But allowing one of the parties to take a decision to end a relationship which is basically contractual, might lead to victimisation of the other party. It is indeed traumatic for a spouse to be forced to continue in a practically non- existent marriage but dissolving such a relationship without the consent of the other spouse, who might not be at fault, could amount to injustice.
The incorporation of this additional ground for divorce in the Hindu Marriage Act and the Special Marriage Act would, for the first time, allow a spouse to unilaterally seek dissolution of an unhappy marriage on the ground that it cannot be salvaged. At present, this is allowed only on faults of adultery, cruelty and desertion by the other party. There is no doubt that divorce based primarily on fault cannot deal with incompatible marriages but such situations are by and large taken care of by the provision permitting divorce with mutual consent.
The proposal might harm the institution of marriage and lead to victimisation of women. It empowers a court to allow an application for dissolution of a broken marriage if the parties had been living apart for three or more years.
However, there is a proposal for giving wives the exclusive right to oppose such petitions filed by husbands. Though this might benefit a certain class of women, it would hardly mean anything to a majority of women in the country.
There have been instances of women being turned out of matrimonial homes for a variety of reasons, especially for not bringing adequate dowry. Such cases seldom get reported, in the hope in the hope of reconciliation. Husbands, in such cases, would have an advantage with wives having nothing on record to repel the argument of irretrievable breakdown of marriage by him.
Thus, the benefits of the proposed amendments, in the absence of more safeguards, are outweighed by the dangers they pose. More so, when the existing provisions have already been able to substantially deal with the problem. A spouse can seek divorce on the ground of desertion if the other has abandoned him or her for over two years.
Mutual consent is the answer to the argument that a non- existent relationship should not be kept alive on paper. If a marriage breaks down, the parties to the marriage should jointly take a decision.
Leaving the decision to one of them would make all other provisions of divorce virtually meaningless.
A party would claim that the marriage has broken down rather than try to prove fault of the other party. The courts have already expanded the meaning of cruelty to include almost everything- denying sex, abusing, not staying with the husband and even refusing to cook food for the husband.
A case of irretrievable breakdown would squarely fall within the meaning of desertion and cruelty but a party at fault cannot seek divorce on these grounds. With irretrievable breakdown being added when desertion was already a ground for divorce, the former would have to be interpreted in a liberal manner.
In what could shed light on the problems in store, the Supreme Court in 2006 dissolved a marriage on the ground of irretrievable breakdown using its extraordinary powers of going beyond law under Article 142. Ironically, the husband, who knew the girl closely before deciding to marry, claimed that their marriage had broken down due to the basic difference in their social status and inability of the wife to adjust to a middle class life. Doesn't this make all inter- class marriages vulnerable? ' No fault divorce' would only increase the divorce rate in the country. This would have been fine if starting a new life was easy.
This is not so in a country where most marriages are arranged, Backing family ties, Justice Krishna Iyer, in a judgment in 1978, stressed that the erotic doctrine of 'sip every flower and change every hour' and the philosophy of philandering self- fulfilment had to be combated on a militant basis.
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