Amendment Satisfies The Ground Of Reasonableness
Marriage Laws Amendment Bill-2010 Is Constitutionally Valid And It Is In The True Spirit Of Constitution Of India And Satisfies The Ground Of Reasonableness.
In introduction to 59th Law Commission of India Report, former Chief Justice of India Mr. P. B. Gajendragadkar observed:
“It may sound platitudinous but is nevertheless true that revision of law is must” in a dynamic society like ours, which is engaged on the adventure of creating a new social order founded on faith in the value system of socio – economic justice enshrined in our Constitution. With the changing times, notions of fairness and justice assume newer and wider dimensions and customs and beliefs of the people change. These in turn demand changes in the structure of law; every progressive must make a rational effort to meet these demands. Between the letter of the law and the prevailing customs and the dictates of the current value system accepted by the community, there should not be an unduly long gap.[1]Immigration Law Advice
Irretrievable Breakdown Of Marriage – Case Reference
In the case of Chandralekha Trivedi v. S.P. Trivedi[2], the Supreme Court has not used the term irretrievable breakdown of marriage but has defined that the marriage is ‘dead’. Husband initiated a divorce proceeding on the ground of cruelty and also wife’s intimacy with young boys, after the nine years of marriage. Wife also made similar allegations against the husband. Their only daughter was already married when High Court granted a divorce decree. On appeal, Supreme Court felt that it would be futile to decide the allegations and counter-allegations as the marriage became dead.
Constitutional Validity Of Sections 13 C, D, E
Section 13 C, D, E of the Marriage Amendment Act 2010 does not violate Article 14, 15 21 and 25 of Indian Constitution.
“The law cannot compel a woman, who is emotionally and mentally unable to cope with a marriage, to remain bound in wedlock to her spouse even when it is established that the marriage is dead. The compulsion upon wife to obtain the consent of the husband to maintain and prosecute a petition of divorce by mutual consent is violative of the principles of gender justice and thereby of the Article 14 and 21 of the Constitution,”[3]
It has been observed that the parties who have filed petition for mutual consent suffer in case one of the parties abstains him or herself from court proceedings and keeps the divorce proceedings inconclusive.[4]
Gender Neutrality And Equality Principles
Section 13D Amending of the Marriage Laws Amendment Bill, 2010 is gender neutral. There is a very severe and disturbing trend these days to create duplicate laws in the Gender area when existing laws serve the same purpose.
Multiple Maintenance Laws Used By Litigants
| Law | Provision Used for Maintenance |
|---|---|
| Hindu Marriage Act 1955 | Section 24, Section 25 |
| Criminal Procedure Code | Section 125 |
| Domestic Violence Act | Section 12 |
| Hindu Adoption and Succession Act | Section 18 |
Most litigants use at least 3 at any time to maximize their gains from misusing maintenance laws. But under this Amendment any one of the party can ask for the divorce on the ground of irretrievable breakdown of marriage. Which itself says it is in accordance with Article 14 of the Indian Constitution which talks about equality. Further as this law is gender neutral it also satisfies Article 15 of the Indian Constitution which says for no discrimination.
When either party is entitled to file a petition for a decree of divorce but unfortunately it may take five to ten years for a petition to be decided. But the prime of the life of the couples is thus wasted in courts to obtain a final verdict!!![5]
If the parties have been living separately for a long period, there is sufficient proof of irretrievable breakdown. Even if the parties are brought together by certain pressures, like pressure by parents / elders / well wishers, they cannot lead a happy life as the long separation becomes the genuine course of suspicion among the parties.[6]
Wife and Husband in many cases approach different Courts stating that they are being forced to live in an unhappy and unwanted marriage which violates fundamental right to live life with dignity, guaranteed by Article 21 (right to life) of Constitution”. Hence this Act is the solution to their problems therefore this amendment Act is constitutionally valid and is in accordance with Article 21 of the Constitution.
Protection In Mutual Consent Cases
The Act would provide safeguards to parties to marriage who file petition for grant of divorce by consent from the harassment in court if any of the party does not come to the court or wilfully avoids the court to keep the divorce proceedings inconclusive[7]
Article 25 And Social Reforms
According to Article 25 of the Indian Constitution sates about Freedom of Conscience and Religion but it also states about the Social Welfare and Reforms[8]
Need For Continual Social Reform
The story of social reform involves reform in personal law. It is an unending story. It continues from generation to generation. Each generation contributes to the continuance of an effort of the social reform, but the effort is never concluded and the end is never reached in the sense that no further attempt to reform is required. “To survive, we need a revolution in our thoughts and outlook. From the altar of the past, we should take the living fire and not the dead ashes. Let us remember the past, be alive to the present and create the future with courage in our hearts and faith in ourselves”[9]
At present, various grounds for dissolution of marriage by a decree of divorce are laid down in section 13 of the Hindu Marriage Act, 1955. The grounds inter alia include adultery, cruelty, desertion, conversion to another religion, unsoundness of mind, virulent and incurable form of leprosy, venereal disease in a communicable form. This Amendment is just adding one more Ground for divorce which is already a ground. Nobody thought much about the fact that divorce by mutual consent, sold to us as a recent ‘modern’ invention, has in fact always been an integral part of traditional Hindu and other personal laws, including Muslim law.[10]
Introductory Observation By Justice V. R. Krishna Iyer
The glorious words of a progressive judge, Justice V. R. Krishna Iyer are immortal:
“Daily trivial differences get dissolved in the course of time and may be treated as the teething trouble of early matrimonial adjustment. While the stream of life, lived in married mutuality may wash away small pebbles what is to happen if intransigent incompatibility of minds breaks up the flow of the stream? In such a situation we have the breakdown of a marriage itself and the only course left open is for law to recognize what is a fact and accord a divorce”.
Supreme Court Recommendation On Hindu Marriage Act
Naveen Kohli v. Neelu Kohli
Recently the Supreme Court Naveen Kohli v. Neelu Kohli[11] has recommended an amendment to the Hindu Marriage Act, whereby either spouse can cite irretrievable breakdown of marriage as a reason to seek divorce.
Expressing the concern that divorce could not be granted in number of cases where marriages were virtually dead due to the absence of the provision of irretrievable breakdown, the court strongly advocated incorporating this concept in the law in view of the change of circumstances.
After referring the matrimonial laws of various countries and reports including one by eminent international jurist Salmond who held that, divorce should be seen as a solution and escape route of a difficult situation, the Bench comprising Justice B. N. Agarwal, Justice A. K. Mathur and Justice Dalveer Bhandari said, we have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of the fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of separation it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever the tie the law in such cases do not serve the sanctity of marriage, on the contrary, it shows scant regard for the feelings and emotions of the party.
Apex Court’s View
The Supreme Court held that in our considered view, looking to the peculiar facts of the case, the High Court was not justified in setting aside the order of the trial court. The apex court further observed, in our considered opinion, wisdom lies in accepting the pragmatic reality of life and take a decision which would ultimately be conducive in the interest of both the parties’’. The Court observed that public interest demands that the married status should, as far as possible, as long as possible and whenever possible, be maintained. However, where a marriage has been wrecked beyond any hope of being repaired, public interest requires the recognition of the fact. The judgment notes that there is no acceptable way in which a spouse can be compelled to resume life with the consort and that situations causing misery should not be allowed to continue indefinitely and that law has a responsibility to adequately respond to the needs of the society.
Cases Where Divorce Was Refused
- Smita Dilip Rane v. Dilip Dattaram Rane[12]: divorce denied in absence of statutory provision.
- Suresh Prasad Sharma v. Rambai Sharma[13]: divorce refused on plea of absence of irretrievable breakdown ground.
Shift Towards Liberal Judicial Approach
V. Bhagat v. D v. Bhagat[14]
The apex court observed that irretrievable breakdown of the marriage is not a ground by itself. But while ascertaining the evidence on record and determining relief, the circumstances can certainly be considered.
Sanghamitra Singh v. Kailash Singh[15]
The husband sought divorce; wife disclosed second marriage by husband. Granting divorce, the court stated:
‘Whether the husband has married for second time or not, it is now clear that the marriage has irretrievable broken down and none of the parties wants restoration of marital tie…. Accordingly by applying the doctrine of irretrievable breakdown, we grant a decree of divorce upon consent of both the parties.
Krishna Banerjee v. B. Bandopadhay[16]
Where the husband suffered physical and mental cruelty and they were living separately for 16 years, divorce was granted as marriage had broken down.
It is significant to note that where a party is in an advantageous position due to his/her own wrong, the court would not dissolve the marriage solely based on breakdown pleas.
Rationale Behind Doctrine
In situations absolutely beyond repair, it would be futile to keep the marital tie alive. Here the ground of irretrievable breakdown is really needed.
Social & Legal Perspectives
Jyotsna Chatterji, director of the Joint Women’s Programme said:
“This will make it possible for couples who have decided on divorce by mutual consent to be granted a swift divorce. It will help prevent the retractions, lies, etc. which happens in case of long delays.”
Justice Krishna Iyer observed that when marriage breaks down completely and there is no possibility of any return, the only remedy left is divorce. To quote:
“While there is no rose but has a thorn, if what you hold, and no rose, better to throw it away”.
End Notes:
- Available at http://www.ourkarnataka.com/Articles/law/irretri.htm
- (1993) 4 SCC 232
- Smiriti Shinde case – Available at http://feministmedia.wordpress.com/2009/12/17/double-standards-of-the-supreme-court/
- Smita Dilip Rane v. Dilip Dattaram Rane (AIR1990 Bom.84)
- Available at http://www.sherrylegal.com/articles/7/hindu marriage law amendment bill 2010.pdf
- Ibid
- Available at http://www.sherrylegal.com/articles/7/hindu marriage law amendment bill 2010.pdf
- Comissionaer of Police V. Acharya Jagdish Verdhan (2004) 12 SCC 770
- Ratilal Panchanan Gandhi V. State of Bombay (1954) SCR 1055
- See JDM Derrett ‘Divorce by caste custom’, in (1963) 65 Bombay Law Reporter, Journal section, pp 161–169. Nuala Mole Immigration: Family Entry and Settlement (Bristol, Jordan & Sons, 1987, esp pp 39–44).
- 2006(3) SCALE 252
- (AIR1990 Bom.84)
- (1999) DMC311(MP)
- (AIR1994 SC710)
- (AIR2001 Ori.151)
- (AIR2001 Cal.154)
Written By: Anooja Srivastava, 5th year B.A LL.B New Law College Bharati Vidyapeeth University
Updates: Marriage Laws (Amendment) Bill, 2010
Irretrievable Breakdown • Sections 13C–13E • Reasonableness
This section adds up-to-date clarifications you can insert into your article titled: “Amendment Satisfies The Ground Of Reasonableness – Marriage Laws Amendment Bill-2010 Is Constitutionally Valid And In The True Spirit Of the Constitution of India.”
“It bears emphasis that although the Rajya Sabha passed the Marriage Laws (Amendment) Bill, 2010 in August 2013, the proposed insertions of sections 13C, 13D and 13E into the Hindu Marriage Act, 1955 have not been brought into force. The amendments therefore remain prospective. Even so, their structure—requiring a minimum of three years’ separation, permitting either spouse to petition, and enabling opposition on grave financial hardship—reflects a calibrated effort to align matrimonial relief with constitutional commitments to equality, non-arbitrariness and dignity. Once enacted, these provisions would give principled recognition to irretrievable breakdown while safeguarding vulnerable parties and the best interests of children, thereby satisfying the ground of reasonableness.”
Current Status of the Bill
Important clarity: The Rajya Sabha passed a revised version of the Bill in August 2013. However, the Lok Sabha did not complete passage. As a result, the proposed insertions—Sections 13C, 13D, 13E (Hindu Marriage Act, 1955)—have not been brought into force. Any analysis of their constitutional validity should be framed as prospective (i.e., assessing the reasonableness of the proposal), not as currently operative law.
- Introduced: 4 August 2010 (Lok Sabha)
- Passed (with amendments): Rajya Sabha, 26 August 2013
- Status: Not enacted/operational; the HMA does not presently contain 13C–13E.
Key Features Proposed in the Bill (for your analysis)
| Provision | What it Proposed | Safeguards / Thresholds |
|---|---|---|
| Section 13C Irretrievable Breakdown of Marriage | Adds a new ground of divorce recognizing marriages “broken down beyond repair.” Either spouse may file (gender-neutral filing). | Separation requirement: parties must have lived apart for a continuous period of ≥ 3 years immediately before the petition. Short reconciliation (≤ about three months) would not defeat continuity (as proposed). |
| Section 13D Opposition on Financial Hardship | Gives the wife a right to oppose dissolution if it would cause grave financial hardship. | Acts as a protective screen to prevent disproportionate economic harm. Raises a discussion point on Article 15 (permissible protective classification vs. gender neutrality). |
| Section 13E Children’s Interests | Addresses protection/arrangements affecting children, ensuring their interests are considered within any decree. | Aligns with constitutional principles of dignity and best interests of the child. |
Related Tuning to Mutual Consent Divorce
- Streamlining of mutual consent timelines was proposed to reduce in-court delay and prevent proceedings being kept inconclusive by non-cooperating spouses.
Constitutional Reasonableness & Validity (How to update your argument)
Article 14 / 15 (Equality & Non-Discrimination):
- 13C allows either spouse to file — supports gender neutrality and parity.
- 13D (wife’s hardship shield) can be justified as a protective measure given socio-economic asymmetries, but do flag the debate on symmetrical protection.
Article 21 (Dignity & Autonomy):
- Recognizes “dead marriages” and prevents indefinite prolongation of misery.
- The 3-year separation threshold balances marital sanctity with personal liberty.
Reasonableness Safeguards to Mention
- Objective threshold (continuous separation) to avoid impulsive dissolutions.
- Financial-hardship screen to prevent inequitable outcomes.
- Children-centric guardrails under the proposed 13E.
Practical / Implementation Points (for your “reforms gap” theme)
- Evidentiary issues: proving “living apart,” and how courts treat brief attempts at reconciliation within the 3-year window.
- Delay problem remains: absent enactment, litigants rely on existing grounds or limited Supreme Court relief in exceptional cases.
- Policy calibration: whether a fixed 3-year period is too long in clear “dead marriage” scenarios—invite reform-minded debate.
Quick Drop-In Summary (for editors)
- Status: 13C–13E are proposed, not currently in force.
- Threshold: ≥ 3 years continuous separation (with narrow tolerance for brief reconciliation).
- Protection: Wife’s right to oppose on grave financial hardship; children’s interests addressed.
- Constitutional fit: Strengthens Articles 14, 15 (with reasoned protective classification) and 21 (dignity/autonomy).
- Editorial cue: Frame analysis as prospective validity and reform rationale; add jurisprudence references (e.g., Naveen Kohli v. Neelu Kohli) to show the judicial impetus.
