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The 'fault theory' vs the 'breakdown theory' of divorce By Rakesh Shukla Should divorce be granted solely on the basis of who is 'at fault'? Or should 'irretrievable breakdown' of a marriage be cause for divorce? In a recent judgment, the Supreme Court held that situations causing misery should not be allowed to continue indefinitely, and that the dissolution of a marriage that could not be salvaged was in the interests of all concerned The Hindu Marriage Act governing marriage between Hindus, and the Special Marriage Act governing marriage between individuals regardless of religious persuasion, are premised on the 'fault' or 'matrimonial offence' theory for the purpose of divorce. This, in effect, means that a person can be granted a divorce if, for example, it is established that the spouse has committed adultery, or has treated the person cruelly or deserted for more than two years. Thus the person has been "at fault" in some way. In addition, the wife can ask for a divorce on grounds that after marriage her husband was guilty of rape, sodomy or bestiality. Part of the fault theory is that a person cannot take advantage of his/her own wrong. For example, a person cannot commit adultery or inflict cruelty and then file a petition for divorce. Divorce can only be sought by the hurt or aggrieved party who has been at the receiving end of the other party's offending conduct. Other grounds for divorce are incurable unsoundness of mind, leprosy, a communicable form of venereal disease, renouncing the world, and soon. There has been an ongoing debate about whether divorce should be granted solely on the basis of the "fault of the party" or whether it should be based on the breakdown of marriage. Opinions remain divided among sociologists, lawmakers, reformers and even activists and feminists. Marriage as a sacrament, society's stake in the continuance of marriage, the duty of judges to effect a reconciliation between the parties, and public interest are some of the major factors that feature in this debate. Would introducing irretrievable breakdown as grounds for divorce work against the interests of women, given the gender disparities and large number of women deserted by their husbands? This remains a key area of concern within the women's movement. The Supreme Court had occasion to engage with irretrievable breakdown of marriage in the context of a recent case decided on March 21, 2006. Naveen Kohli and Neelu got married in 1975 and went on to have three children. Naveen was the proprietor of three factories. He filed for divorce in the family court in Kanpur on grounds of mental, physical and financial harassment and torture by his wife Neelu Kohli. The husband alleged that his wife was badtempered, rude, quarrelled and misbehaved with him and his parents. That, in 1994, he had been compelled to leave his parental residence and stay in a rented house. Allegations that Neelu Kohli had indulged in indecent behaviour with another man were also made. According to Naveen Kohli, Neelu had filed false criminal charges of cheating, forgery and causing injury by a weapon against him. That she had got their eldest son to file a case for having been beaten by the father. A case of cruelty, insult and criminal intimidation was also filed against the husband and his mother. In addition, a complaint had been filed before the Company Law Board describing the husband as a criminal, immoral, alcoholic and having had affairs with numerous women. It also denigrated his position from proprietor to employee in the company. In 1999, Neelu Kohli sent a notice asking for a partition of all properties and assets. The wife denied being rude or quarrelsome. She also denied mentally, physically or financially harassing or torturing her husband, and the allegations of immoral behaviour. Neelu claimed that her husband was immorally living with another woman. The family court found that the wife had filed a number of cases against her husband and had got the police to harass him. She had released an advertisement in the newspapers declaring that her husband was an employee in the factory, when in fact he was the proprietor. The court concluded that the husband was being mentally, physically and financially harassed by his wife. It held that both husband and wife had allegations of character assassination against them but had failed to prove these

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  • The'faulttheory'vsthe'breakdowntheory'ofdivorce

    ByRakeshShukla

    Shoulddivorcebegrantedsolelyonthebasisofwhois'atfault'?Orshould'irretrievablebreakdown'ofamarriagebecausefordivorce? In a recent judgment, the Supreme Court held that situations causingmisery should not be allowed to continueindefinitely,andthatthedissolutionofamarriagethatcouldnotbesalvagedwasintheinterestsofallconcerned

    TheHinduMarriageActgoverningmarriagebetweenHindus,andtheSpecialMarriageActgoverningmarriagebetweenindividualsregardlessofreligiouspersuasion,arepremisedonthe'fault'or'matrimonialoffence'theoryforthepurposeofdivorce.This,ineffect,meansthatapersoncanbegrantedadivorceif,forexample,itisestablishedthatthespousehascommittedadultery,orhastreatedthepersoncruellyordesertedformorethantwoyears.Thusthepersonhasbeen"atfault"insomeway.Inaddition,thewifecanaskforadivorceongroundsthataftermarriageherhusbandwasguiltyofrape,sodomyorbestiality.

    Partofthefaulttheoryisthatapersoncannottakeadvantageofhis/herownwrong.Forexample,apersoncannotcommitadulteryorinflictcrueltyandthenfileapetitionfordivorce.Divorcecanonlybesoughtbythehurtoraggrievedpartywhohasbeenatthereceivingendoftheotherparty'soffendingconduct.

    Othergroundsfordivorceareincurableunsoundnessofmind,leprosy,acommunicableformofvenerealdisease,renouncingtheworld,andsoon.

    Therehasbeenanongoingdebateaboutwhetherdivorceshouldbegrantedsolelyonthebasisofthe"faultoftheparty"orwhetheritshouldbebasedonthebreakdownofmarriage.Opinionsremaindividedamongsociologists,lawmakers,reformersandevenactivistsandfeminists.Marriageasasacrament,society'sstakeinthecontinuanceofmarriage,thedutyofjudgestoeffectareconciliationbetweentheparties,andpublicinterestaresomeofthemajorfactorsthatfeatureinthisdebate.

    Wouldintroducingirretrievablebreakdownasgroundsfordivorceworkagainsttheinterestsofwomen,giventhegenderdisparitiesandlargenumberofwomendesertedbytheirhusbands?Thisremainsakeyareaofconcernwithinthewomen'smovement.

    TheSupremeCourthadoccasiontoengagewithirretrievablebreakdownofmarriageinthecontextofarecentcasedecidedonMarch21,2006.

    NaveenKohliandNeelugotmarriedin1975andwentontohavethreechildren.Naveenwastheproprietorofthreefactories.HefiledfordivorceinthefamilycourtinKanpurongroundsofmental,physicalandfinancialharassmentandtorturebyhiswifeNeeluKohli.Thehusbandallegedthathiswifewasbadtempered,rude,quarrelledandmisbehavedwithhimandhisparents.That,in1994,hehadbeencompelledtoleavehisparentalresidenceandstayinarentedhouse.AllegationsthatNeeluKohlihadindulgedinindecentbehaviourwithanothermanwerealsomade.

    AccordingtoNaveenKohli,Neeluhadfiledfalsecriminalchargesofcheating,forgeryandcausinginjurybyaweaponagainsthim.Thatshehadgottheireldestsontofileacaseforhavingbeenbeatenbythefather.Acaseofcruelty,insultandcriminalintimidationwasalsofiledagainstthehusbandandhismother.Inaddition,acomplainthadbeenfiledbeforetheCompanyLawBoarddescribingthehusbandasacriminal,immoral,alcoholicandhavinghadaffairswithnumerouswomen.Italsodenigratedhispositionfromproprietortoemployeeinthecompany.In1999,NeeluKohlisentanoticeaskingforapartitionofallpropertiesandassets.

    Thewifedeniedbeingrudeorquarrelsome.Shealsodeniedmentally,physicallyorfinanciallyharassingortorturingherhusband,andtheallegationsofimmoralbehaviour.Neeluclaimedthatherhusbandwasimmorallylivingwithanotherwoman.

    Thefamilycourtfoundthatthewifehadfiledanumberofcasesagainstherhusbandandhadgotthepolicetoharasshim.Shehadreleasedanadvertisementinthenewspapersdeclaringthatherhusbandwasanemployeeinthefactory,wheninfacthewastheproprietor.Thecourtconcludedthatthehusbandwasbeingmentally,physicallyandfinanciallyharassedbyhiswife.Itheldthatbothhusbandandwifehadallegationsofcharacterassassinationagainstthembuthadfailedtoprovethese

  • allegations.Thecourtobservedthatalthougheffortshadbeenmadetowardsanamicablesettlementtherewasnocordialityleftbetweenthepartiesand,therefore,nopossibilityof"reconnectingthechainofmaritallifebetweentheparties".

    Thefamilycourtdissolvedthemarriage,directingthehusbandtodepositRs25lakhtowardspermanentmaintenanceofthewife.Thehusbanddepositedthemoneywithintwodaysofthejudgment.ThewifepreferredanappealagainstthegrantingofdivorceintheAllahabadHighCourt,whichheldthatthefamilycourthadnotproperlyevaluatedtheevidence.Itheldthatthehusbandwaslivingwithanotherwoman.Thewife'sappealwasallowedandthesuitfordivorcebythehusbanddismissed.ThehusbandappealedandthematterreachedtheSupremeCourt.ThejudgmentwasdeliveredinMarchandisreportedasNaveenKohliversusNeeluKohli,2006(3)SCALE252.

    AfternotingthatirretrievablebreakdownofmarriagewasnotgroundsfordivorceundertheHinduMarriageAct,thecourtwentaheadandexaminedtheconceptinthecontextofthepresentcaseandchangingsocialmoresinIndiaandaroundtheworld.

    TheLawCommissioninits71streport,submittedin1978,dealtwiththeconceptofirretrievablebreakdownofmarriage.Thereportmentionsthatasfarbackas1920,NewZealandwasthefirstoftheCommonwealthcountriestointroducetheprovisionthatathreeyearormoreseparationagreementwasgroundsforfilingapetitioninthecourtsfordivorce.In1921,inthefirstcaseofthegrantingofdivorceonthesegroundsinNewZealand,thecourtlaiddownthatwhenmatrimonialrelationshave,infact,ceasedtoexistitisnotintheinterestsofthepartiesorintheinterestofthepublictokeepamanandwomanboundashusbandandwifeinlaw.Thatintheeventofsuchaseparation,theessentialpurposeofmarriagehadbeenfrustratedanditsfurthercontinuance"notmerelyuselessbutmischievous".Thisformulationhasbecomeaclassicenunciationofthebreakdownprincipleinmatrimoniallaw.

    TheLawCommissionobservedthatrestrictingdivorcetomatrimonialdisabilityresultsinaninjusticeincaseswhereneitherpartyisatfault,orifthefaultisofsuchanaturethatthepartiesdonotwishtodivulgeitandyetthemarriagecannotbeworkedout.Itreferstoasituationwheretheemotionalandotherbonds,whicharetheessenceofmarriage,havedisappearedandonlyafaAaderemains.Thecommissionconcludesthatwhereamarriagehasceasedtoexistbothinsubstanceandinreality,divorceshouldbeseenasasolutionandanescaperouteoutofadifficultsituation.Suchadivorceshouldbeconcernedwithbringingthepartiesandthechildrentotermswiththenewsituationandworkingoutasatisfactorybasisforregulatingrelationshipsinthechangedcircumstances.Nottodwellonthe'wrongs'ofthepast.

    Thecourtreferstotheacceptanceofthesubstitutionofbreakdowninplaceofmatrimonialoffencesasabasisfordivorce,bythegeneralassemblyoftheChurchofScotlandin1969.Thejudgmentquoteswithapprovaltheunderlyingrationalethat:"Matrimonialoffencesareoftentheoutcomeratherthanthecauseofthedeterioratingmarriage.Anaccusatorialprincipleofdivorcetendstoencouragematrimonialoffences,increasebitternessandwidentheriftthatisalreadythere."

    Observingthatadivorcelawbasedmainlyonfaultisinadequatetodealwithabrokenmarriage,thejudgmentstatesthatonceamarriagehasbrokendownitwouldbeunrealisticofthelawnottotakenoticeofthisfact.Accordingtothecourt,alongperiodofcontinuousseparationcouldbetakentosurmisethatthematrimonialbondisbeyondrepairandthatthemarriagehasbecome"afictionthoughsupportedbyalegaltie".

    Thejudgmentholdsthatrefusaltoseverthetieinsuchacasedoesnotservethesanctityofmarriageinfact,itshowsscantregardforthefeelingsandemotionsoftheparties.

    Thecourtobservesthatpublicinterestdemandsthatthemarriedstatusshould,asfaraspossible,aslongaspossibleandwheneverpossible,bemaintained.However,whereamarriagehasbeenwreckedbeyondanyhopeofitbeingsalvaged,publicinterestliesintherecognitionofthefact.Thejudgmentnotesthatthereisnoacceptablewayinwhichaspousecanbecompelledtoresumelifewiththeconsort,andthatnothingisgainedbytryingtokeepthepartiestiedforevertoamarriagethathasceasedtoexist.

    Rejectingtheviewthatirretrievablebreakdownasgroundsfordivorcewouldcreatemoreproblemsthanitwouldsolve,thecourtholdsthatsituationscausingmiseryshouldnotbeallowedtocontinueindefinitely,andthatthelawhasaresponsibilitytoadequatelyrespondtotheneedsofsociety.

    Comingtothefactsofthecase,thecourtnotesthatNaveenKohliandNeeluKohlihavebeenlivingseparatelyforover10years.Alargenumberofcriminalcasesoftheft,cheating,forgeryandcausinghurthadbeenfiledbythewifeagainstherhusband.Inaddition,NeeluKohlihadinitiatedcivilproceedingsagainstherhusband.Naveenhadinitiatedlegalproceedingsagainsthiswife.Thewifepublishingadvertisementsdescribingherproprietorhusbandasanemployeeandcautioningthe

  • worldnottodealwithhimcouldbesaidtoamounttomentalcruelty.ThecourtconcludedthatthemarriagebetweenNaveenandNeeluKohlihadbrokendownirretrievably,andthattherewasnochanceoftheirevercomingtogetherorlivingtogetheragain.

    Observingthatthemarriagehadbeenwreckedbeyondanyhopeofsalvation,thecourtheldthatpublicinterestandtheinterestsofallconcernedlayintherecognition,inlaw,ofthisfact.Thateventhoughthewifewasnotagreeabletoadivorcebymutualconsentandseemedtohaveresolvedtoliveinagonyonlytomakethelifeofherhusbandamiserablehell,publicinterestlayinthedissolutionofthemarriagebond.Keepingashamofamarriagealiveinlawwasheldtobemoreconducivetoimmoralityandpotentiallymoreprejudicialtothepublicinterestthanthedissolutionofmarriage.Notgrantingadivorceundersuchcircumstanceswasheldtobedisastrousfortheparties.Thegrantingofdivorcewouldofferthemthechance,bothpsychologicallyandemotionally,tosettledownafterawhileandstartanewchapterinlife.TheSupremeCourtdirectedthatthemarriagebetweenNaveenandNeeluKohlibedissolved,subjecttothehusbandgivingRs25lakhtothewifeaspermanentmaintenance.

    Further,thejudgment,takingintoconsiderationsocietalneeds,recommendsthatthegovernmentseriouslyconsiderbringinginanamendmenttotheHinduMarriageAct,1955,toincorporateirretrievablebreakdownofmarriageasgroundsforthegrantingofdivorce.

    (RakeshShuklaisaSupremeCourtlawyer)

    InfoChangeNews&Features,May2006


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