Irretrievable break down – OR how to get Smriti Shinde her divorce

Here is the earlier news when Supreme Court thought it fit to issue notices to Union Law and Justice Ministry in Smriti Shinde’s divorce case.  People are not fools to notice that when men have approached Supreme Court for divorce, they have been given sermons like “obey your wife” by Justice Katju, and recently by another SC judge that “a man should not expect freedom in marriage”.  But when a minister’s daughter wants divorce, all stops must be pulled in name of constitution and what else!

The latest news is that the cabinet has approved introduction of an amendment which will allow people like Smriti Shinde to get divorce. Voila!  The funny thing is that everyone including media is calling it as divorce on grounds of irretrievable break down of marriage, when in reality it is nothing but addition of a minor clause in marriage acts to allow people like Shinde to be granted divorce in case the other party does not turn up after filing mutual consent petition.

http://pib.nic.in/release/release.asp?relid=62464

Thursday, June 10, 2010

The Union Cabinet today approved the introduction of a Bill, namely, the Marriage Laws (Amendment) Bill, 2010 to further amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, to provide therein irretrievable break down of marriage as a ground of divorce.

The Bill would provide safeguards to parties to marriage who file petition for grant of divorce by consent from the harassment in court if any of the party does not come to the court or wilfully avoids the court to keep the divorce proceedings inconslusive.

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. The grounds inter alia include adultery, cruelty, desertion, conversion to another religion, unsoundness of mind, virulent and incurable form of leprosy, venereal disease in a communicable form, renouncement of the world and not heard as being alive for a period of seven years or more. Section 27 of the Special Marriage Act, 1954 also lays down similar grounds.

However, section 13-B of the Hindu Marriage Act and Section 28 of the Special Marriage Act provide for divorce by mutual consent as a ground for presenting a petition for dissolution of marriage. The said sections inter alia provide that a petition for dissolution of marriage by mutual consent, if not withdrawn before six months after its presentation or not later than 18 months, then, the court may, on being satisfied after making inquiry, grant decree of divorce by mutual consent. However, it has been observed that the parties who have filed petition for mutual consent suffer in case one of the parties abstains himself or herself from court proceedings and keeps the divorce proceedings inconclusive. This has been causing considerable hardship to the party in dire need of divorce.

Incidentally, it may be pertinent to point out here that such a legal proposition has been recommended by the Law Commission of India in its 217th report on ‘Irretrievable Breakdown of Marriage – Another Ground for Divorce’. Further, the Hon’ble Supreme Court, in the case of Ms. Jorden Diengdeh Vs. S.S. Chopra reported in AIR 1985 SC 935 and in the case of Naveen Kohli Vs. Neelu Kohli reported in AIR 2006 SC 1675, has observed and recommended that irretrievable breakdown of marriage should be incorporated as another ground for grant of divorce.