On numerous occasions during hearing of matrimonial disputes, Justice Arijit Pasayat, a senior Supreme Court judge, had commented in lighter vein, “The Hindu Marriage Act (HMA) has broken more homes than it has united.’’ One such recent observation hit the headlines.
    Divorce is not a new phenomenon but is as old as civilization itself. Prior to codification of the Hindu personal law, there were ways and means to terminate a marriage, but it was so loaded in favour of men that women’s opinion or grievances were seldom taken into account.
    With the Constitution guaranteeing right to equality, codification of Hindu personal law—part of which is the HMA—made men and women equal partners in a marriage. Equal rights of women in marriage was one of the main considerations for a bench of Justices Pasayat and S H Kapadia to direct all state governments on August 14, 2006, to compulsorily register marriages.
    The aim was to make accountable unscrupulous husbands, who after deserting their wives for other women often denied their marriages. Taking advantage of the absence of documentary proof they would frustrate court orders to pay alimony to their wives.
    Justice Pasayat could not have seriously said the law enacted to give equal rights to women in marriage had broken more homes, as he was convinced about the utility of having the marriages registered. The law, thus, was enacted not to break marriages but to crystallize the rights of partners in marriage to help them live with self-respect.
    The court in a 2006 divorce case—Naveen Kohli vs Neelu Kohli—found that many a couple were being tied down to dead marriages just because one of them refused to consent to a divorce. It said: “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 seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld.’’
    For, the consequences of preservation in law of an unworkable marriage, the threejudge bench had said while recommending to the legislature to examine introducing “irretrievable breakdown of marriage’’ as a ground for divorce in the HMA.
    The law does not make or break a marriage. Couples need not be married to share a live-in relationship. The question is: Should a couple carry on with a marriage even when the cardinal principles for a harmonious matrimonial life break down—whoever may be at fault, the husband or the wife? <<back