India has been a land of diverse cultures and houses one of the oldest religions globally, Hinduism. It also follows a mix of personal religious laws and municipal laws, which have governed the social and political domain of the citizens, even in the British Raj. Marriage is considered a sacrament rather than a mere contract in Hindu Laws of marriage that prevails over the entire community in the country.
The Hindu Marriage Act, 1955 was formulated based on principles emerging from the Vedic period and accommodated in the current laws as fundamental foundations. It intended to secure the bond of marriage among Hindus by listing down the rights, regulations, and obligations of the married couples, falling within the ambit of the Act. Since its adoption, the Act has undergone significant changes, such as the Amendment Act of 2010. However, there is a void in the efficacy of specific overlooked provisions in the Act requiring the primary focus.
The pandemic has exposed the social ties within the family to sour fatalities resulting in the creation of huge differences among the members, mainly among the spouses. Owing to the rate of arranged marriages, which often lack mutual understanding are often used as tools to cover up forced marriage, the probabilities of marital breakdown are consequently higher. Rising domestic violence and abuse cases within marital bonds have accelerated the demand for divorce proceedings in the courts.
Resorting to divorce in an unhealthy marriage was never considered the plausible solution ever since the Vedic period. However, with society being a much more complex social unit, it is widely advocated that divorce at present stands as a significant milestone in the acknowledgement and awareness of civil societies in terms of prevalent social norms.
Although various grounds for divorce have been enumerated in the Hindu Marriage Act of 1955, one such provision that requires our attention is the assimilation of 'irretrievable breakdown of marriage as a ground for divorce. In the simplest terms, it refers to a situation where a married couple has undergone adjustments but has subsequently failed upon a mutual compromise, which puts them divergent to each other, creating near impossibility to continue the marital bond further.
Over the period, divorce has been considered a threat to marriages' morality and divine status. Even contemporary legal jurists have posed criticisms to accommodate the irretrievable breakdown of marriage as a valid ground for divorce.
The advocates have backed up the plea in light of the 'No fault' theory of divorce. It refers to a condition where neither of the parties is at fault. Hence, the liability of restoration of marital obligations or the bond does not fall with either of the parties.
As early as 1978, the 71st Report of the Law Commission of India had taken up the prima facie questions on the validity of an irretrievable breakdown of marriage into consideration. It highlighted that such neglection of this provision amounts to injustice where none of the parties can be termed the aggrieved or the victim party.
The judiciary forms the backbone of a democratic state. Thus, it acts as a protector of the Constitution and the people. Following this principle, the Hon'ble Supreme Court of India had laid down the judgement in a case relating to irretrievable breakdown of marriage while exercising judicial activism. In the case of Sanghamitra Ghosh vs Kajal Kumar Ghosh, the hon'ble court exercising its jurisdiction under Article 142 of the Constitution of India, held-
"We are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact, there has been a total disappearance of emotional substratum in the marriage... the matrimonial bond between the parties beyond repair and that the marriage has been wrecked beyond the hope of salvage and therefore public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto."
Upholding the judgement in the landmark case above, the hon'ble court had also made a plea to the Union of India to incorporate it as a separate ground under Section 13 of the Hindu Marriage Act, 1955.
However, since the Supreme Court is the apex judicial institution, it has been given inherent powers to make justice by overriding the parliamentary legislation and need for justice. Thus, in light of this judgement, it must be clearly understood that such a power to grant a divorce on the ground of irretrievable marriage breakdown is not to be exercised by any court of law except the Supreme Court.
Prevention is better than cure, is one such norm that has been widely accepted in the best interests of all sorts of matters. Being regarded as a sacrament and upholding the divinity of a marital bond, the primary approach in marital differences should be focused on mutual compromise and adjustments and precautions to avoid situations where the differences create mountains between the spouses. The government should encourage social organisations to carry out legal and moral understanding and awareness of the marital obligations while addressing the parties' plea at a local confidential platform.
After that, if differences continue to exist despite appropriate mediation and encouragement for conciliation, the practicality and possibility of a healthy marriage appear vague. Thus, the only resort that remains is the judicial proceedings of divorce within the scope of irretrievable breakdown of a marriage. The Parliament must seriously consider the need to accommodate such a ground as valid for obtaining a divorce and the concerned ministries of Social Justice & Empowerment and the Ministry of Law. So that remedy can be awarded to the parties who have witnessed a helpless and unhealthy relationship.