Report No. 71

Chapter 8

Recommended Amendments

8.1. Insertion of new sections 13C, 13D and 13E.-

The following is a rough draft of the new sections to be inserted in the Hindu Marriage Act, 1955, in order to implement our recommendations1 on the several matters of a substantive nature2 dealt with in this Report so far:

"13C. Divorce on the ground of irretrievable breakdown of marriage.- (1) A petition for the dissolution of a marriage by a decree of divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.

[Compare section 1(1), English Act, 19731

(2) The court hearing such a petition shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition.

[Compare section 1(2)(e), English Act, 19731

(3) If the court is satisfied; on the evidence, as to the fact mentioned in sub-section (2), then unless, it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce.

[Compare section 1(4), English Act, 19731

(4) In considering for the purpose of sub-section (2) whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months in all) during which the parties resumed living with each other, but no period during which the parties lived with each other shall count as part of the period for which the parties to the marriage lived apart.

[Compare section 2(5), English Act, 19731

(5) For the purposes of sub-sections (2) and (4), a husband and wife shall be treated as living apart unless they are living with each other in the same household, and references in this section to the parties to a marriage living with each other shall be construed as references to their living with each other in the same household."

[Compare section 2(6), English Act, 19731

"13D. Wife's right to oppose the petition on the ground of hardship.- (1) Where the wife is the respondent to a petition for the dissolution of a marriage by a decree of divorce under section 13C, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage.

(2) Where the grant of a decree is opposed by virtue of this section, then-

(a) if the court finds that the petitioner is entitled to rely on the ground set out in section 13C, and

(b) if apart from this section the court would grant a decree on the petition.

this court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if the court is of opinion that the dissolution of the marriage will result in grave financial hardship to the respondent and that it would in all the circumstance be wrong to dissolve the marriage it shall dismiss the petition, or in an appropriate case stay the proceedings until arrangements have been made to its satisfaction to eliminate the hardship."

[Compare section 5, English Act, 1973]

"13E. Restriction on degree for divorce affecting children.- (1) The Court shall not pass a decree of divorce under section 13C unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage referred to in sub-section (2) has been made consistently with the financial capacity of the parties to the marriage.

(2) This section shall apply to-

(a) minor children;

(b) unmarried or widowed daughters who have not the financial resources to support themselves; and

(c) children who, because of special condition of their physical or mental health, need looking after and have not the financial resources to support themselves."

1. Para. 4.5 Breakdown as a ground of divorce. Para. 6.4 Living apart as proof of divorce.

Para. 6.8 Period of living apart.

Para. 6.9 Continuity of the period.

Para. 7.6 Provision relating to children.

Paras. 7.10 to 7.12 Question of hardship.

2. For procedural and consequential amendments, see paras. 8.2 and 8.3, infra, which deal with sections 21A and 23(1).