| Publication: Bangalore Mirror; | Date: Jul 26, 2013; | Section: Front Page; | Page: 1 |
A landmark judgment in High Court of Karnataka
Court grants divorce over 'irretrievable breakdown'
The order has brought relief to a city couple who were married for just four months, but fought an acrimonious court battle for eight long years
S Shyam Prasad shyam.prasad1@timesgroup.com
The words 'irretrievable breakdown' are yet to make it to the Hindu Marriage Act and the Special Marriage Act. However, on July 17, a Karnataka High Court order granted a longwarring couple a divorce, while observing thattheirmarriagehad'irretrievablybroken down'. The court also convinced the couple to withdraw the slew of cases they had filed against each other.
The judgment, apart from being a landmark one, comes at a time when the Centre is planning to incorporate the "irrevocable breakdown of marriage" clause into marriage Acts.
In 2006, a three-judge bench of the Supreme Court comprising Justices B N Agrawal, A K Mathur and Dalveer Bhandari asked the Centre to consider including the clause 'irrevocable breakdown of marriage' into the marriage Acts. Laws of many countries allowed for dissolution on such grounds, and the bench held that divorce should not be withheld when both parties had filed for it as their marriage had irreparably broken down.
Earlier,waybackin1981,anattempttointroducethisclausehadfailedinParliament.Butthis time, following a Law Commission Report, the governmentcamearoundtoamendingthelaws. The government decided to introduce the Marriage Laws (Amendment) Bill, 2010, to amend thetwoActs.ButitwasnotuntilMarch2012that the Cabinet gave its approval. However, differences over other aspects of the amendment, particularly women's rights to marital property, resulted in the matter being referred to a Group of Ministers. The amendment Bill is expected before the Parliament in the Monsoon Session beginning Aug 5.
Earlier judgments of various high courts had held that only the Supreme Court could consider dissolution of a marriage on the grounds of 'irretrievable breakdown', under Article 142 of the Constitution.
With the monsoon session soon approaching, the din over the issue is also increasing as voices across the spectrum get shriller in an attempttobeheard.Amidstallthishypeandhoopla, on July 17, Justice Anand Byrareddy passed anorderinacriminalrevisionpetitionwherehe used the words 'irretrievable breakdown', and brought the curtains down on an acrimonious marital battle that had raged for eight years, even though the marriage itself had lasted a brief four months.
The couple from Bangalore, who married in 2006, the same year the SC ordered the inclusion of the phrase in law, got estranged six months later. They had been living apart since then. The wife filed criminal cases for harassment and dowry, while the husband filed for divorce. The criminal cases went against the husband, while the divorce petition is still pending. The husband challenged the criminal charges in the high court, and they were subsequently stayed. The couple filed two more cases — the husband for child custody, and the wife for restitution of conjugal rights.
Whenthehusband'spetitionchallengingthe lower court orders came up before Justice Anand Byrareddy,thehusbanddecidedtoarguehisown case. The wife was also called to court. The court tried to convince the couple to reconcile, but it emergedthattheywerehardlyseeingfacetoface.
In its order, the court said that ''since it is a fact that their marriage has irretrievably broken down", the husband agreed to convert his petition to one for divorce by mutual consent.
This is one of those rare occasions where the phrasehasbeenusedincourtorders,andafirstfor Karnataka High Court, shortly before it is set to become a law in Parliament. The couple even agreed to amicably settle their differences over child custody and other criminal charges.
WHAT IT MEANS
AT PRESENT, various grounds for dissolution of marriage by a decree of divorce are laid down in Section 13 of the Hindu Marriage Act, 1955. These include adultery, cruelty, desertion, unsoundness of mind, virulent and incurable form of leprosy, renouncement of the world and not heard as being alive for a period of seven years or more. However, there is no provision under Section 13 to grant divorce on the grounds of irretrievable breakdown of marriage.
Section 13-C sub-section (3), that will be inserted in the Hindu Marriage Act and Special Marriage Act, states: "The court shall not hold any marriage to have broken down irretrievably, unless it is specified that the parties to the marriage have lived apart, at least for a period of not less than three years immediately preceding the presentation of the said petition." Many divorce cases continue for years even when the couple has long split due to the accompanying dowry and harassment cases filed by the woman. The new clause could spell relief for couples who want to move on in life.
Child rights activist Kumar Jahgirdar said, "In many cases it is found that husbands and wives are not even from the same city, let alone living together. For all practical purposes, their marriages are dead. Domestic violence cases go on for years and, along with them, the divorce cases. Divorce is the only solution in such cases, but the trial, trying to figure out facts that are years old, go on for years. It's the children of these couples who suffer. The HC judgement is, therefore, very welcome."
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