Report No. 71

Appendix

Law Commission of India

Questionnaire

On

Hindu Marriage Act: Divorce on The Ground of Irretrievable Breakdown of Marriage

Irretrievable breakdown of marriage is now considered, in the laws of a number of countries, a good ground of dissolving the marriage by granting a decree of divorce. The Delhi High Court, in a Full Bench decision in Ram Kali v. Gopal Das,, 1971 ILR 1 Del 10 (FB), took note of the modern trend not to insist on the maintenance of a union which has utterly broken down, and observed:

"It would not be practical and realistic approach, indeed it would be unreasonable and inhuman, to compel the parties to keep up the facade of marriage even chough the rift between them is complete and there are no prospects of their ever living together as husband and wife."

In the case of Blunt v. Blunt,, 2 All ER 76 (HL), Viscount Simon, L.C., while specifying the considerations which should prevail in matrimonial matters, observed:

"To these four considerations I would add a fifth of a more general character, which must indeed be regarded as of primary importance, viz., the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down. It is noteworthy that in recent years this last consideration has operated to induce the Courts to exercise a favourable discretion in many instances where in an earlier time a decree would certainly have been refused."

The British Parliament since then has enacted the Matrimonial Causes Act, 1973 (which replaces the Divorce Reform Act, 1969). According to section 1 of that Act, a petition for divorce may be presented on the ground that the marriage has broken down irretrievably. Sections 1, 2 and 3 of the aforesaid Act have been reproduced in an Annexure to this Questionnaire.1

A distinguished jurist has suggested that irretrievable breakdown of marriage may also be made a ground of divorce by making the necessary amendment in the Hindu Marriage Act, 1955. The relevant provisions of the Hindu Marriage Act regarding divorce are contained in sections 13, 13A and 13B which are also reproduced in 2 It may be mentioned that section 13B provides for a decree of divorce by mutual consent.

A petition for divorce on the ground of irretrievable breakdown of marriage in a majority of cases would not make it necessary for the court to go into the question as to which party was at fault before granting a decree of divorce and it would be enough to prove that the relations between husband and wife have reached such a breaking point that there is no possibility of reconciliation. This would obviate the necessity of producing evidence of acrimony and other incidents during the married life, some of which the parties may not like to reveal.

Before taking any further action on the suggestion that irretrievable breakdown of marriage should be made a ground for divorce, it has been considered appropriate to invite views on the matter by issuing a brief Questionnaire. It is requested that if there be no objection, a considered reply may be sent to the undersigned within six weeks of the date of receipt of this Questionnaire.

Q. 1. 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?

Q. 2. If the reply to the question No. 1 be in the affirmative, what circumstances, in your opinion, should be considered to be sufficient to prove irretrievable breakdown of marriage?

Q. 3. How long should the parties have lived separately before the court can come to the conclusion that there has been an irretrievable breakdown of marriage?

Q. 4. Should the presence of children operate as a bar to the gram of a decree of divorce on the ground of irretrievable breakdown of marriage ? If so, should the bar be absolute or partial?

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.

1. The Annexures to the Questionnaire have not been reproduced here.

2. The Annexures to the Questionnaire are not reproduced here.