Broken marriages and divorce

The basis of a happy marriage is affection, mutual trust and understanding. When that disappears, nothing but a shell of marriage is left. Is there any point or purpose in keeping two persons tied by the matrimonial bond when they cannot live harmoniously? Should the law not provide for dissolution of marriage in that situation on the ground of irretrievable breakdown of marriage?

Squabbles, taunts and heated reproaches by one spouse against the other by themselves cannot lead to an inference of irretrievable breakdown in our country, unlike in the US and in certain European countries, where short-term marriages followed by prompt divorces are common and accepted occurrences. The critical question is whether the matrimonial bond is broken beyond repair and it would be a cruelty and injurious to the health of either spouse to live under such a state of affairs, in which case the court may relieve one of the parties “from the shackles and chains of a broken marriage”. Incidentally, divorce by mutual consent is different from divorce on the ground of irretrievable breakdown of marriage.

There are divergent judicial dicta on this subject. In some judgements of the Supreme Court irretrievable breakdown of marriage has been accepted as a valid ground for grant of divorce. However a bench of the Supreme Court consisting of Justices Markandey Katju and VS Sirpurkar ruled that in the absence of a specific provision in the Hindu Marriage Act a court cannot grant a divorce on that ground and it is for the Parliament to enact or amend the law and it is not for the courts to legislate. The reasoning of the bench, clearly influenced by the doctrine of separation of powers, is not without force.

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