Filing for divorce might become less tough if a Law Commission recommendation is accepted, says Shabina Akhtar

Sagnik Mitra (name changed on request) defied his parents to marry Monalisa Roy. However, she dumped him within a few years, after emptying out his bank account. Almost a year has passed since then and Mitra wants a divorce but breaking his trust is not an acceptable ground to file for divorce. He has to wait for another year before he can seek divorce on grounds of desertion. “How I wish there was a law to obtain a divorce immediately,” he laments. “I feel helpless at times. The marriage is beyond repair but I can’t file for divorce. And I’m scared that my wife will slap a cruelty case against me anyday. If only I could file for divorce immediately, life might be a little better.”

If recent recommendations made by the Law Commission of India are accepted, Mitra’s wish could come true. In its 217th report to the Union minister for law and justice, the commission has “suggested that immediate action be taken to introduce an amendment to the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, for the inclusion of ‘irretrievable breakdown of marriage’ as another ground for grant of divorce.”

At present, Section 13 of the Hindu Marriage Act, 1955, and Section 27 of the Special Marriage Act, 1954, provides grounds for seeking divorce. “A couple can use irreconcilable differences as a ground to seek divorce. But this clause is applicable only to divorce by mutual consent, in accordance with Section 13 (b) of the Hindu Marriage Act,” says Calcutta High Court advocate Jay Sengupta. To apply for divorce under this clause, couples have to stay separately for at least a year and state that they are seeking a divorce because they are unable to cohabit. Sengupta goes on to explain the difference between irreconcilable differences and irretrievable breakdown of marriage. “As mentioned earlier, couples can cite irreconcilable differences if seeking mutual divorce. The irretrievable breakdown of marriage clause would be for a warring couple where one of the partners, for whatever reasons, doesn’t want a divorce.”

The Supreme Court had in the Naveen Kohli vs Neelu Kohli (AIR 2006 SC 1675) case recommended that the Union of India consider amending the Hindu Marriage Act, 1955. The commission suo motu took up the study of the subject. It examined extant legislation as well as a number of judgements of the Supreme Court and high courts on the subject and concluded that “irretrievable breakdown of marriage” should be incorporated as a ground for granting divorce under the provision of the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954. The recommendation also requests that the court examine whether adequate financial arrangements have been made for the parties and children before granting a decree for divorce on the ground that the marriage has irretrievably broken down.

“This is not the first time that the Law Commission has made such a recommendation,” says Calcutta High Court advocate Protik Prokash Banerji. “In fact, it had in the late Seventies recommended the inclusion of the same ground in the Hindu Marriage Act. However, the recommendation was not implemented.” Will this recommendation meet the same fate? “Perhaps not,” says advocate Amjad Ali Sardar of the Calcutta High Court. “In those days divorce was taboo. But a lot has changed since then. Society is not the same nor are values. Today, the inclusion of such a clause will have its merit. If a marriage is already beyond repair, what is the necessity of keeping the tenuous legal relationship intact?”

“According to my experience, it’s best to sever a relationship if it turns sour,” says the Calcutta-based justice Malay Sengupta. “One can’t force a couple to stay together if one of the partners is not keen on keeping the promises exchanged. I personally feel that with changing times the divorce laws need to be modified. However, divorce on this ground should be granted only if the couple has cohabited for at least a year.”

Most legal experts also feel that it is difficult to get a divorce by proving grounds such as cruelty, desertion and others as mentioned in the two acts. “It is easier to get a mutual divorce where both partners want it. However, in most cases one of the partners contests the divorce. The irretrievable breakdown of marriage clause will make things easier in such cases. The procedure for seeking divorce under this ground remains the same, but this becomes an additional ground. This will be handy as it has been observed in many cases that a couple is just incompatible but since that is no ground for divorce, certain acts like cruelty, sodomy or mental abuse have to be proven and that can be difficult,” says Sardar.

Banerji, for one, does not believe in making it easier to get a divorce. “With the Indian divorce laws being quite rigorous, the divorce rate is quite low in our country. But once the recommendation gets approved the divorce rate will soar for sure. The irretrievable breakdown of marriage clause will make divorce easier, for then a partner will be able to get a divorce even if the other refuses to grant one.”

Marriage therapists too feel that the implementation of this clause would do more damage to the social fabric. Says Mumbai-based clinical psychologist and marriage therapist Seema Hingorrany, “Getting such a recommendation implemented would pave the way for an easy divorce. As it is, divorce rates are on the upswing and people are seeking divorce on flimsy grounds. This will just worsen the situation,” she says.

“Accepting this recommendation might lead to an increase in divorce rates,” admits justice Sengupta. “But the amendment will be keeping in sync with the changing times,” he points out.

The inclusion of this clause might not push up divorce rates but it will definitely make it a little easier for those who want to file for divorce.