For Indians, marriages are made in heaven. The flip side of this is that divorces too could be secured mostly through divine intervention. And the gods didn’t give their nod easily, although annulment of marriage through “mutual consent” had come to be a accepted as sufficient ground in law. In spite of this provision, the courts did what they could to delay divorce in the hope of giving discordant couples an extended opportunity to revive their marriage even after they had filed for ending an unhappy or difficult conjugal partnership sanctioned in custom and law.
Sometimes this worked, but quite often not. This was the general state of affairs among Hindus who got into a marriage under the Hindu Marriage Act 1955 (which also covers Buddhists, Jains and Sikhs) and the Special Marriage Act 1954. Muslims might have had it easier, as under Islamic law a marriage is a contract arrived at with due procedures, with rules and circumstances of termination clearly laid out. In practice, however, for most Indians, the idea of divorce carried a social stigma, particularly for women, and ending the married state was not easy to contemplate. As such, unhappy couples simply plodded on, if nothing else then for the sake of their children; while the childless among them continued to live in virtual hell. It is a sign of the times that in contemporary India the idea of divorce — although still not as easy as it is in parts of the West — can be given expression to within the family as well as within the community and society at large. The invisible rider was that the non-functionality of marriage should be evident to all concerned, not just to the married couple in question. Some of this could change if the recommendations of Parliament’s standing committee on law and justice — which have recently become available — become law.
Following a decision by the Union Cabinet in June last year to effect amendments to the Hindu Marriage Act and the Special Marriage Act to allow for divorce in the event of an “irretrievable breakdown of marriage”, a bill on this was introduced in the Rajya Sabha in August last year. We cannot at this stage anticipate the debate that will follow in the House. But in light of the standing committee’s recommendations, there can be reasonable expectation that the question will not be dismissed out of hand. In 1981, a move to introduce “irretrievable breakdown of marriage” as a ground for divorce did not have much traction. The social landscape has obviously changed in the intervening three decades, with fast-paced urbanisation, industrialisation and a communications revolution that has impacted our society no less than other societies around the world.
In this country’s altered profile, the autonomy of the individual has expanded in significant ways, although the value of the community is still recognised in crucial spheres. Indeed, the Law Commission had first considered making “irretrievable breakdown” a ground for divorce back in 1979, and then revived the recommendation in 2009. In 2006, the Supreme Court too had favoured inclusion of this factor among the grounds on which divorce could be granted to those individuals who no longer wished to continue their marriage. The general progressive disposition of the nation’s highest court in family matters was also evident when in 2008 it permitted live-in relationships, and more recently sanctioned a share in inheritance for children born out of wedlock. Nevertheless, it is the debate in Parliament that will be crucial in amending the marriage law to include a new ground for divorce. Even if Parliament chooses to hasten slowly, it should not throw out the issue. Providing for adequate safeguards — especially from the wife’s viewpoint — is, of course, called for.