On March 7, 2009, a Supreme Court bench ruled that a Hindu couple cannot be granted a divorce on the grounds of “irretrievable breakdown” of marriage because this was not mentioned in the Hindu Marriage Act (HMA), 1955. Instead, it said it was for Parliament to amend the law. This order was passed while dismissing the appeal of one Vishnu Dutt Sharma who was seeking a divorce on the grounds that his marriage had irretrievably broken down.

Much changed in a week. The Law Commission, an advisory body to the law ministry, has now recommended that ‘irretrievable breakdown’ be incorporated as additional grounds for divorce under the HMA. In its report to the government, the Commission, headed by Justice A R Lakshmanan, said: “Irretrievable breakdown of marriage...is a ground which the court can examine and if the court, on the facts of the case, comes to the conclusion that the marriage cannot be repaired or saved, divorce can be granted. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom.”

But experts are divided on the issue. Senior advocate Pinky Anand criticizes the Law Commission’s recommendation, saying “sometimes, we try to emulate the West and in the process, end up harming ourselves. This is one of those instances. It was a deliberate decision not to include the clause of irretrievable breakdown till now”.

Anand says that such an option would only make it easier to break up a marriage, especially in these modern times when it is not taken particularly seriously anyway.

But sociologist Mala Kapur Shankardass disagrees. “As people get more and more vocal about their likes and dislikes and are even choosing their spouses, they should also be given the choice to decide when it’s over.” Perhaps this clause might help in a country where it’s thought nearly five million women endure domestic violence. Perhaps it might make it easier for them to break free.

Shankardass says it’s time the system recognizes social change. India has already absorbed the changing nature of one of its most significant institutions — marriage. “Even in arranged marriages, families are giving their children the freedom to choose their partner. So when matters go from bad to worse, they are increasingly exercising the option of divorce,” she says.

Anand says it is precisely this freedom of choice that is making marriages fragile. “The clause of irretrievable breakdown will make getting a divorce so easy, that it will definitely be exploited by men as an excuse to abandon their wives. In a country like India, it will end up being detrimental to women,” she says. Unlike the Muslim Marriage Act, where the mere utterance of the word ‘talaq’ by a man is enough to secure divorce, it is comparatively difficult to break free under the HMA.

Indian matrimonial law is generally ‘fault-based’, which means the grounds for divorce have to be the fault of either party, be it adultery, desertion or cruelty. But there is also a mutual consent clause, when neither party is at fault nor is agreement the marriage is no longer working. This, says Anand, is a good enough reason for divorce if the marriage has broken down. “Inclusion of this clause (irretrievable breakdown of marriage), is therefore thoroughly misplaced,” she says.

Even so, the breakdown of a happy marriage is one of the most significant causes of divorce. Many say it can hardly be seen as the by-product of modernity. Clinical psychologist and psychiatrist Varkha Chulani says our parents and grandparents were used to living lives of quiet desperation. “It’s only now that we have the courage to say we are not going to take it anymore”.

Incompatibility is often a major reason for unhappiness. “If friends can grow apart, why can’t a couple?” asks Chulani. Incompatibility is still considered the flimsiest grounds for divorce in India, she admits, but change is definitely underway.