Rapid growth in population has led to
a proportionate increase in the number of divorce cases. Many social factors are
responsible for the spurt in their numbers.

The most important
reason is that women have started asserting their legitimate equal status in the
family, refusing to be subjugated by their husbands for life as their
grandmothers used to be.

On numerous occasions during hearing of
matrimonial disputes, Justice Arijit Pasayat, a senior judge of the Supreme
Court, had commented in lighter vein — "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
civilisation itself. Prior to codification of the Hindu personal law, there were
ways and means to terminate a marriage, but it was so heavily 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 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 comprising 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 of
their marriage to frustrate court orders directing them to pay alimony to their
wives.

Justice Pasayat could not have seriously said that 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 crystallise
the rights of partners in marriage to help them live with
self-respect.

In the older days, a woman married to a schizophrenic
used to live on without complaining despite her husband being unable to
consummate the marriage.

The fear of taunts from society used to
make her swallow the mental torture. In 2006, a Supreme Court Bench comprising
Justices Ruma Pal and A R Lakshmanan ruled that abstinence by husbands due to
mental disorder was a valid ground for divorce for women.
Divorce was granted to one of
the parties to the marriage when he or she proved the other partner's fault,
listed as a ground for divorce in the Hindu Marriage Act. The court in a 2006
divorce case — Naveen Kohli vs Neelu Kohli — went a step further.

A three-judge Bench of the apex court 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, "which has long ceased to be
effective, are bound to be a source of greater misery for the parties", the
three-judge Bench had said while recommending to the legislature to examine
introducing "irretrievable breakdown of marriage" as a ground for divorce in the
HMA.

Why would the apex court add another ground to the already
home-breaking provisions of the Act? Because, it had never viewed in its
judgments through the years that HMA was a home-breaking law. For, the judges
were of the view that "foundation of a sound marriage is tolerance, adjustment
and respecting one another".

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?

In Naveen Kohli vs Neelu Kohli
case, the SC had said the courts need not get swayed by sentiments of a hard
case. For, "the ideal couple will have no occasion to go to matrimonial
court".

(dhananjay.mahapatra@timesgroup.com)