitioner and the husband is the respondent, there could hardly arise any situation in which the hardship likely to be caused to the husband (respondent) by the grant of a decree of divorce would be more grave than the hardship that would be caused to the wife (petitioner) if the divorce is not granted. The situation may not be inconceivable, but would not be very frequent.

1. Section 5, Act of 1973, para. 7.7, supra.

7.11. It may be mentioned that unlike the English Act, which grants discretion to the court to refuse decree of divorce in cases of both grave financial and other hardship, we have confined in the proposed amendment the discretion to refuse relief only in cases of grave financial hardship when the court considers that it would, in all circumstances, be wrong to dissolve the marriage. We have omitted cases of "other hardship" as, in our opinion, the words "other hardship" would open the way for all kinds of pleas which might render the proposed provision contained in section 13C, in case of petition by the husband, to be more or less illusory in a large number of cases.