It’s time to modernise our divorce laws

There seems to be misplaced faith in the legislative mind that marriages are made in heaven and thus, they shouldn’t be allowed to break down.  To promote this concern, lawmakers have enacted many laws to keep the knot intact.

The issue today is whether lawmakers have the right to keep a couple married even if the spouses don’t see eye to eye? They may not want to live together, but they have to because the Hindu Marriage Act doesn’t provide them the relief to live in their own space.
Moreover, who is to decide if a marriage is ‘irretrievably broken’, the law or the court?
The Law Commission has suggested making an ‘irretrievably broken down’ marriage a ground for divorce. But the government is unwilling to consider this option despite several judicial pronoun-cements expressing concern over spouses being forced to live together.

Incidentally, a family court cannot pass a decree on a petition for mutual divorce under Section 13-B of the Hindu Marriage Act, 1955, if one of the spouses withdraws the consent he or she may have given earlier.  Thus, couples level severe charges against each other to secure a divorce. This in turn leads to acrimony resulting in criminal cases on the one hand and character assassination on the other. This absurd situation must be avoided.

In 1997, the court, for the first time, relied on the ground of ‘irretrievable break down’ of marriage and held that “no useful purpose would be served in prolonging the agony of the parties to a marriage which had broken down irretrievably and that the curtain had to be rung down at some stage.”

The Law Commission wants to add this ground to the Hindu Marriage Act and the Special Marriage Act “keeping in mind changing social trends.” Neither of the two laws provide “irretrievable breakdown of marriage” as a ground for divorce.

There’s no dearth of legal support for the government in taking a positive look at the commission’s suggestions. Only legislative blessings are needed to lessen the trauma of estranged couples. Moreover, the CJI said that family and matrimonial disputes are also responsible for adding to the backlog of cases.