In 2011, a bill was introduced in Parliament to introduce the concept of “irretrievable breakdown” as a ground for divorce. Women’s groups expressed concerns about introducing this concept without following it up with legislation on the division of matrimonial property. It was rightly pointed out that just having this as a ground without backing it up with other rights would cause serious harm. Men could drive women out of the home and approach the courts for a divorce on this ground and not care about any other rights that would safeguard women. In the face of the uproar, the bill was referred to a select committee, and it subsequently lapsed.
Most countries that have irretrievable breakdown (or “no fault”) as a ground for divorce, also invoke other safeguards, but even in such systems, there are criticisms that a party at fault manages to move the court and the judge does not have any power of inspecting the conduct of the spouses. But the process does remove acrimony.
The recent verdict of the Supreme Court (SC) has considered this factual situation and has introduced the ground of irretrievable breakdown, with only the apex court having the power to dissolve the marriage. Before this, there were divergent views in earlier judgments on this subject. Some judgments held that the SC under Article 142 can do complete justice, while other orders had taken a contrarian view. The Constitution bench has now settled this issue.
The court has laid down certain parameters in this regard. Seeking a divorce on this ground is not a matter of right but a discretion that the court will exercise with care and caution. The court has to consider whether the marriage is “totally unworkable, emotionally dead and beyond salvation.” To determine this, several factors are to be taken note of, such as: The period of time the parties had cohabited after marriage; when the parties had last cohabited; the nature of allegations made by the parties against each other and their family members; the orders passed in the legal proceedings from time to time, cumulative impact on the personal relationship; whether, and how many attempts were made to settle the disputes by theintervention of the court or through mediation, and when the last attempt was made. The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor. Thus, divorce is not for the asking, as in some other countries, but has to be carefully granted by the judges and would vary from case to case.
The court is also required to consider the economic and social status of the parties, including their educational qualifications, children and their age and educational qualification, the dependency of the spouse and the children and the obligation of the spouse seeking divorce to take care and provide for them. The question of custody and welfare of minor children, provision for fair and adequate alimony for the wife, and economic rights of the children and other pending matters, if any, are relevant considerations. These are not exhaustive.
The power of dissolving a marriage on this ground only rests with the SC. And not all parties can approach the apex court. The guidelines laid by the court should, therefore, be an indicator to start the discussion on introducing the concept of irretrievable breakdown as a ground for divorce in our marriage laws.
Geeta Ramaseshan is a senior lawyer practising at the Madras high court The views expressed are personal