There seems to be a touching but misplaced belief in the legislative mind that marriages are made in heaven and shouldn't be allowed to break down. To promote this concern, our lawmakers have enacted many laws, some of which can arguably be called discriminatory, to keep the knot intact — come what may. Which of these laws are perceived to be discriminatory is a subject that has been argued and debated upon often enough.

But the issue is whether lawmakers have the competence to keep the nuptial knot intact in cases where the spouses don't see eye-to-eye. They don't want to live together, but they have to because the Hindu Marriage Act doesn't provide them the relief to live in peace and in their own space. Who'll decide when a marriage is 'irretrievably broken'? The law or the court?

The Law Commission's suggestion is to make 'irretrievably broken down' a ground for divorce. But the government doesn't want to consider this despite a number of judicial pronouncements expressing concern for spouses living in hell due to this major legal lacuna.

It's ironic that a Family Court doesn't have the power to pass a decree on a petition for mutual divorce under Section 13-B of the Hindu Marriage Act, 1955 when one of the spouses withdraws consent to the consent earlier singed by him or her.

They are forced to level severe charges against each other for securing divorce. It leads to acrimony, resulting in criminal cases and character assassination. Criminality does enter the space and couples living under forced circumstances at times resort to extreme steps that only a class one enemy wouldn't mind taking. That absurd unlawful situation must be avoided.

"While it's the obligation of the court to keep a marriage alive,'' says the apex court in another judgment demonstrating helplessness in granting speedy justice to litigating couples, "when the marriage is totally dead, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist'".

Keeping separated couples tied in litigation would be "a cruelty to them and gives rise to crime and even abuse of religion to obtain the annulment of marriage. The parties alone can decide whether their mutual relationship provides the fulfillment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation," the judges added.

A husband who had been deserted by his wife seven years ago rushed to the Supreme Court making fervent appeals for a divorce. A High Court or a Family Court doesn't have the power to grant relief in such a situation when the wife refuses to abide by her mutual consent despite having gained assets and property from her consenting husband. The High Court had rejected his plea and asked him to return to the Family Court with a fresh round of time-consuming litigation.

Only the Supreme Court enjoys the power to grant a decree of mutual divorce on account of the fact that it was not possible for the spouses to live together, that too under the exclusive power of Article 142 of the Constitution, which makes it mandatory for all the authorities and individuals to execute its orders at every cost.

In 1997, the court for the first time relied on the grounds of irretrievable breakdown of marriage and held that "no useful purpose would be served in prolonging the agony of the parties in a marriage that has broken down irretrievably... the curtain has to be rung down at some stage''.

This observation drove the Law Commission to ponder over this aspect of marriage, which is also defined as an 'institution'. The Commission wants to add this ground to the Hindu Marriage Act and the Special Marriage Act "keeping in mind changing social trends''. Neither of the two laws provide irretrievable breakdown of marriage as grounds for divorce.

It may be recalled that the apex court last year held that "A marriage which is dead emotionally and practically shouldn't be allowed to continue for namesake as that would be a cruelty on the estranged couple".

There is no dearth of legal support for the government and Parliament in taking a positive look at the Commission's suggestions. Only legislative blessings are needed to lessen the trauma of estranged couples, and why not when the chief justice of India has said that family and matrimonial disputes are responsible for adding to the burden of the backlog of cases in our courts.

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