The Hindu Marriage Act,1955

[Cites 28, Cited by 0]

Law Commission Report

The Hindu Marriage Act,1955

LAW COMMISSION OF INDIA

SEVENTY-FIR ST REPORT

ON

THE HINDU MARRIAGE' ACT, 1955-
IRRETRIEVABLE BREAKDOWN OF
MARRIAGE AS A GROUND OF
DIVORCE

April, 1978



CHAIRMAN

LAW COMMISSION
GOVERNMENT OF INDIA
April 7, 1973.

My dear Ministe r.

1 forward herewith the Seventy--ﬁrst Report of the Law
Commission of India concerning amendment of the Hindu
Marriage Act. 1955 whereby irretrievable breakdown of
marriage is sought to he made :1 ground of divorce.

The ﬁrst Chapter of the Report sets out the circumstances
in which the matter was taken up for consideration by the Law
Commission. After taking up the matter, the Commission issued
a questionnaire inviting views of interested parties and bodies
on the salient points arising for consideration.

On receipt of the replies to -the questionnaire, 3 draft Report
was prepared and discussed at length before being put into the
ﬁnal shape.

I place on record my appreciation Of the valuahie assistance
received from Shri P. M. Bakshi, Member--Secretary of the Com-
mission in the preparation of the Report.

With regards,

Yours sincerely,
Stir"
(H. R. K]1annaJ

Hon'ble Shri Shanti Bhushan
Minister of Law, Justice 8: Company Aﬁairs,
New Delhi-11000].



CONTENTS

PAGE
CHAPTER 1 Introductory . . . . . . . . 1
CHAPTER 2 Present law and current theories of divoncc . . . 5
CHAPTER 3 Irretrievable breakdown : the theory . . . . 11
Cl-IAP1'ER 4 Merits and demerits of the theory ofirretrievablc breakdown 14
CHAPTER 5 Retention of other grounds of divorce . . , 2|
CHAPTER 6 The requirement of living apart . . . . 24
CHAPTER 7 Safeguards . . . . . . . . 30
CHAPTER 3 Recommended amendments . . . . . 40

APPENDIX

AH-BNDIX Questionnaire issued by the Law Commission of I_ndia on
the subject pf irretrievable btigakdown of rnarnage as a
ground of divorce under the Hmdu Marriage Act. , 44



'lN"l"RODUC'[1)RY

1.1. This Report deals with an important question conce:rn-- ['1"'°d"'3*°'3'
ing -the Hindu Marriage Act, 1955, namely, should the irre-

trievabic breakdown of marriage be made a ground for divorce

under that Act and if so, to what extent and subject to what
conditions '3 The matter has been taken up by the Law Com-

mission as a result of a reference made by the Government of

India in the Ministry of Law. Justice and Company Affairs'-.

1.2. irretrievable breakdown of marriage is now considered,11"°"i°V3bl¢
in the Laws of a number of countries, a good ground of disso1~ h'°"'kd°"""
ving the marriage by granting a decree of divorce. The Delhi

' High Court in a Full Bench decision in Ram Kali' v. Gopal Dru'-',

took note of the modern trend not to insist on the maintenance
of a union which has utterly broken down, and observed :

"It would not be practical and realistic approach,
indeed it would be unreasonable and inhumane, to com-
pel the parties to keep up the facade of marriage even
though the rift between them is cornpiete and there are
no prospects of their ever living together as husband and
wife."

In the case of Bfum v. BIrmF3, Viscount Simon, L.C., while
specifying the considerations which should prevail in matri-
monial matters, observed :

"To these four considerations I would add a ﬁilth
of a more general character, which must indeed be re-
garded as of primary importance, viz., the interest of the

"community at large, to be judged by rn-aintaining a true
balance between respect for the binding sanctity of
marriage and the social considerations which make it
'contrary to public poiicy to insist on the maintenance of
" -' a union which has utterly broken down. It is noteworthy

I Name 0-Fthe Minister for Laws. Justice and Company Aﬁairs dated 3rd
November, 197'! recorded -in Legislative Department File No. F. l4(4),f68-
Leg. II', Vol. XII. page 27.

I Ran: Keir'. v. Gtrpaf Das, (1971) r.L..R. 1 Delhi to (F.B.].

,, _¥-atqn: v. arm. (1943: 2 All. E.R. 76. 78 ti-I.L.).



Suggestion
anal)-'sed.

2

that in recent years this last consideration has operated
to induce the Courts to exercise a favourable discretion
in many instances where in an earlier time a decree would
certainly have been refused."

The British Parliament has since then enacted the Matri-
monial Causes Act, 1973 [which replaces the Divorce Reform

Act, 1969). According to section 1 of that Act, a petition for.

divorce may be presented on the ground that the marriage has
broken down irretrievahly.

1.3. A suggestion has been made by a distinguished jurist to
the effect that the following ground of divorce should be added
to section 13(1) of the Hindu Marriage Act, 1955 :------

"That the marriage has irretrievably broken down
and that the parties had been living apart for a period,
not less than ﬁve (or ten) years, immediately preceding
the presentation of the petition."

It has been stated in support of this suggestion that the
Hindu Marriage Act of 1955 has proved to be inadequate to
deal with the question where the marriage has proved to be a
complete failure, and that a social reform is imperative in the
ﬁeld. Proof of -such a breakdown would be that the husband
and wife have separated and have been living apart for, say.
a period of ﬁve or ten years and it has become impossible to
resurrect the marriage or to re--uni1:e the parties. It is stated
that once it is known that there are no prospects of the success
of the marriage, to drag the legal tie acts as a cruelty to the
spouse and gives rise to crime and even abuse of religion to ob-
tain annulment of marriage. It is further pointed out that the
Muslim, Christian and Parsee marriage laws allow divorce more
easily than the Hindu law and it is only the Hindus who are
put under severe restrictions and have to resort to conversion
in several cases. This social discrimination in personal life
ought to he removed, particularly in View of the fact that many
Hindu marriages are brought about at an early age without
the consent of the parties and, in consequence, break down at
a later stage. Finallv, it is stated that the Hindu law of divorcg
5h°"1d '39 iibefﬂlisﬁd and brought in conformity with the modern
trends in Europe and elsewhere, as well as with the law appli-
cable to the other communities in the country. The Suggestion
sums up the essence of the proposal in these terms :--

:'T'he essence of the proposal is that the Hindu
marriage should be allowed to be dissolved if the husband



3

and wife have lived apart for a period of say 5.519 F5313

and the marriage is irretrievably broken due to incom-

patibility, clash of personality or similar other reasons,

as is permissible under many systems of law of advanced

oountries."
1.4. The suggestion has raised an important question CoI1'- F""'11"1"'3'1"",J
cerning section 13 of the Hindu Marriage Act, 1955. The Act §;;'::t;:§1ni?,
came up for consideration before the Law Commission a few t=aSTR£PD1't-
years ago', but the question of introducing breakdown of mar-
riage as a ground of divorce was not' before the Commission.
Such reference to, or reliance on'-', the breakdown principle as
occurred in the Report was only incidental.

No doubt, the consideration that it is impossible to con-
tinue the marriage relationship underlies many of the speciﬁc
grounds of divorce provided in the present Act. But, in itself.
it is not a ground of divorce under the Act. In this sense, the
suggested provision raises an important question.

1.5. The relevant provisions of the Hindu Marriage Act re- Hindu
garding divorce. are contained in sections 13, 13A and 13B. TtMﬂf1'ia3i=
may be mentioned that section 1313 provides for a decree of di-' ct
voree by mutual consent. and was inserted in 1976.

A petition for divorce on the ground of irretricvable
breakdown of marriage as visualised by us would not make it
necessary for the court to go into the question as to which party
was at fault before granting a decree of divorce, and it would be
enough to prove that the relations between husband and wife
have reached such a breaking point that there is no possibility
of reconciliation. This would obviate the necessity of producing
evidence of acrimony and other incidents during the married
life, some of which the parties may not like to reveal.

1.6. Before taking any further action on the suggestion that Question-
irrctrievable breakdown of marriage should be made a ground name'
for divorce, we considered it appropriate to invite views on the

matter by issuing a brief Questionnaire-3. We are grateful to all

those who have expressed their views in response to our
Questionnaire.

I 59131 E61301'! 0F the Law Commission (Hin--du Marriage Act. I955 and
Special Marriagﬂ Act. 1954}, (March, 1974).

' 5931 Rﬁliﬂrl Di 'Ii'I= Law Cornrnission (Hindu Marriage Act,1955 and
Spe:ial' Marriage Act, 1954), page 12. para L20; page 22, para 218 and page
66, para 'i".5.

' See Appendix



Schlime of
discussion.

4

1.7. The scheme of our discussion will be as follows :-- -

We shall first examine the present grounds for divorce
under the Hindu Marriage Act. We shall then deal with the
theory of irretrievable breakdown and consider the merits and
demerits of the theory. in case the theory of irretrievable break-
down is to be adopted, the question would fall to be considered
whether the other grounds of divorce should be retained, or
whether merely the broad and exclusive category of irretrievable
breakdown should be substituted as absorbing the grounds al-
ready provided in the law. We shall deal with that question
in due course.

If the printsiplc of irretrievable breakdown is adopted.
the next question will be how exactly to incorporate it into the
Act.

We will also examine the question whether the introduc-
tion of such :1 ground should be coupled with any safeguards.



CHAPTER 2

PRESENT LAW UNDER THE HINDU MARRIAGE ACT

2,]. The present statutory law relating to grounds of divorce Fr-esenllaw

. . . _ . . under the
as applicable to Hindus IS contained Iﬂ sections 13. HA and H-mm]
13B of the Hindu Marriage Act, 1955. In section 1341111 and Marriage
I3(1A]". certain grounds are mentioned in which either the Ad'
husband or the wife can seek dissolution of the marriage. ln sub-
section (El of section 13. certain additional grounds?' are laid
down in this behalf which can be made use of by the wife only.
Section 1313 is_a special provision inserted recentlgit to provide
for divorce by consent after living apart for one year. In this
case. the law requires :1 joint petition by both the parties.

The grounds for divorce under the Hindu Marriage Act
reﬂect, in the main, three categories of grounds. The ﬁrst is the
traditional lheory of matrimonial fault. The second is the
theory of Friistration by reason of speciﬁed circumstances.
The third is the theory of consent. There is. however. no
theory of breakdown of the marriage,----e:rc;ept to a very iimited
extent as will he mentioned in due course.5

2.2. It may be convenient to set out very brieﬂy the present P T
grounds of divorce under the Act. Section 13(1) of that Act-- ,,§,§§;"}'f,,,
to state the gist--allow's divorce on a petition presented by ""45" ""3

eitfrer spouse on the ground that the other part-y-- Eil-;l1'j1-'ijage
Act,]955i
. . . . t'
(1) has, after the solemnization of the marriage. Siascillij-H

had voluntary sexual intercourse with any person other
than his or her spouse'. or

(ii) has, after such solernnization, treated the peti-
tioner with cruelty ; or

u___.

' Nine grounds in section t3(l')' see paragraph 2.2, infra.
' Two grounds in section 13[lA)_ See parag-apt: 13, inf,-,3.
' Four grounds in section 130.3. Sec paragraph 2.4. iuﬁ-2.
' See paragraph 2. 5. inﬁa.

' Paragraphs 2.3 and 2.5, infra.



Section
13(1A)

6

(iii) has deserted the petitioner for a continuous
period of not less than two years immediately preceding
the presentation of the petition; or

(iv) has ceased to be a Hindu by conversion to
another religion; or

(v) has been incurably of unsound mind, or has
been suffering continuously or intermittently from mental
disorder of such a kind and to such an extent that the
petitioner cannot reasonably be expected to live with
the respondent; or

(vi) has been suffering from a virulent and incur- able form of leprosy; or

(vii) has been suffering from veneral disease in a communicable form; or fviii) has renounced the world by entering any religious order; or

(ix) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.

There are two Exptanations, explaining the meaning of the expressions "mental disorder" and "desertion", which are not material for the present purpose.

a decree of 2.3. A petition for dissolution or marriage by under section divorce can also be presented by either party 1231' IA) of the same Act on the ground--

(1) that there has been no resumption. of cohabita- tion as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

2.4. Besides this, under section 13(2) the wife may also "present a petition for dissolution of her marriage on the ground that the marriage was solernnized before the commencement of the Act and that, the husband had married again before 'such commencement, or that the husband had, since the so1emniza- tion of the marriage, been guilty of rape, sodomy or bestiality, or that there has been passed a decree or order for maintenance against the husband notwithstanding that the wife was living apart and that since the passing of the decree or order, cohabi- tation between the parties has not been resumed for one year or upwards, or that her marriage (whether consummated or not) was solemnized before she attained the age of ﬁfteen years and she had repudiated the marriage after attaining that age (15 years), but before attaining the age of eighteen years.

2.5'. It may be noted that although traces of the concept of breakdown of marriage could be found in the special provi- sion for dissolution of marriage by decree of divorce at the instance of either party under section 13:,' IA) summarised above} it is an essential condition of the application of that sub--sectio11 that the proceedings for divorce must have been preceded by either a decree for judicial separation or a decree for restitution of conjugal rights, A decree for judicial sepa- ration, in its turn, could not have been passed? unless circum- stances which prove what may be called marital offence or marital disability were established. In this sense, a petition for divorce under section 13l[lA) indirectly brhigs in a considera- tion of fault or disability.

Similarly, a decree for the restitution of conjugal rights could not have been passed unless it has been proved that the respondent had "without reasonable excuse" withdrawn from the society of the other. Thus, a petition under section l3(lA], in so far as it is based on a prior decree of restitution, also in- volves consideration of fault.

Section 13B provides for divorce by mutual consent by bringing in the concept of divorce dc hers any fault of a party. All that is necessary in such cases is that there should be a peti- tion for dissolution of. marriage to be presented together by both the parties to a marriage, on the ground that they have been ' Para 2.3, supra.

' Section 10, Hindu Marriage Act, 1955. ' Section 9 Hindu Marriage Act, 1955.

Section 13(2).

How far concept of breakdown adopted In section l3(lA).

Various theories of ti ivorce 8 living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. After the pre- sentation of the petition, on a motion of both the paxties matit not earlier than six months and not later than eighteen months after the date of the presentation of the petition, if the petition is not withdrawn in the meantime, the court shall, on being satisﬁed after hearing the parties md after making such In- quiries as it thinks ﬁt about the correctness of thc avermenta in the petition. pass a decree of divorce.

The legislature in India has not. as yet. adopted provision directly and speciﬁcally granting divorce on ground of irretricvabie breakdown of the marriage.

any the 2.6. On a broad conspectus of the grounds of divorce in various countries. it would appear that divorce has been grant- ed on several theories. There is. in the ﬁrst place, the theory of divorce on the ground of fault. which is one of the principal theories adopted in the Hindu Marriage Act. 1955. illustra- tions of this theory in that Act are the legally recognised grounds of 2lCl'LlllCTj.F. cnnclty, and descrtion' and (on a wife's petition) bigamy, certain sexual offences and failure to pay maintenance."

Nest. there is the theory of divorce -on the basis of what may be broadly described as frustration of the rnaritnl relationship by supcrvening circumstances of a speciﬁc nature. They may arise circumstances whic]3__ though not con- stitnting fault on the part of any party, render dissolution of the marriage necessary since. by reason of these sup-erven-- ing circumstances -which do not amount to matrimonial fault. a material change is introduced.

Examples of this theory are furnished by the grant of divorce in the Hindu marriage Act on the ground of----

lfa) conversion of the other spouse,' Eb) in-sanity,' (:2) disease?

1 %tion i3[l')(i). [in]: and {lb}. Hindu Marriage Act, 1955. ' Section ]3['2](:}. (ii) and (iii). Hindu Marriage Act. 1955. 3 Section ].'i(1}(ii_}. Hindu Marriage Act, 1955.

' Section l3(1',ILii'J. Hindu Marriage Act, 1955.

5 Section 13[I)[iv) Sc (vi. Hindu Marriage Act, 1955.

{rd} renunciation of the world by the other spouse,' * te} absence of the other spouse for :1 long period.'-' It may be added that divorce is also granted on the basis of what may be called "securing conformity with the legal system". Where a marriage does not, in certain respects, corn- ply with the requirements laid down by the law, the legislature. in its wisdom may allow the grant of divorce, instead of a provision for nallifying the marriage. An example of it is far- nished by the grant of divorce if at the instance of the wife] on the ground that the age of the wife was below the statutory minimum at the time of the marriage" a ground introduced in the Hindu Marriage Act by a recent amendment.

Next, in some legal systems divorce is granted on de- mand, the theoretical assumption being that consent given to the marital relationship is revocable and can be revoked without the necessity of showing fault or other supervening circum- stances.

Marriage is viewed in a number of countries as a con- tractual relationship between freely consenting individuals,'*---'* A modiﬁed version of the basis of consent is In be found in the theory of divorce by mutual consent."

The basis in this case is also consent. but the 1'c\-'t1-ca- tion of the relationship itself must be consensual. as was the original formation of the relationship. The Hindu Marriage Act, as amended in 1976, recognises this theory in section 1313 None of these theories is based on the breakdown of the relationship, in the sense in which it is understood in 1 Section !'_l(l}{viJ. Hindu Marriage Act. 1955. 'Section I}{l]I[viil. Hindu Marriage Act, 1955.

' Section l3l[11lr{i'~"], Hindu Marriage Act, 1955.

' Sec -e.g.. New York Domestic Relations Law (McKinney I964}, section 10, which provides that marriage "so tar as its validity in law is concerned. oontinues to he a |2l_'\.']l contract. to which the consent of parties capabte of making a contract is essential." See note, "Patterns of Divorce F.et'o-rm"

(19Tl-72) 5? Cornell Law Review, 649 fn. 1.

M9' NOW. "Patterns of Divorce Reform" (1971-T2) 5? Cornell Law Review ' Section l3B. Hindu Marriage Act. 1955.

Contract with the theory of breakdown.

modern times, even Where it can be said that these theories and the breakdown theory have oertain common elements.

2.7. In contrast with all these theories, the distinctive feature of the theory of breakdown of marriage, as visualised by us for providing a basis of divorce, is that, irrespective of the fault or other circumstances relevant to the conduct or position of the parties, divorce is to be granted if the marriage has actually broken clown. 'Whether the substantive requirement oi break- down is accompanied by certain evitlentiary requirements is a matter of detail, as is the actual legislative formulation in which this ground may be couched.

CHAPTER 3 IRRETRIEVABLE BREAKDOWN : THE THEORY

3._'l. It would now be convenient to deal brieﬂy with the theory of irretrievable breakdown of marriage. During the last twenty years or so, in many countries of the World, a very im- portant question has engaged the attention of lawyers, social scientists and men of affairs, namely, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matri~ menial oﬁence theory or fan]: theory. The latter has come to he Luown as the breakdown theory.

The germ of the breakdown theory, so far as Common- wealth countries are concerned, may be found in the legislative and judicial developments during a much earlier period. For example, the (New Zealaodl Divorce and Matrimonial Causes Amendment Act, 1920, included for the first time the provi- sion that a separation agreernenti for three years or more was a ground for making a petition to the court' for divorce and the court was given a discretion (without guidelines) whether to grant the divorce or' not. The discretion conferred by this statute was exercised in a case in New Zealand reported in 1921. Salmond J in a passage which has now become classic, enuncia- ted the breakdown principle in. these word' :---

"The Legislature must, I think, be taken to have intended that separation for three years is '.0 be accepted by this court, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de fncro, it should, unless there are special Ica- sons to the contrary, cease to exist de fore also. In general, it is not in the interests of the parties or in the interest of the public that 21 man and woman should 1 Patricia M. Webb, "'Rc.cerit Changes in UK. and New Zealand Divorce _I,.a.w" (1963) 14 l.C.l_.Q. l94,195 _ "_ Ladder v._ I.-:!_1';=.-. Ifl§I';Ei .\'-aw Zealaiid Law Reports 876 quoted in Jeﬁries. "IN-fitri-no-rial Faultvls it now relevant" (1972) New ZE:'.la]!['. Law Journal 513. 515.

'11 21 M of Lew,'73--2.

iﬁerrn lot' the theory.

remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further conlie nuance is in general not merely useless but mischievous."

mgigﬁicﬁl 3.2. The theoretical basis for introducing irretrievahlc ' -_ breakdown as a ground of divorce is one with which, by now.

"ﬂhhw lawyers and others have become familiar. Restricting the ground of divorce to a particular offence or matrimonial dis- ability, it is urged, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault' is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situa- tion in which the marriage cannot be worked. The marriage has ail the external appearances of marriage, but none of the reality. As is often put" pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marri- age as a facade, when the emotional and other hounds which are of the essence of marriage have disappeared.

After the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce. The parties alone can decide whether their mutual relationship provides the fulﬁlrnent which they seek. Divorce should be seen as a solution and an escape route out of a difﬁcuit situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances.

t1Lfﬂ¢i8 of 3.3. The defects of the "matrimonial fault" theory have been mm-immial described more often than once. On May 22, 1969, the General fllliﬂheory-Assembly of the Church of Scotland accepted the Report of their Moral and Social Welfare Board, which suggested the subs- titntion of breakdown in place of matrimonial offences. It would be of interest to quote what they said in their basic tirosm-a1s'----

"Matrimonial oﬂences are often the outcome rather than the cause of the deteriorating marriage. An accu-

I. These proposals were referred to by the Lord Chancellor in House of Lords Dtbetes dated 3Gth June, 1969.. Col. 319.

satorial principle of divorce tends to encourage matri- monial oﬁences, increase bitterness and widen the rift that is already there. Separation for a continuous period of at least two years consequent upon :1 decision of at least one of the parties not to live with the other should not as the sole evidence of marriage breakdown."

Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should endeavour to reconcile the parties; yet, ii it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of misery for the parties.

These, in brief, are the main postulates of the theory of irretrievahle breakdown as £1 ground of divorce.

Question 1.

Reasons in support.

CHAPTER 4 MERTFS AND DEMERITS OF THE TI-IEORY VOF IRRETRIEVABLE BREAKDOWN 4.1. Question 1 of our Questionnaire invited views on th principal question and was as fol1ows1:----- i "Q. 1. Do you agree with the suggestion that the Hindu Marriage Act be amended with a View to n1ak-- ing irretrievable breakdown of marriage as a good ground for grant of a decree of divorce '?"

-4.2. In seeking answer to this question we have to bear. in mind the changing nature of the family. The family is becom- ing more democratic, and more egalitarian. Both the husband and wife share not Oniythlc family house ; in some cases they also share the earnings of each other. Because of the rising rate of female activity, the family unit is more of a coalition. It is, therefore, necessary that if the coalition cannot be worked. the legal sanction for it must be withdrawn.

In answer to the objection that the ground of 1rretrieva- hie iIJ['C's1l~:LlD't=.-'t1 of marriage vague, it may be stated that the petitioner has to satisfy the court of a concrete fac:t----iiving apart for a sufficient length of time. Judges have thu.-2 to ad- judicate en facts (not on some vague concepts) the question whether or not, on the evidence before them, the parties have been living apart for the speciﬁed period.

A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved ; divorce courts are presented concrete ins- tances of human behaviour as bring the institution of marriage into disrcpute. Because of the doctrine of matrimonial -ottence, judges and la':-.'jvers are icntetinies reduced to the role of sea» vengers. The lawyers have to look for and expose, and the Judges are confronted with, the worst obscenties within a mar- ried life. It is, therefore, not surprising that with the present '. Question.

14- I5 adversary system all types of allegaﬁons are freely hurled across the courtroom.

We need not stand on an old divorce law which demands that men and women must be found innocent or guilty. It is desirable to get rid of the public washing of linen which takes place in long drawn--out cruetly cases or in cases based on fault. If divorce is allowed to go through on the ground of marriage breakdown, such an unhappy spectacle W111 be avoided.

One cannot say that it is an enhancement of the res- pect for marriage there are tens of thousands of men and women desparately anxious to regularise their position in the community and they are unable to do 50. People should be able to marry again where they can obtain a death certiﬁcate in respect of. a marriage already long since dead.

4.3. The objection that irretricvable. breakdown as a ground of. divorce is vague has been already dealt with.' Other oh~ jections to it may be dealt with.

(a) Irretrievable breakdown allows the spouses, or even one spouse, to tcnninatc the marriage at will, thus transforming ntnrriagc from a union for life into one which can be ended at pleasure.

{b} It is contrary to the basic principle than no man should be allowed to take advantage of his own wrong ; a spouse who was responsible for the break» down of marriage should not be able to rely on such breakdown in order to obtain a divorce against his or her partnefs will. By authorising one spouse to di- vorce the other against the latter's will after separation for a speciﬁc period. the law will have given statutory erecognidon for the ﬁrs: time to the principle that a person may take advantage of his or her own' wrong.

These objections. ndvanccrl at one time or other against thergrant of divorce on the ground of irrelricv-able breakdown of marriage, cannot, in our opinion, succeed in their entirety. The}: can result only in the insertion in the relevant legislation of certain safeguards, intended to meet some of the objections and to allay some of the apprehensions.

' Para 4.2, .ma_.'1ra.

Object ior-.5 Principle of not taking advantage of onc's own wron already modiﬁed, Recommen-

dation as to breakdown.

4.4 The theory that one cannot take advantage of onc's own wrong has not been adhered to in the Hindu Marriage Act in the past. We may, in this context, refer to clause (ii) of sub---section (IA) of section 13 of the Act. According to that clause, either party to a marriage, whether solernnized be-- lore or after the commencement of this Act,' may present a petition for the dissolution of the marriage by a decree of di- vorce on the ground that there has been no restitution of con- jugal rights ac. between the parties to the marriage for a period of one year or afterwards after the passing of a decree for the restitution of conjugal rights in proceedings to which they were parties. This provision clearly contemplates that even the party which has been in the wrong in so far as it has failed to comply with a decree for restitution of conjugal rights can also apply for a decree of divorce on the ground that there has been no restitution of conjugal rights as between Lhc par- ties to the marriage for a period of one year or upwards after the passing of the decree. for restitution of conjugal rights in a proceeding to which they were parties. Such a party, though at fault. would thus be taken advantage of its own fault. it cannot, therefore, be said that under the provisions of the Hindu Marriage Act. as they stand at present. no person can be allo- wed to take advantage of his own wrong.

4.5. On 21 consideration of the merits and demerits of the thcory of irrctricvablc breakdown of marriage, we have come to the Conclusion that such a breakdown of marriage should be a good ground for the grant of a decree of divorce under the Hindu Marriage Act, 1955. if proved by the parties living apart for the speciﬁed period,' and subject to the safeguards which we are recommending later in this Report?

We need not repeat the various arguments in support oi" introducing such a ground. to which we have already made a reference in the preceding discussion. In reaching our con- clusion, we have been principally impressed by the considera- tion that once thc marriage has broken down beyond repair. it would be unrealistic. for the law not to take notice of that fact. and it would be harmful to society and injurious to the interests of the parties if the legal bond is sought to be maintained not withstanding the disappearance of the emotional substratum.

' As to the speciﬁed period. sec C'h:'ptcr ti. r'.rifm.

' As to safeguards we Chapter F infra.

Such a course would encourage continuous bickering, perpetual hjnemegs, and may often lead to immorality. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. T116 marriage becomes a ﬁction, though supported by a legal tic. By refusing to sever that 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 parties.

Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but also that the court should be em- powered to declare defunct de jure what is already defunct dc facra. Where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition oi that fact. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a disso- lution of the marriage bond.

Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist. Marriage is life-long cohabitation in the home. When the prospect of continuing cohabitation has ceased, the legal tic should be dissolved.

-4.6. We my state that majority of the replies received to our Questionnaire have favoured the introduction of this ground of divorce in the Hindu Marriage Act.

It has been stated in a reply received' from a lady Ad- vocate' that it is only case where relief (of divorce) ought to be granted and cannot be granted by reason of certain difficul- ties: that We should now provide for. While recognising the desirability 'of reducing the necessary of unwilling partners being forced to live together, the reply emphasises that at the same tune divorce should not he made absolutely easy, because it will lead to tremendous insecurity for women. The reply Iiafes that to arrive at a conclusion that the marriage has bro- ken down I['I'6tt'l€V:alJl}', there should be some evidence in [ﬁg form of a comrnisslon of matrimonial oﬁence ; at the same time the reply states that we should obviate the necessity of ' S. No. 19.

Replies to the Ques-

tionnaire.

Obiwtion off one considered 18 apportionment of the guilt. Our approach, however; as already stated, is to make provision for divorce in, cases of irretricvablc breakdown of marriage, irrespective of the fact as to whether any party is or is not at fault. e 4.7. A High Court J udgel has expressed disagreement with the suggestion that the Hindu Marriage Act, 1955 should _be amended with a view to making irretrievable breakdown-of marriage as a good ground for grant of a decree of divorce. His comment is :

"In my opinion, such an amendment would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems than (are) sought to be solved." - ' We are, however, inclined, for reasons mentioned else- where," to agree with the majority view that" breakdown of marri- age is a good ground for the grant of a decree of divorce.

4.8. We may note that the Judges of one High Court" have expressed themselves against the introduction of irrctrievable breakdown as a ground of divorce. One of the points made in the reply of the High Court is that it is extermelv difficult to-say that the husband and wife would never live together merely be- cause there has been a rift between them and for the time being it appears that there may not be any prospect of their living to- gether. We agree that the mere fact that there has been a rift between the parties or that they are for the time living apart (1065 not mean that the marriage has come to an end. But we may, with respect, point out that our proposal contemplates not me- rely a breakdown of the marriage, but a breakdown which is irretrievable. Of course, it is possible that what may appear to one person to be irretrievable may appear to another as not yet beyond repair. But such a state of things cannot be allow- ed to continue indeﬁnitely, and there must arrive a point"of time when one of the parties should be permitted to seek the judgment of the court as to whether there is or there is notpa possibility of the marriage being retrieved. Human life has'a 1 S. No. 2.5. ' Para 4 , 5, supra.

3 S V). 30.

short span and situations, causing misery cannot be allowed to continue indeﬁnitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor decline to give adequate response to the felt necessities arising therefrom.

It seems to us that the social interest and balance of justice lie in favour of giving due Weight to the fact that where the parties have lived apart for the speciﬁed period, they should be taken to be married only in name. It may be very unfortu- nate that such a situation has come about ; but once it has come about, wisdom lies in accepting it as an established fact and in proceeding to consider how best to deal with the situation, rather than in turning a blind eye to realities. The Gujarat Government} while supporting the suggestion that irretrievable breakdown of marriage should be made a ground of divorce, has observed that it would be advisable that the spouses should be allowed to re-construct the marriage where the ﬁ.l'Sl was "wrecked beyond the possibility of reconciliation". We find con- siderable force in this 'dew.

4.9. The Government of India, Ministry of Education, De- partment of Social Welfare, has expressed the review" that "mak- ing irretrievable brcakdovtn. of marriage" a ground for grant of a decree of divorce is redundant. in the light of the that that sulﬁcient grounds covering 'irrctrievable breakdown oi marri- age' exist in' the Hindu Marriage Act and the Marriage Laws Amendment Act, 1976, for the purpose of seeking divert-.:d".

We have given careful consideration to this view, but are unable to subscribe to it. As pointed out earlier," the grounds contained in the Hindu Marriage Act, even after its amendment in 1976, do not specifically deal with irretrievable breakdown of marriage. Some of the amendments made in the Hindu Marriage Act in 1976 no doubt take into account, by necessary implication. irrctrievablc breakdown of marriage as a relevant factor. There is, however, no ground in the Act, even after the amendments of 1976, which expressly provides for divorce on the ground of irretrievable breakdown of marri- age. As indicated earlier,' the purpose of the amendment suggested by us is to provide for divorce on the ground of ' S. No. 3!.

" S. No. 33.

' Paragraphs 2.2 to 2. 7-', supra.

' Paragraph 2.5 ._ supra.

Objection of Department of Social Welfare consideued.

irretrievable breakdown of marriage even if one of the spouses does not join together in the ﬁling of the petition, or even op- poses, such a petition. Our amendment further suggests that the living apart of the husband and wife for a suﬂicient length of time would be presumptive proof of breakdown of marriage. There is no provision in the existing law to meet such an even- tuality. It may also be reiterated that the change in law re- commended by us would obviate the necessity of washing dirty linen of marital lift: in public.' CHAPTER 5 RETEN'I'IU'N OF OTHER GROUNDS OF DIVORCE

5.] One of the qucslioris which has posed itseli' for decision is whether the introduction of irretrievable breakdown of n'iarrL~ age as a ground of divorce under the Hindu Marri- age Act should result in elimination of the other grounds of divorce. which already' exist in the Act. e.g- adultery, cruelty or desertion. or whether those other grounds should also be retained. Some foreign writers ham expressed the View that after the introduction of the ground of irretrievab-lc breakdown

-of marriage the other grounds might not be retained. We are. however, unable to subscribe to the above View as. in our opi- nion, the introduction of irretrievahle breakdown of marriage as a ground for divorce does not render the other grounds for divorce which already exist on the statute book as superﬂuous. There is no inherent contradiction or fallacy in having both the new and the old grounds.

Section 1 of the English Matrimonial Cause.» Act, 1933, is the only section in that Act which deals with a decree for divorce. According to that section'. a petition for divorce may be presented to the court hy either party to a marriage on the ground that the marriage has hrt)i~;cr1 down ii-retrievabl-_r, Sub- section (2) of that section enumerates the Cli'Cl_li'l'lS-iZr':l['lCt.'.\ from which the court may infer that marriage has hroken down irre- trievably. Those circumstances are :~ (3) lhut the Tcsponticnr has committed adultery and the petitioner ﬁnds it intolerable to live with the res- pondcnt;

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

1 Section I. M-rlrimonial Causes Act. lé'}'3.

El Question of retienﬁoo of o ther g roun ds.

Retention favoured.

Efming divorce .

(c) that the respondent has deserted the petitioner for a continuous period of at least two years immedia- tely preceding the presentation of the petition;

(d) that the parties to the marriage have lived apart for a continuous period of at least two years imme-- diately preceding the presentation of the petition and the respondent consents to a decree being granted ;

(e) that the parties to the marriage have lived apart for a continuous period of at least ﬁve years immediately proceeding the presentation of the petition. T s ' It would appear from the above that according to the law in England, an inference of irretrievable breakdown of marriage can be drawn from a variety of circumstances. _ As against that, according to the amendment suggested by us', irretrievable breakdown of marriage can be inferred from fact that the parties to the marriage have been continuously living apart for a period of more than three years. The English law on the subject of irretrievable breakdown of marriage, un-- like the amendment suggested by us, is much more comprehen- sive and brings within its ambit such circumstances as adultery, cruelty or desertion. As we are not bringing in. for proof of irretrievable breakdown of marriage, considerations like adul- tery, cruelty or desertion, it is essential that the express pro- visions which we have already got in the Hindu Marriage-.Act relating to allegations of aduitery, cruelty or desertion against one of the spouses should stand. We arc, therefore, of the opinion that the ground of irretrievable breakdown ot marriage for obtaining decree of divorce shall he in addition to the grounds as are already there in the existing provisions of the Hindu Marriage Act.

5-2 Notwithstanding the theoretical attractiveness of the contrary view, we think that there are certain practical considera- tions which cannot be brushed aside.

5.3 Take, for example, some of the grounds of divorce provided in the 1'-lindu Marriage Actl. The Act provides for divorce on various grounds like adultery or cruelty. Such grounds should, in our opinion, he suﬁicient for the grant of divorce.

1 Hindu Marriage Act, 1955.

It would not be proper in such cases to require the addi- tional ground of irretrievable breakdown of marriage because of the said misconduct of the spouse in committing acts of adultery or cruelty. To do so would have the cﬁect of making the present provision much more stringent. It may be that such misconduct of a spouse may also result in a large number of cases in irretrievable breakdown of marriage. The question ' to"be considered, however, is whether in the event of such mis- conduct, it should be necessary to ask for further proof of irretrievabie breakdown of the marriage. Our answer to this question is in the negative. The various grounds of divorce provided in the Hindu Marriage Act should, therefore, be re- tained. It may be that there will sometimes be overlapping where the speciﬁc ground of divorce (e.g- cruelty') has also led to the parties living apart and breakdown of the marriage. However, that in itself is not a conclusive consideration for abolishing the present grounds of divorce.

M We do not, therefore, favour the omission of the exist- ing grounds of divorce as an essential consequence oi the adop- tion of irrctricvable breakdown as a ground of divorce.

We may note that a High Court Judge has, in her rc- ply', speciﬁcally stated as follows z»-

"This ground should he in addition to the grounds already speciﬁed under the Hindu Marriage Act, as amended."

1 No. 34"tuiia§o. 2;.

CHAPTER 6 THE REQUIREMENT OF LIVING APART Living apart. 6.1 We may now deal with the yrardstick to be applied by the courts in drawing an inference of an irretrievable breakdown of marriage. The yardstick would have to be factual and tangi- ble, and not abstract or one pertaining purely to a state of mind.

Accordingly, in most countries it has usually been con- sidered desirable to give some guidance to the court as to how irretrievable breakdown is to be evidenced. For this purpose. the legislative provision allowing divorce on the ground of irre- trievable breakdown of marriage is usually made subject, inter alia, to the condition that there must be proof that the parties have lived apart for a speciﬁed period.

3:;B§°""' 2 62 Taking note of this aspect of the matter, our questionnaire invited views as to the circumstances that would constitute suiﬁ» cient proof of breakdown.

The question was in these terms :' "Q. 2. If the reply to the question No. 1 be in the aﬂirrnative, what cirtzumstances, in your opinion, should be considered to be suﬂicient to prove irretrievable break- down of marriage 1?".

In regard to the period of living apart. as evidencing break- down, question 3 of our questionnaire was as follows :3 "Q. 3. How long should the parties have lived se-

parately beiore the court can come to the conclusion that there has been an irretrievable break down of marriage '3"

P°i'"3.m3d¢ 6.3 We give below the important points made in regard to gnaw Ln Question 2. We shall deal Iater3 with the replies to question 3.

' Question 2.

' Question 3.

' See 'para 6.7, tnﬁo.

Ln Some of the points made are :----

"Agroement by the two married people should be enough."

"Nor co-habiting" should be suﬂicient proof of irretrieva- ble breakdown of marriage."

"Separate living of (the) spouses for more than ﬁve years"

should be sufﬁcient to prove irretrievable breakdown of rna.t'riage.3 "Continuous separate living of the spouses in the prime period of youth, and desire of not coming together in the mind of one is sufﬁcient to prove the irretrievable breakdown of marriage.' "(D After a continuous separation arising out of the rift and no petition of conjugal right from either side {party} is ﬁled during the period of one year, "separation" should be deemed to be conducive ground for irtetrievable breakdown of marriage.

(ii) Continuous separation for more than one year, coupled with suspicion of misconduct from either side, mental or physical cruelty arising out of admission. Discovery of either of spouse regarding adultery covering pre--marital illicit relations rendering their living together impossible".5 "Continuous separate living of the spouses for long time"

should be stzfdcient proof of irretrievable breakdown."

The circumstances sufficient to prove irretrievable break- down, according to some others, are :----"

(a) proof that "both the spouses are living separately for not less than one year on account of internal disputa and have no willingness to comply with conjugal rights . ";

(b) if a case for judicial separation or divorce or restitution of conjugal rights is pending for three years, and "no attempts to settle the dispute or to compromise are made by either party".

1 S. No. 1.

* S. No. 2.

' S. No. 5.

' S. No. 6.

' S. No. .7.

' S v 26 (9) "in some cases, it is even enough to take into account a simple submission of the spouse that he or she 5! cannot live together .

Other circumstances mentioned insome of the replies are as under :--

"Present grounds of divorce (in the Hindu Marriage Act) should be sufficient to prove irretrievable breakdown of ma1'riage"_1 "Separation of the spouses, for whatever reasons, for a suﬁieiently reasonable time, should be considered sufﬁcient to prove irretrievable breakdown of marriage"?

The circumstances suﬂieient to prove breakdown may be "somewhat like" those given below, but "they are by no means exhaustive" :3 "{a) where the thinking of husband and wife on some vital aspects of life are so divergent that there is no pos- sibility of reconciliation and co-ordination between them. . . .;

"(hj absence of sex appeal in either spouse qua each other;

"(c) aversion to sex on the part of either spouse and their lack oi warmth for each other ', "lfdl emotional disintegration between the two spouses".

The court should be satisﬁed that the other party "has been living away from the petitioner without cohabitation for a as .1 continuous period of not less than three years .

"The suggestion (in Question 1)5 can be accepted only if the law would also provide new facts which would result in breakdown."

1 S. No. l5.

"' S. No. l'.3'.

3' S. No. 19.

' S. No. 19.

5 Question 1 was as follows :--

"Do you agree with the siiggesti-on that the Hindu Marriage Act be amended with a \-icv.-' to making irretrievable breakdown of marriage as

3. good ground for gram of a decree of divorce T"

' S. No. 19.

According to another reply.' "breakdown of marriage is a matter of fact for the court to decide, after satisfaction that all possible means of reconciliation have been tried out and have failed".

6.4. After giving our earnest consideration to the matter We would express the View that irretrie-table breakdown may be presumed from the fact that the husband and wife have been liv- ing apart for a 'CU'Dil]11I£'|i.lSi}' long time. How much long that period should be, will be dealt with subsequently.' 6.5. We would add that living apart for the speciﬁed period should be the only proof of irretrievable breakdown. In formu- lating a conclusion on this question, several considerations have to be borne in mind.

It is, in our opinion, not enough for a party to aver that there has been an irretrievable breakdown of marriage. Such an avernment must be substantiated. What better material can there be to substantiate that avennent than the fact the husband and wife, despite their marital relationship, have been living apart for a long period 'I' The fact that the parties to the marriage have not lived together for a number of years can reasonably be taken to be a tangible presumptive proof of the breakdown of marriage.

Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one's oli- spring. Living together is a symbol of such sharing in all its as- pects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage

---"breakdown"~---and if it continues for a fairly long period, it would indicate destruction of the essence of marriage--"irretrie-- vable breakdown".

Recommen-

dation as to Q. 2-living apart as proof of breakdown.

6.6. As to Question 3, which deals with the period of living period not", apart," the only consideration that should be borne in mind is" '°° 1°35 that the period should not be so long as to prove intolerable and be tantamount to a denial of relief, nor should it be too short as to amount to an encouragement to the seeking of divorce in haste g, 1 S. No. 19A. ' See irzjia.

' Para 6.2, supra.

21 M of Law,f':'3-3 or too short.

Replies to Question 3.

28. without considering the possibility of working, the marriage in future notwithstanding its temporary failure in the past. Notwiti-1~ -

standing such temporary failure and loosening of the bond that is expected to bind the parties together, there still may be hope of saving the marriage. Tliere may have been a disrup-ti-an of the essence of marriage, but not its destruction. The line bet- ween disruption and destruction may be a ﬁne one, but is never~ theless one which no wise legislator should be ready to disregard. On this reasoning, it is our view that a period of living apart for three years should be required before the breaking--down may be said to be irretrievable.

6.7 We may not.e that the replies received to Question 3 of our Questionnaire suggest periods ranging from six months to ten years. The period of six months has been suggested by o-ne lady Advocate,' while the period of ten years has been suggested by a retired Judge of the High Court."

In between the two extremes (six months and ten year'-ri, there is a wide range. Thus several replies to the Questionnaire favour a period of one year.3 One of them,' however, states that the marriage itself must have subsisted for at least three year.

The period of two years has been suggested in one of the replies.' The period of three years has been suggested by a High Court Judge."

A State Government suggests a period of four years."' A woman lawyer suggests three or five years."

Preference for a period of five years has been expressed i."t several replies," including that ot a High Court Judge."

One reply suggests a period of seven years."

19.

17. 1,7, 1|, Band WA.

191%..

15.

25. Til.

19. No. No. No. No. 'No. No. No. No. No. 5, 6, [0 and 19 ('3 or 5 years].

. No. 34.

No. 2.

5'5»:-:amuu.,,..

(1.8. On a careful consideration of the matter, We have come§-e9°mHI=l;1- to the conclusion that a period of three years' continuous living Q':[£3°f3P apart woulil be just and fair. We note that the period in the },"=__Tif'>d Of English Act' is ﬁve years. But we should point out that matriino-- ""13 apart' nial pi-ocectlings in India take a considerable time for their dis-

posal. By the time the decree as passed. the period of conti-

nuous living apart would, in practice, exceed even five years in the majority of cases. We are. therefore. of the View that a period of three years' continuous living apart immediately before the presentation of the petition should be enough. While. on the one hand, it would leave adequate time for reﬁection and would not be inconsistent with the stability of marriage. on the other hand, it would not he intolerably long so as to promote immoran lily or further bitterness.

6.9 We may state that according to the English Act," in con- Calculation sidering the length of period for which the husband. and wife ';E:ig'§f'""°"' have been living apart, no account is taken of any one or more periods. not exceeding sis nionths in all. during which the parties resumed living with each other. tiuch resumption of living to- gether is resorted to sometimes with a View to ﬁnding out as to whether the parties can still get reconciled despite living apart for a long time on account of rift in marriage. We do not want to discourage such resumption of living with each other. Such living with each other can also sometimes become necessary be- cause of situations like death in the family or the illness of a child. In case, however, the law were to require that the period of living apart would have to he calculated afresh from resump- tion of living with each other. the spouses would be averse to resuming living with each other. We would. therefore not take into account ternpot'ar_v resumption of living with each other. The total period of such resumed living with each other. in our view, should be three months. We are applying this cut in the period of resumed living with each other in the period of six months mentioned in the English law. as we have also applieda a corresponding cut in the period of ﬁve years prescribed by the English law.

= Section 1{2)(e), Matriihsiiai Causes ACE, l9'i'3_ ' Section 1(5). Matrimonial Causes Act, 1973. ' Paragraph 6.8. supra.

CHAPTER. 7' SAFEGUARDS Introduction 7.1. inmost countries, certain safeguards have been provided in legislation permitting divorce on the ground of breakdown of the marriage. These safeguards proceed on two important considera- tions. First, a marriage that is worth preserving ought to be pre- served, and secondly, where dissolution of the marriage becomes unavoidable, care should be taken to ensure that the interests of those who are likely to suﬁer as a result of divorce are taken care of.

The safeguards that are usually provided by legislation in other countries are the following :--

1- Provision for the welfare of children.

11. Provision permitting the court to refuse divorce in case of hardship to the respondent.

III. Provision restricting divorce within a certain period after the marriage.

This safeguard is built-in in the amendment recommend- ed by us,' as a petition for divorce on the ground of irre- trievable breakdown of marriage can, in the very nature of things, he ﬁled only after more than 3 years from the date of the marriage.

IV. Provision for reconciliation.

Provision for this purpose already exists in the Hindu marriage Act.' While dealing with cases of irretrievable breakdown of marriage, it may be stated that current thinking is that compul- sory counselling is likely to prove a waste both of time and of resources as most couples will not, in any event, be reconciled and that resources should be concentrated on those parties who 1 Para -6. 3, supra.

' Section 23(2), Hindu Marriage Act, 1955.

30 31

show a positive intemst in their marriage.' It has been suggested that" counselling is unrealistic where the spouses do not show a positive interest in the future of their marriage and do not seek counselling voluntarily. It may, however, be appropriate to mention that section 23(2) of the Act imposes a duty on the court to make every endeavour to bring about reconciliation "where it is possible so to do consistently with the nature and circumstances of the case".

Where conciliation within the terms of section 23(2) of the Act is possible, it would sometimes be desirable to utilise the services not only of qualiﬁed persons but also of members of the family, in effecting reconciliation. In this context we mav refer to Order 32A of the Code of Civil Procedure. 1908, in-- serted in 1976.3 The Order applies to suits and proceedings re- lating to matters concerning the family. Rule 3 of the Order imposes a duty to make efforts for settlement in such suits and proceedings.

Rule 4 of the Order reads as follows -.

"4. In every suit or proceedings to which this Order applies. it shall be open to the court to secure the services of such person "t'preferabl3.' a woman where available), whether related to the parties or not. including a person professionally engaged in promoting the welfare of the family as the Court may think ﬁt. for the purpose of assisting the Court in discharging the functions imposed by rule 3 of this Order.

Matrimonial Courts can resort to this rule whenever suitable occasion arises.

V. Restrictions arising out of the ﬁnancial position of the respondent.

1 Matt Rltcinnlﬁilt. "The law oi' i}ivoI'ce and the Problem of Marriaste Stability" {[956] 9 \.-'anticrhilt Law Rerie-ix 633. referred to by-' Frank Bette}, "The Enfottement of .'v1-.1i'ri-.igc Revisited" {July-September, 197?] Vol. 6, No. 3, Angio--An1eric.'in Law Review, l'."3, Itil.

3 SC'-ildfiﬂll. "Systematic i'\-'l.'!t'l'l:-I'=[i:- li".'r'C\'.[l_L;t'|ilOﬁ and C".-_)'__|115cI][ng in Divorce C_a_ses : Sonic Reflections on its Coiistittitioiial propriety and general desira- bility" (I967) 36 George 'ﬂftishiiigtzin Law Review on, Ti]. referred to by [-'rank Bates, "The Ettftircenietit of M-.1ri'i-.1-;.e Rm-i_si:etl" (.l-.i|_t--5¢p1emb¢r__ 1977], Vol. 6. No. 3. Anglo--An1erican La'.-.v Rex-ie-.-.-. 173. liil. ' 3 Order 3151, Rules 3--4, Code of Civil Procedure, £903.

2 1 M of L'.1w;"i'8«-4 Assistance of Welfare expert.

1. WELFARE OF CHILDREN welfare gf 7.2. Concern has been expressed about the adverse effects of Children divorce on children. The Vlf3'W has been put forth that while, in some cases, divorce may alleviate the stress caused by constant conﬂict between the parents, yet the rise in divorces means that we are creating a new society with "multiple" parents, and in that situation the children may he found to be the suﬁerers. Adults. who divorce and re-marry are Scurching consciously a better way of being happy, but children are being carried along these ;1ro~ cesses without choice} lt'ort::\lt1i§1i3=rI'é :5 7.3 In this context, the English Act contains an important mthc restriction on the grant of a decree absolute for divorce." Section English Act 41 of the Act is quoted below :----

"41. (1) The Court Shall not make ahsoltitc Et decree of divorce or of nullity of marriage, or grant a decree of judicial separation. unless the court. by order. has declared that it is satisﬁcdzm

(a) that for the purposes of this section there are no children of the family to whom this section applies; or ' (b) that the only children who are or may be children of the family to whom this section applies arc the children named in the order and that------

(ll arrangements for the welfare of every child so named have been made and are satisfactory or are the best that can be devised in thc circum- stances: or "(in it is impracticable for the party or par- ties appearing before the court to make any such arrangements; or (C) that there are circumstances making it desir- able that the decree should be made absolute or should be granted, as the case may be. without' delay notwithsanriing that there are or rnay be children of the family to whom this section applies and that the court" is unable to make a declaration in accordance with paragraph {bl aha':-.

1 Interviex-in-lib Salvador llvlimichin, Director, Philadelphia Child. Guid- ' ance Clinic, as quoted in U.S. ".'\"ews of the World Report (13 January, 1975). 1_ pages 44, 46.

' Section 41, Matrimonial Causes Act, 1973.

33- (2) The court shall not make an order declaring that it is satisﬁed as mentioned in subsection (1)(c) above unless it has obtained a satisfactory undertaking from either or hoth of the parties to bring the question of the arrangements for the children named in the order K-_.=_before. the C.0I1['l='Wltl1l.l'| a speciﬁed time.

t3) If the court makes absolute a decree of divorce or of nullity of marriage. or grants a decree of judicial separation. without having made an order under sub- section (1) above the decree shall be void 'out, if such an order was made. no person shall be entitled to chal- lenge the validity of the decree on the ground that the conditions prescribed by suh--se=:t'ions (ll and (2) above were not fulﬁlled.

(4) If the. court refuses to make an order under sub-section fl) above in any proceedings for divorce. nullity of marriage or iudicial separation it shall, on an application by either party to the proceedings, make an order declaring that it is not satisﬁed as mentioned ll] that subsection.

\ {5} This section applies to the following children of the family. that is to say--

tal any minor child of the family who at the date of the order under sub-section (1) above is--

{i} under the age of sixteen, or

(ii) receiving instruction at. an educational establishment or undergoing training for a trade,- profession or vocation, whether or not he is also in gainful employment; and (In) any other child of the family to whom the court by an order under that sub~section directs that this section shall apply; and the court may give such a direction if it is of opinion that there are special circumstances which make it. desirable in the interest of the child that this section should apply to him.

(6) In this section 'welfare', in relation to a child, includes the custody and education of the child and ﬁnancial provision for him."

Provision in the Hindu Marriage Act Question 4 in Question-

naire and replies thereto, Recommen-

dation as to children.

7.4. The Hindu Marriage 'Act has a limited provision as to the restriction on the grant' of divorce in the interests oi. child- ren. Under section I4( 1), the court may, upon application made to it in accordance with such rules as may he made by the High Court in that hehalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the res- pondent.

Section 14{ 2) provides-

"In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage. the court shall have regard to the interests of any child- ren of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year."

7.5. As to the presence of children. Question 4 of our Ques- tionnaire was as follows? '.

"Q. 4. Should the presence of children operate as a bar to the grant of a decree o" divorce on the ground of irretrievable breakdown of marriage? If so. should the bar be absolute or partial ?"

We may state that the replies received on this Question. by and large, do not consider it necessary to regard the t".'.i'~:|cnCt_' of children as a total bar. One reply. however. Kcgilr-:,l§ that fact as constituting a partial bar if the child or child ten l~..,- under the age of ten years and are attached to both the spouses in an exceptionally affectionate manner."

16. We do not think that the presence of children should operate as a total bar to the grant of a decree of divorce. How- ever, we are of the view that where divorce on the ground of irretrievable breakdown of marriage is sought, the court should take into account the interests of children. Where ﬁnancial pro- vision needs to he made for the maintenance, support and edu- cation of children, there exist provisions on the subject in the Act. The fact that there are children is obviously a matter that lends emphasis to the need for making appropriate orders under these provisions.

- l SBcliiiriVl4. Hindu .\'iElFI'iagt: i955'.-um H _ H 3 Question 4.

' S. No. 17.

Accordingly, we are recormnendingl the insertion of a provision on the subject.

The principal objective sought to be achieved by the pro- vision relating to children of the marriage may be stated at this stage.

The Court shall not pass a decree of divorce under the new provision relating to irretrievable breakdown unless the Court is satisﬁed that adequate provision for the maintenance of children, born out of marirage, referred to below has been made consistently with the ﬁnancial capacity of the parties to the marriage.

This provision will apply to---

(a) minor children;

(b) unmarried or widowed daughters who have not the ﬁnancial resources to Support diemselves; and (C) children who, because of special condition of their physical or mental health, need looking after and have not the ﬁnancial rcso-urces to support themselves.

ll. HARDSHIP 7.7. Then there is the question of hardship that may be caused Hardship to therespondent by the grant of divorce. The English Act?

enables the respondent to a petition for divorce based on ﬁve years' separation as constituting breakdown to oppose the peti-

tion on the ground that "the dissolution of the marriage will result in grave financial or other hardship to him and that it would in all the circumstances be wrong to dissolve the marriage".

The following is the text of the entire section :

Refusal of decree in five year separation cases on grounds of grave hardship to respondent.

5. (1) The respondent to a petition for divorce in which the petitioner alleges ﬁve "years" separation may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave ﬁnancial or other hardship to him and that it would in all the circumstances be wrong to dissolve the marriage.

I See Chapter -'3, infra.

' Section 5. Matrimonial Causes Act, I973.

Case law as to "hardship"

Question 5.

(2) Where the grant of a decree is opposed by virtue of this section. then--

(a) if the court ﬁnds that the petitioner is entitled to rely in support of his petition on the fact of live years' separation and makes no such ﬁnding as to any other fact mentioned in section 1(2) above, and

(h) if apart from this section the court would grant a decree on the petition.

the court shall consider all the circumstances, including the con- duct of the parties to the marriage and the interests of those parties and of any chilrireii or other persons concerned, and if of opinion that the dissolution of the 'marriage will result in grave ﬁnancial or other hardship to the respondent and that it would in all the circumstances be wrong to dissolve the marriage it shall dismiss the petition.

"{3} For the purposes of this section hardship shall include the loss of the chance of acquiring any beneﬁt which the respondent might acquire if the marriage were not dissolved."

7.8. This defence, therefore, requires proof of two distinct elements. First, grave ﬁnancial or other grave hardship to the respondent if the marriage is dissolved and, secondly', facts and matters which in the opinion of the court, would in all the cir- cumstances make it wrong to dissolve the marriage. in consi- dering both these elements, the court is expressly directed to "consider all the circumstances, including the conduct of the parties to the marriage and the interests of these parties and of any children or other persons cotlcertied."

7.9. By question 5 of our Questionnaire, we solicited ViI3'pVri on the question whether the decree should he refused on the ground of special circumstarices'.

"Q. 5. Are there any special circumstances in which, in your opinion, a decree for divorce should not be granted even if irretrievahle breakdown of the marriage is established '? If so, please specify the circumstances."

We may state that while many of the replies on this question are in the negative, one of the rcplicsﬂ suggests that if it is 1 Question < * S. No. it).

felt that the introduction of the proposed ground may cause hard- ship or prejudice to women, then the right to seek divorce on the proposed ground may be limited to the wife.

The reply of a High Court Judge is more speciﬁc. She says' :

"When the parties to a marriage have lived apart for a continuous period of at least 5 years immediately preceding the presentation of the petition, that fact should be considered as a. prima facie proof that the marri- age has it't'ClI'i€.'|r'abl'j;' broken down. In no case should a decree for divorce he passed on the ground that the marriage has irrctricvably broken down unless the parties to the marriage have lived apart for a continuous period of at least 5 years immediately preceding, the presenta- tion of the petition. The Court should be further satis- ﬁed in each such case that the dissolution of marriage will not result in grave ﬁnancial or other hardship to the respondent. Payment of a suitable lump sum ali- mony to the wife when the respondent is the wife should he a condition precedent to the grant of such a divorce. The amount should be determined by the Court. In the alternative the Court may grant a monthly amount as maintenance to the wife if the Court is satisﬁed that such future monthly payments are adequately seemed.

Either party should be able to present such a peti- tion, and the consent of the other party should not he ne- cessary for presenting such a petition."

120. We are of the View that there is something to be said for conferring a discretion on the Court to refuse divr)rt:~: on the ground of irretrievable breakdown of marriage where a divorce would cause grave ﬁnancial hardship to the respondent and it would be wrong in all the circumstances to dissolve the marriage. At the ﬁrst sight. it may appear that once it is established that the marriage has broken down irretrievabljr, it would be illogical to allow a party to oppose the divorce on the ground of hard- ship. It is, however, to be remembered that the grant of divorce--- or, for that matter. any other matrimonial relief------on_ a particular 9331107? ground is not necessarily mandatory on the proof of facts constittltingthe -statutory ground. There would be nothing 1 S. 'No. V:'i"41'l!1".I'.l.E!VT"'Q-_ 21 Recommen-

dation as to hardship to the wife.

theoretically wrong in vesting a discretion in the court to refuse relief if the special circumstances of the case require that the relief should be refused. Such a course would be adopted only in exceptional circumstances, but the vesting of a statutory dis- cretion would be intended to promote the interests of justice, and is therefore supportable on that ground.

At the same time, we do not consider it just to give such a discretion to the court in every case--as is the position in England} We do not think that there is any need for conferring such a discretion on the court in cases where the petition is by the wife. The fact that a woman has oomrrzenced proceedings would, in Indian conditions, imply in most cases that she ﬁnds conjugal life intolerable. We do not think that in such circum- stances it would be just or fair to leave any scope for refusal of relief on the ground of hardship to the respondent husband. Where the wife is the petitioner and the husband is the respon- dent, there could hardly arise any situation in which the hard- ship likely to be caused to the husband (resprwndcnti by the grant of a decree of divorce would be more grave than the hard-- ship that would be caused to the wife (petitioner) if the divorce is not granted. The situation may not be inconceivable, but would not be very frequent.

7.11. It may be mentioned that unlike the English Act, which grants discretion to the court to refuse decree of divorce in cases of both grave ﬁnancial and other hardship, we have conﬁned in the proposed amendment the discretion to refuse relief only in cases of grave ﬁnancial hardship when the court considers that it would, in all circumstances, be wrong to dissolve the marriage. We have omitted cases of "other hardship" as, in our opinion, the words "other hardship" would open the way for an kinds of pleas which might render the proposed provision contained in section 13C, in case of petition by the husband, to be more or less illusory in a large number of cases.

Rﬁpjmmen- 7.12. We, therefore, recommend that where the wife is the res- $'$$oa;§° pondent to a petition for divorce on the ground of irrctrievable onthebasisbreakdown of marriage, the court should have a discretion to gmehmdswgtlf refuse divorce where it is satisﬁed that the grant of divorce might cause grave ﬁnancial hardship to the respondent, and that in all the circumstances it would be wrong to dissolve the marriage.

1. Section 5, Act of 107]. paragraph 7.1'. suprrr.

':'.13. It is desirable to explain another departure which we are Dfﬁnition of making from the English Act. Section 5(3) of the English Act h1"*;fg~""'P provides that for the purposes of the section "hardship" shall English Act include the loss of the chance of acquiring any beneﬁt which the 11°' 'in-""-""d respondent might acquire if the marriage ﬁrere not dissolved.

We are of the View that such a provision should not be included in the Act. It seems to cover mere chances, possibilities and expectancies and could be stretched to cover even the loss of the expectancy that the wife might survive the husband and might then inherit his estate by way of intestate succession. We do not, therefore, propose to insert the deﬁnition of "hardship"

as contained in the English Act.

CHAPTER 3 RECURLWIENDED Al\'IENDl|r[ENI'S 1=15°1'ti°=! 0f 8.1. The following is a rough draft. of the new sections to he DEW and BE.

Divorce on |:l:IE_ ground of nrretriev-

Conipare section 1(1).

English Act, 1973.

Compare section 1(2) {c}. English Act, l9'J'3, English Art, 1973.

Compare .section 2(5), English Act, 1973-.

13c,s1e§l;';m5 inserted in the Hindu Marriage Act, 1955, in order to implement our recommendations' on the several matters of a substantive nature" dealt with in this Report so far:

"] SC. (1) A petition for the dissolution of a nlarriage by a decree of divorce may he presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.

{2} The court hearing such a petition shall not hold the marriage to have broken down irretricvably unless it is satisﬁed that the parties to the marriage have lived apart for a continuous period of at least three years ironie- diately preceding the presentation of the petition.

{3} If the court is satisﬁed, on the evidence, as to the fact mentioned in sub-section (2), then unless it is satisﬁed on all the evidence that the marriage has not broken down irretrievahly, it shall, subject to the provi- sions of this Act, grant a decree of divorce.

(4) In considering for the purpose of sub--section (2) whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months in all) during which the parties resumed living with each other, but no period during which the pmties lived with each other shall count as part of the period for which the parties to the marriage lived apart.

' Faragrap]-r -1,5 Brcrzkrirw.-n as a ground of divorce. Paragraph on Living apart as proof or' divorce. Paragraph 6.3 Period of living apart.

Paragranlw 5.9 Corfinuity of the period. Paragraph 'r'.r3 rm-ision relating to children. Paragraphs T-'.1I}to 7.12 Quesiion or" hardship.

9 Far prcc-2dt*r.It] and consequential an'rend1rent.<.. see paragraphs 8.2 amt triﬂe. which deal with sections 21;! and 23(1).

40 41

{5} For the purposes of shb-sections (2) and {'4}, a husbandand wife shall be treated as living apart unless they are living with each other in the same household, and references in this section to the parties to a marriage living with each other shall be construed as references to their living -with each other in the same household-"

"13D. (1) Where the wife is the respondent to a peti- tion for the dissolution of a marriage by a decree of divorce under section 13C, she rosy oppose the grant oi a decree on the ground that the dissolution of the marriage will result in grave ﬁnancial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage.

11) Where the grant of a decree is opposed by virtue of this section. them-

ta'} if the court ﬁnds that the petitioner is entitled to rely on the ground set out in section 13C. and (I3) if apart from this section the court would grant 21 decree on the petition.

this court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons con- cerned, and if the court is of opinion that the dissolution of the marriage will result in gra-re ﬁnancial hardship to the respondent and that it would in all the circumstances be wrong to dissolve the marriage it shall dismiss the petition. or in an appropriate case stay the proceedings until arrangements have been made to its satisfactiorr to eliminate the hardship."

"13E. (1) The Court shall not pass a decree of divorce under section 13C unless the court is satisﬁed that ade- quate provision for the maintenance of children born out of the marriage referred To in stilfhscction [23 has been made consistently with the ﬁnancial capacity of the parties to the marriage.

(21 This section shall appi'-.' tc~_ fal minor children :

(lo) umnarried or widowed daughters who have not the ﬁnancial resources to support themselves; and Wifee right to oppose the petition on the ground of hardship.

Cotnpare ﬂiion 5, English Act, J9?3.

Re_.5*tfiC':i0'n on degree for divorce affecting children.

(c) children who, because of special condition ot their physical or mental health, need looking after and have not the ﬁnancial resources to support themselves."

Am°"dm°"" 8.2. In View gt the proposed insertion of a. new section, it will of section . . .

21A. also be necessary to make consequential changes in section ?.lA(1), clauses (aft and (b).

Power to Section 21A, sub--scction (1) and sub-section (2) read :':g'§"£°; in as follows :--

$9 "21A. :1) Where----

(a) a peti:ion under this Act has been presented to a district court having jurisdiction by a, party to a marriage praying for a decree for judicial separation 'under section 10 or for a decree of divorce under section 13, and (is) another petition under this Act has been pre-

sented thereafter by the other party to the marriage praying for a decree for judicial separation under sec- tion IU or for a decree of divorce under section 13 on any ground, whether in the same district court or in a different district court, in the same State or in a different State.

the petitions shall be dealt with as speciﬁed in sub--sectIon C23- ( 2) In a case where sub-section (1) appl1es,--

(a) If the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district court;

(In) if the petitions are presented to different dis. trict courts, the petition presented later shall be trans- ferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court, in which the earlier petition was presented."

In sub-section (1), clause (3) and clause (13), ncwlyr added section 13C should ﬁnd a mention. In clause (a), after the word and figure "section 13", the words, ﬁgure and letter "or section 13C" should be inserted. In clause (b), ter the word and ﬁgure-"section 13", the words, ﬁgure and letter "or section 13C"

should be inserted.

8.3. Attention may also be drawn to section 23(1) (E1) Of 1116 §'f";§;"g n Hindu Marriage Act which relates to decree in the procecdingS»23(1}(ai]_ Section 23(1) (:1), in so far as it is material, reads as follows 2--

"23. (1) In any proceeding under this Act, whether defended or not, if the court is satisﬁed that--

(a) any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground speciﬁed in sub~elause

(a), sub--c1ause (hi or sub--c1ause (C) of clause» (ii) Of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and . . . . . . . .

then and in such a case, but not otherwise, the court shall decree such relief accordingly."

In our opinion, it is desirable that the petition under the new section 13C would be excluded from the scope of section 23(l)(a). Once divorce is decided to be granted on the basis of irretrievable breakdown of the marriage, any allegation that the fault of a party contributed to the conditions leading to the breakdown should be regarded as irrelevant. To allow section 23(1)(a) to operate in all its severity in such cases might defeat the object of the recommended amendment. The general and categorical prohibition contained in section 23(l}(a) would thus be inappropriate in a case of irtretrievablc breakdown.

Accordingly, we recommend that in section 23( I } (a). after the word and ﬁgure "section 5", the words, ﬁgure and letter "and except in cases where the petition is presented under section 13C"

should be inserted. The added matter will, of cdurse, appear before the closing rectangular bracket in section 23(1) (a).

Sd. (H. R. Khanna) Chairman Sd. (P. M. Fiakshi) .Member--Seeretary New Delhi, the Tth April, 1978 mont APPENDIX LAW COMMISSION OF INDIA QU ESTIONNAIRE ON HINDU MARRIAGE ACT : DIVORCE ON THE GROUND OF IRRETRIEVABLE BRE.-GLKDOWN OF MARRIAGE Irretrievable breakdown of marriage is now considered, in the laws of a number of countries, a good ground of dissolving the marriage by granting a decree of divorce. The Delhi High Court, in a Full Bench decision in Ram Kali V. Gopni Dar," took note of the modern trend not to insist on the maintenance of a union which has utterly broken down, and observed:

"It would not be practical and realistic approach, indeed it would be unreasonable and inhuman. to compel the parties to keep up the facade of marriage even though the rift between them is complete and there are no pros- pects of their ever living together as husband and wife."

In the case of Btrmt 1:. Birenf', Viscount Simon, L.C., while specifying the considerations which should prevail in matri- monial mztttcrs. olisc-rtrctt :

%_._ 1 Ram Kati" V. IS'oprJlDa'tt'l.'J9?1) 1 Delhi 10 (F.B.}. 2 Bfrrnr V, Bier!!! (19431 3 All E.R. T6, 78 [l}.L.} "To these four considerations I would add a ﬁfth of a more general character, which must indeed be re-

garded as of primary importance, viz., the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down. It is noteworthy that in recent years this last consideration has operated to induce 44 45 the Courts to exercise a favourable discretion in many instances where in an earlier time a decree would certainly have been refused."

The British Parliament since then has enacted the Matri- monial Causes Act, 1973 {which replaces the Divorce Reform Act, 1969). According to section 1 of that Act, a petition for divorce may be presented on the ground that the marriage has broken down irretrievablgr. Sections 1, 2 and 3 of the aforesaid Act have been reproduced in an Annexure to this Questionnaire.' A distinguished jurist has suggested that irretrievable breakdown of marriage may also be rna-do a ground of divorce by making the necessary amendment in the Hindu Marriage Act. 1955. The relevant provisions of the Hindu Marriage Act regard- ing divorce are contained in sections 13, 13A and 13B which are also reproduced in the Annexurc to this Questionnaire," It may be mentioned that section 1313 provides for a decree of divorce by mutual consent.

A petition for divorce on the ground of i rrctrievabie break- down of marriage in a majority of cases would not make it neces- sary for the court to go into the question as to which party was 8'1. faiuit before granting a decree of divorce and it would be enough to prove that the relations between husband and wife have reached such a breaking point that there is no possibility of reconciliation. This would obviate the necessity of producing evidence of acri- mony and other incidents during the married life, some of which the parties may not like to reveal.

Before taking any further action on the suggestion that in-etrievabie breakdown of marriage should be made a ground for divorce. it has been considered appropriate to invite views on the matter by issuing a brief Questionnaire. it is requested that if there be no objection, is considered reply may be sent to the undersigned within six weeks of the date of receipt of this Ques- tionnaire.

Q. 1. Do you agree with the suggestion that the Hindu Marriage Act be amended with a view to making irretrievable breakdown of marriage as a good ground for grant of a decree of divorce ? i,,, . ,,,, ' The Annexures to the Questionnaire have not been reproduced here. 1 The Anne:-cures to the Questionnaire are not reproduced here.

O. 24 If the reply to the question No. 1 be in the aﬂirmativc, what circumstances, in your opinion, should be considered to be sufficient to prove irretrievable breakdown of marriage?

Q. 3. How long should the parties have lived separately before the court can come to the conclusion that there has been an irre» trievabie breakdown of marriage ?

Q. 4. Should the presence of children operate as a bar to the giant of a decree of divorce on the ground*of- irrgtrievable break- down of marriage '? If so, should the bar be absolute or partial?

Q. 5. Are there any special circumstances in which, in your opinion, a decree for divorce should not be granted even if ine- trievable breakdown of the marriage is established '1' If so, please specify the circumstances.

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The Hindu Marriage Act,1955