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Irretrievable breakdown of Marriage as a ground of Divorce

Section 13 as it speaks does not includes irretrievable breakdown of marriage as a ground to sever the marital tie. However, the decision of Supreme Court and High Court in arriving at the conclusion as regards irretrievable breakdown of marriage shows a distinct shift from the conservatism of interpreting the section strictly, to a more liberal approach in granting a divorce on the finding of irretrievable breakdown of marriage. In Naveen Kohli v. Neelu Kohli AIR 2006 for the first time Supreme Court recommended that irretrievable breakdown of marriage be made a ground of divorce.

The history of Matrimonial litigation shows that earlier a conservative approach influenced the ground on which a divorce could be granted and the approach of the apex court was to preserve the marital tie. However, in the period of time, the apex began to move towards more liberal construction towards it. Earlier the judicial thinking being staid and conservative, it was felt that the material language of enactment was to be preserved. It was thought that if the court was prone to indulge in exposition, it would result into substitution of the legislative intent.

The recent development in the decision of the Supreme Court in Naveen Kohli is a shift towards a most realistic approach as is evident from its observation;

            “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 the society and the interest of the parties. By refusing to sever the marital tie the law in such case does not sever the sanctity of the marriage, on the contrary it shows scant regard for the feelings and emotions of the parties. The law connot turn a blind eye to such situation, nor can it decline to give adequate response to the necessities arising there from.”

The liberal approach of the Court draws it essence with great erudition and reminiscent of the words of Roscoe Pound in his treatise The Ideal Element in Law where it was mentioned;

            “the law must be stable and yet cannot stand still. Hence, all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change.”

Again the attention shall be drawn to the fact that the Marriage Laws (Amendment) Bill, 2010 was introduced in Parliament which seeks to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 to provide therein ‘irretrievable breakdown of marriage’ as a ground of divorce taken the fact that a decree of divorce, as a rule, operates from the moment it is pronounced. However, the bill is yet to become the law.

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