Print Friendly, PDF & Email

Grounds for divorce under Hindu law.

Topics Covered: Separation of powers between various organs dispute redressal mechanisms and institutions.

Grounds for divorce under Hindu law.

What to study?

For Prelims: What is “irretrievable breakdown of marriage”? Article 142.

For Mains: Concerns and Issues surrounding, need for UCC.

Context: Last week, the Supreme Court used extraordinary powers under Article 142 of the Constitution to grant divorce in a case of “irretrievable breakdown of marriage”.

What is “irretrievable breakdown of marriage”?

The situation that exists when either or both spouses are no longer able or willing to live with each other, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties.

Currently, Hindu marriage law does not include “irretrievable breakdown of marriage” as a ground for divorce. However, the apex court in a number of cases has provided the said relief using its extraordinary powers that allow it to do “complete justice”.

What are the grounds for divorce under Hindu Law?

The Hindu Marriage Act, 1955, lays down the law for divorce, which applies to Hindus, Buddhists, Jains, and Sikhs.

  1. Under Section 13 of the Act, the grounds for divorce include: “voluntary sexual intercourse with any person other than his or her spouse”; “cruelty”; desertion “for a continuous period of not less than two years immediately preceding the presentation of the petition”; “ceas(ing) to be a Hindu by conversion to another religion”; and being “incurably of unsound mind”.
  2. In addition, Section 13B provides for “divorce by mutual consent”.
  3. Section 27 of The Special Marriage Act, 1954 provides the grounds for grant of divorce in the case of marriages solemnised under that Act.

However, neither of the two Acts provide for “irretrievable breakdown of marriage” as a ground for divorce.

What’s the case now?

Recently, divorce was granted on the ground of irretrievable breakdown of marriage by the Supreme Court (Under Article 142), after examining various judicial pronouncements. It has been noted that such powers are exercised in rare cases, in view of the absence of legislation in this behalf, where it is found that a marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably.

In the present case, the court said that it believed that “not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties”, and “the sooner this comes to an end, the better it would be, for both the parties”.

Article 142:

Article 142 “provide(s) a unique power to the Supreme Court, to do “complete justice” between the parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case.

Suggestions made by the Law Commission:

The Law Commission of India has twice recommended that “irretrievable breakdown” of marriage be included as a new ground for granting divorce to Hindus under the provisions of the Hindu Marriage Act and the Special Marriage Act.

Sources: the Hindu.