Kerala HC judgment shows divorce debate on 'irretrievable breakdown of marriage' must be revived

The Kerala High Court recently observed that that a liberal approach needs to be adopted by courts while dealing with divorce applications based on mutual consent. The court held that the six-month cooling off period, or waiting period, as stipulated, is merely directory in nature, and not mandatory. The court opined that “When it is convinced to the court that the marital tie has been broken irretrievably and that there is only nil chances of rethinking and reunion of the spouses; and when the conditions enumerated in the ruling in Amardeep Singh stand satisfied, there is absolutely no justification for compelling the parties to wait further, in a manner prolonging their agony."

While the judgment pertains to mutual consent divorce petitions, the reasoning adopted by the Kerala High Court begs a very important question, that has engaged the attention of many lawyers and social scientists — namely, whether divorce should be based on matrimonial fault, or the breakdown of marriage. The former pertains to the fault theory of divorce, under which a marriage can be dissolved only when one of parties has committed some matrimonial fault.

The latter, however, pertains to the ’no fault theory’ of divorce, under which a marriage can be dissolved without any fault of any spouse, and what needs to be shown to the court is that the marriage has irretrievably broken down, and that either or both parties are not interested in staying together anymore. This ground, known as irretrievable breakdown, does not find place in the legal framework of India. However, it has been in consideration for quite some time.

The question was first considered by the Law Commission of India in its 71st Law Commission Report, which dealt with the concept of irretrievable breakdown of marriage, and the extent and conditions under which it could be included as a distinct and separate ground for divorce in India. The report observed that the practice of restricting the grounds for divorce to matrimonial faults and disabilities resulted in grave injustice, in matters where neither spouse was a fault and yet, the marital relationship had ceased to exist. It therefore defined irretrievable breakdown as a situation wherein the very foundation of the marriage, which is built on a deep love, affection and an emotional bond and respect for another, has broken down, and the marriage merely exists on paper.

The Law Commission concluded by saying that when a marriage had broken down completely, then the divorce proceedings, instead of being concerned with whose fault it is, should be focussed on bringing the spouses and other parties involved, including the children, to terms with the new situation.

This proposition was put forth by the Supreme Court, in the case of Naveen Kohli versus Neelu Kohli , wherein the Court recommended that the Union of India should seriously consider bringing in an amendment in the Hindu Marriage Act, 1955, and incorporate irretrievable breakdown of marriage as a ground for divorce. Subsequently, the 217th report of the Law Commission of India, in 2009, made similar recommendations. Taking heed of the same, the Marriage Law Amendment Bill of 2013 was introduced in Parliament, which made provisions for irretrievable breakdown of marriage as a separate ground for divorce. The bill was passed by the Rajya Sabha on 26 August, 2013, but failed to be taken up for consideration in the Lok Sabha due to the change in Central government in 2014.

The bill faced stiff opposition, and it was contended that the passing of the bill would lead to increased unwarranted litigation, and destroy the institution of marriage and family values. Perhaps what the Opposition failed to realise was that when there is no attachment, respect, or willingness left to continue the relationship, no family values can save the marriage. Another misconception that many opponents hold against the inclusion of irretrievable breakdown as a ground for divorce is that “divorce by mutual consent” already covers the situation.

However, it should be understood that mutual consent by definition requires the consent of both the parties, and fails if either party doesn’t cooperate. Irretrievable breakdown, on the other hand, is a ground under which the court can come to the conclusion that the marriage can not be saved, based on the facts and the evidence, and divorce can be granted. It is not dependent on the will of the parties but on the facts presenting that the marriage has irretrievably broken down.

Given the recent Kerala High Court judgment, perhaps it is time the debate was revisited, and “irretrievable breakdown of marriage” was included as a distinct ground for divorce, as recommended by numerous Law Commission Report and Supreme Court judgments.

Raghav Pandey is an assistant professor of Law at Maharashtra National Law University, Mumbai and Neelabh Bist is a Fourth Year student of Law at Maharashtra National Law University, Mumbai