Law and Justice

Posts Tagged ‘Amendment’

The proposed Criminal Amendment Bill, 2010 is patently “anti-men” and is should be opposed by men. Draft amendment bill is available here:

http://mha.nic.in/writereaddata/12700472381_CriminalLaw(Amendment)Bill2010.pdf

Proposed Section 375 defines “Sexual Assault” as,

“A man is said to commit “sexual assault” if he –

(a) penetrates the vagina, the anus or urethra or mouth of any woman with

(i) any part of his body; or

(ii) any object manipulated by such man

except where such penetration is carried out for proper hygienic or medical purposes;

(b) manipulates any part of the body of woman so as to cause penetration into the vagina, the anus or the urethra of the offender by any part of the woman’s body;

(c) introduces any part of his penis into the mouth of woman,

under the circumstances falling under any of the following six descriptions:-”

Thus the definition of “sexual assault” is gender biased against men. It says three things-

A. Sexual assault can be committed only by “Men”.

B. Sexual assault can be committed only against a “women”.

C. There cannot be any sexual assault by a woman or against a man.

There is no reason to keep such laws of sexual assault gender biased as incidents of sexual assault against men are known and widely reported. The proposed law is merely another anti-men legislation by the Government of India.

The definition of the crime is very wide. Thus if a man puts his finger in women’s mouth, it is an offence punishable with minimum sentence of 7 years. However, if the same act is done by a women against a man, it is not an offence at all! Why this gender discrimination? Why the society is out there to enslave men by passing more and more anti-men laws? What wrong men have committed for which society is punishing him?

Sexual intercourse by a man without consent of a women is sexual assault. But the same is not a sexual assault if a women do sexual intercourse with a man without his consent. It is argued that women cannot force a man to have sexual intercourse without his consent! The argument is fallacious and there are reported incidents of such sexual assault on men. Further when a man’s consent is taken by coercion, threat, fraud, by administering drugs or narcotic substances, consent of a minor or insane man! Why the law is hell bound to deny any avenue to justice to men who has suffered sexual assault.

It is argued that number of cases of assault on men is less. Merely because male victims of sexual assault is in minority can be no reason to deny justice to men.

Even in case of minor, a women having sexual intercourse with a minor male is not an “sexual abuse of minor”.

Section 376C(1) defines sexual abuse of minor. It says that “A person is said to commit sexual abuse of minor against the minor under the age of eighteen years if the person:

(i) Penetrates his penis into the vagina, anus or urethra or mouth of the minor

(ii) Manipulates any object or part of his or her body or that of the minor so as to cause penetration into the vagina, the anus or urethra or mouth of the minor with or without the will or the consent of the minor.

Looking at the proposed definition, it is clear that a man having sexual intercourse with a minor girl is sexual abuse, however a women having sexual intercourse with a minor boy is not a sexual abuse, because in this case nothing is penetrated in the vagina, anus, urethra or mouth of the minor!

Men need to understand such nuances in the proposed legislation.

A new Section 53A is being introduced in the India Evidence Act, which says that, character of the victim is irrelevant in deciding the question of consent. It is not known as to how the question of consent is to be decided is not known. Further, the law proposes that the cases shall be as far as possible shall be investigated/tried by women. Thus through this legislation, a law is being enacted which makes gender biased penal law to be implemented by gender biased state machinery.

Various studies suggest that numerous false cases are filed alleging rape. Various studies suggest that a very large percentage of such allegations are false. Many such cases have also been reported in India media.

http://en.wikipedia.org/wiki/False_accusation_of_rape

Despite such evidence, the proposed amendment squarely ignores any of these concerns. On the contrary proposed amendment various changes in law, procedure and evidence is being made to promote more such false allegations, to promote more extortion from men, to make is more difficult to get justice for men.

Since ages men are dying to produce food and security for everybody in the society. And now it appears that society does not need men. Through various laws, society is making dangerous for men to live. In today’s world, it is greatest sin to be born as man. A man is punished for whole life merely because he was born as a man. Various suicide statistics shows that more and more men are committing suicide due to such gender biased attitude of the society and law.

Such law is coming after Law Minister promised that all laws shall be made gender neutral in four years. Just after the promise, women reservation bill was presented in the parliament. What is a gender neutral law? Women Reservation in parliament is a gender neutral law? Declaring men to be sex assaulter is a gender neutral law? Not protecting minor males from sexual intercourse by women is a gender neutral law?

The proposed amendment should be opposed because it is “Anti-men”.

 

 

 

 

 

 

 

 

 

LAW COMMISSION OF INDIA (REPORT NO. 217)

 

 

 Irretrievable Breakdown of Marriage – Another Ground for Divorce

 

 

 

 

 

 

 

 

 

 

Forwarded  to   the  Union   Minister   for   Law   and Justice, Ministry of Law and Justice, Government of India  by  Dr.  Justice  AR.  Lakshmanan,  Chairman, Law Commission of India, on  the   30th           day  of March, 2009.

 

 

 

The  18th    Law   Commission  was  constituted  for  a period of three years from  1st   September, 2006 by Order  No.  A.45012/1/2006-Admn.III  (LA)  dated  the

16th     October,  2006,  issued  by the  Government of India, Ministry of Law and Justice, Department of Legal Affairs, New Delhi.

 

 

 

 

The Law Commission consists of the Chairman, the Member-Secretary, one full-time Member and seven part-time Members.

 

 

 

 

Chairman

 

 

Hon’ble Dr. Justice AR. Lakshmanan

 

 

Member-Secretary

 

 

Dr. Brahm A. Agrawal

 

 

Full-time Member

 

 

Prof. Dr. Tahir Mahmood

 

 

Part-time Members

 

 

Dr. (Mrs.) Devinder Kumari Raheja Dr. K. N. Chandrasekharan  Pillai Prof. (Mrs.) Lakshmi Jambholkar Smt. Kirti Singh

Shri Justice I. Venkatanarayana

Shri O.P. Sharma

Dr. (Mrs.) Shyamlha Pappu

 

 

 

The Law Commission is located in ILI Building,

2nd  Floor, Bhagwan Das Road, New Delhi-110 001

 

 

 

Law Commission Staff

 

 

 

 

Member-Secretary

 

 

Dr. Brahm A. Agrawal

 

 

 

 

Research Staff

 

 

Shri Sushil Kumar         :    Joint    Secretary&    Law

Officer

Ms. Pawan Sharma               : Additional Law Officer

Shri J. T. Sulaxan Rao       : Additional Law Officer

Shri A. K. Upadhyay              : Deputy Law Officer

Dr. V. K. Singh                       :Assistant             Legal

Adviser

Dr. R. S. Shrinet                : Superintendent (Legal)

 

 

 

 

Administrative Staff

 

 

Shri Sushil Kumar         :    Joint    Secretary&    Law

Officer

Shri D. Choudhury        : Under Secretary Shri S. K. Basu                                        : Section Officer Smt. Rajni Sharma                                       : Assistant Library &

Information Officer

 

 

 

 

 

 

 

 

 

 

 

at:

 

The text of this Report is available on the Internet

 

 

http://www.lawcommissionofindia.nic.in

 

 

 

 

 

 

©      Government of India

Law Commission of India

 

 

 

 

 

 

 

 

 

 

 

 

The    text    in     this    document    (excluding    the Government             Logo) may be      reproduced free               of charge in any format or medium provided that it is reproduced accurately and not used in a misleading context.  The  material       must      be  acknowledged    as Government copyright and the title of the document specified.

 

 

 

 

 

Any  enquiries  relating  to  this  Report  should  be addressed to the Member-Secretary and sent either by post to the Law Commission of India, 2nd   Floor, ILI Building, Bhagwan Das Road, New Delhi-110001, India or by email to lci-dla@nic.in

 

 

 

 

 

 

 

 

 

 

 

 

 

 

D.O. No. 6(3)/155/2009-LC (LS)              30th March, 2009

 

 

 

Dear Dr. Bhardwaj Ji,

 

 

Subject: Irretrievable Breakdown of Marriage – Another Ground for Divorce

 

 

I    am    forwarding     herewith    the    217th      Report    of    the    Law

 

Commission of India on the above subject.

 

 

 

Section 13 of the Hindu Marriage Act, 1955 provides grounds for presentation of a petition for divorce.  Section 27 of the Special Marriage Act, 1954 similarly provides grounds for grant of divorce in the case of a marriage solemnized under the Act.  However, the said Acts  do  not  provide  “irretrievable  breakdown  of  marriage”  as  a ground for divorce. The Law Commission of India in its 71st    Report titled “The Hindu Marriage  Act,  1955 – Irretrievable  Breakdown of Marriage as a Ground of      Divorce”   recommended  amendments in the Hindu Marriage Act to make irretrievable breakdown of marriage as a new ground for granting divorce among the Hindus. Recently, the Supreme Court also in Naveen Kohli v. Neelu Kohli (AIR 2006 SC

1675) recommended  to  the  Union  of  India  to  seriously  consider bringing  an   amendment   in    the   Hindu   Marriage   Act,  1955   to

 

 

 

incorporate irretrievable breakdown of marriage as a ground for the

 

grant of divorce.

 

 

 

In view of the above, the Law Commission of India suo motu took  up the  study of  the subject.  The Commission examined  the extant legislations as well as a number of judgments of the Supreme

Court  and  High  Courts  on  the  subject  and  is  of  the  view  that

 

 

“irretrievable  breakdown  of  marriage”  should

 

 

be  incorporated  as

 

 

another   ground  for granting divorce under the provisions of     the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. The Court before granting a  decree for divorce on the ground that the marriage has irretrievably broken down should also examine whether adequate financial arrangements have been made for the parties and children.

 

 

The Commission has accordingly made its recommendations in this Report.

 

 

With warm regards,

 

 

 

Yours sincerely, (Dr. AR. Lakshmanan)

Dr. H. R. Bhardwaj,

Union Minister for Law and Justice, Government of India

Shastri Bhawan, New Delhi-110 001.

 

 

 

 

 

 

 

 

 

 

 

 

 

Irretrievable Breakdown of Marriage – Another Ground for Divorce

 

 

 

 

 

Table of Contents

 

INTRODUCTION                                            9-

11

 

 

 

 

 

JUDICIAL VIEW/SUGGESTIONS                12-

22

 

 

 

 

 

RECOMMENDATION                                23

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I.      INTRODUCTION

 

 

 

 

1.1     Whenever the question of inclusion of irretrievable breakdown of marriage as a ground for divorce is mooted, the opponents argue that “divorce by mutual consent”  introduced  in the Hindu Marriage Act in 1976 more than covers the situation.      It is important to  note that “mutual consent” requires the consent of both the parties and if one or the other does not cooperate, the said ground is not available. ‘Irretrievable breakdown of marriage’, on the other hand, is a ground which the Court can  examine and if the Court, on the facts of the case,    comes        to               the         conclusion that      the    marriage cannot       be repaired/saved, divorce can be granted.  The grant of divorce is not dependent on the volition of the parties but on the Court coming to the    conclusion, on        the          facts pleaded,     that       the    marriage      has irretrievably broken down.

 

 

1.2        Irretrievable  breakdown  of  marriage-  The foundation  of  a sound marriage is  tolerance, adjustment  and respecting  one another.                Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage.                  Petty  quibbles, trifling differences should not be exaggerated and magnified to destroy  what  is  said  to  have  been  made  in  heaven. All

 

 

 

quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and always keeping  in  view  the  physical  and  mental  conditions  of  the parties, their character and social status.  A too technical and hypersensitive approach would be counter-productive to the institution of marriage.                          The Courts do not have to deal with ideal husbands and ideal wives.                      It has to deal with particular man and woman before it.1

 

 

1.3     In    Naveen   Kohli    v.    Neelu    Kohli2           the    Supreme     Court recommended to the Union of India to seriously consider bringing an amendment          in         the      Hindu                    Marriage      Act,   1955      to          incorporate irretrievable breakdown of marriage as a  ground for divorce in the following words:

“Before  we part  with this  case,  on  the  consideration  of  the

 

totality of facts, this Court would like to recommend the Union of India to seriously  consider bringing an amendment in the Hindu          Marriage       Act,     1955   to              incorporate           irretrievable breakdown of marriage as a ground for the grant of divorce. A copy of this judgment be sent to the Secretary, Ministry of Law

& Justice, Department of Legal Affairs, Government of India for taking appropriate steps”3

 

 

1.4     Earlier, in Ms. Jorden Diengdeh v.  S. S. Chopra4  the Supreme

 

Court observed:

 

1     Mayne’s Treatise on Hindu Law & Usage (16th    Ed.) Revised by Justice Ranganath Misra (New

Delhi: Bharat Law House, 2008),  page 292.

2             AIR   2006   SC

1675.

3             Ibid., para

96.

4               AIR  1985 SC 935.

“It    appears     to     be     necessary     to    introduce     irretrievable breakdown  of  marriage  and  mutual  consent  as  grounds  of divorce in all cases.…We suggest that the time has come for the intervention of the legislature in those matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situation in which couples like the

present have found themselves.”5

1.5     It is pertinent to notice that the Law Commission of India has already submitted a very comprehensive 71st   Report on irretrievable breakdown of marriage as a ground of divorce.  The matter had been taken up       by the Commission as a result of a reference made by the Government of India. The Law Commission under the Chairmanship of Shri Justice H. R. Khanna presented its Report on April 7, 1978. The Report considered  the suggestion  and  analyzed the same in extenso. Before embarking upon further action on the suggestion that irretrievable breakdown of marriage should be made as a ground for divorce,  the  Law  Commission  considered  it  appropriate  to  invite views              on         the     matter          by           issuing           a     brief    questionnaire.    The Commission in its 71st   Report have accepted in principle irretrievable breakdown of marriage as a ground of divorce and also examined the question  as to how exactly to incorporate  it into the Act and also further  examined  the question  whether  the introduction  of such  a ground  should  be coupled  with  any safeguards.  The  Commission also in Chapter II of the said Report considered present law under the  Hindu  Marriage  Act, merits  and  demerits    of         the          theory            of irretrievable breakdown of marriage in Chapter IV and retention of

5          Ibid., para

7.

 

other grounds of divorce in Chapter V. In Chapter VI the Commission also considered the  requirement of living apart and also suggested many   safeguards like   welfare        of              children,          hardship       and recommended   amendments  to           Sections  21A,  23(1)(a)  and  also recommended insertion of new sections 13C, 13D and 13E.

 

1.6     In the light of the above, the Law Commission suo motu took up the study on the subject.

 II.      JUDICIAL VIEW/SUGGESTIONS

2.1     A law of divorce based mainly on fault is inadequate to deal with a  broken  marriage.                               Under  the  fault  theory,  guilt  has  to  be proved;  divorce  Courts  are  presented  with  concrete  instances  of human behaviour as bring the institution of marriage into disrepute.6

Once  the  marriage  has  broken  down  beyond  repair,  it  would  be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interest of the parties.     Where there has been a long period of continuous separation, it may fairly be  surmised  that  the  matrimonial  bond  is  beyond  repair.                                                          The marriage  becomes  a  fiction,  though  supported  by  a  legal  tie,  by refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.                           Public  interest  demands  not only  that  the  married  status  should,                             as    long    as    possible,    and whenever possible, be maintained, but where a marriage has been

 6            71st       Report of the Law Commission  of India.

wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.  Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.  Human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage.    Law cannot turn a blind  eye to such situations, nor can it decline to give adequate response to the necessities  arising therefrom.7     The Supreme Court in Naveen Kohli vs. Neelu Kohli8    recommended  to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate  irretrievable  breakdown  of  marriage  as  a  ground  for divorce.

2.2     The irretrievable breakdown of marriage is not a ground for divorce by  itself.        But  while  scrutinizing  the  evidence  on  record  to  determine whether  the  grounds  on  which  divorce  is  sought                                              are  made  out,  the circumstances can be taken into consideration.                                               No divorce can be granted on the  ground of irretrievable breakdown of marriage if the party seeking divorce on this ground is himself or herself at fault.  The decree of divorce on  the  ground  that  the  marriage  has  irretrievably  broken  down  can  be granted in those cases where both the parties have levelled such allegations against each other that the marriage appears to be practically dead and the parties cannot live together.  The power of the Court to grant divorce on the ground of irretrievable breakdown of marriage should be exercised  with

 7             Supra note 1, pages 292 –

293.

8          Supra note

2

much care and caution in exceptional circumstances only in the interest of both the parties.9

2.3     In  Geeta  Mullick  v.  Brojo  Gopal  Mullick10     the Calcutta  High Court held:

“In our considered opinion, the marriage between the parties can not be dissolved by  the trial Court or even by the High Court only on the ground of marriage having been irretrievably broken down, in the absence of one or more grounds as contemplated under section 13(1) of the Hindu Marriage Act,

1955.”11

 

2.4     The concept of irretrievable breakdown of marriage cannot be used as magic formula to obtain a decree for divorce where grounds for divorce are not proved.

 

2.5     In V. Bhagat v. D. Bhagat12  the Supreme Court held : “Irretrievable breakdown of the marriage is not a ground for divorce by itself. But while scrutinizing the evidence on record  to  determine  whether  the  ground(s)  alleged  is made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind.”13

9                 Supra note 1, page

293.

10           AIR  2003  Cal.

321.

11       Ibid.,  para

7.

12           AIR  1994  SC

 

 

 

710.

13          Ibid.,  para

23. 

2.6        The Calcutta  High  Court  in  Tapan  Kumar  Chakraborty  v.

Jyotsna Chakraborty14     held that in a petition for divorce on a ground as mentioned in the Hindu Marriage Act or the Special Marriage Act, court cannot grant divorce on the mere ground of

irretrievable breakdown of marriage.

 

2.7     In   Kanchan  Devi  v.  Pramod  Kumar  Mittal15,  however,  the

Supreme Court held:

 “…the marriage between the appellant and the respondent has irretrievably broken  down and that there was no possibility of reconciliation, we in exercise of our powers  under Art. 142 of the  Constitution  of  India  hereby  direct  that  the  marriage between   the   appellant   and   the   respondent   shall   stand

dissolved by a decree of divorce.”16

2.8     There  is  no  use  of  keeping  two  persons  tied  by  the  matrimonial relationship when they cannot live peacefully.  Where wedlock has become a deadlock, since parties are living separately, and after marriage the wife has lived only for a few months in the matrimonial home, wife having made allegations of cruelty and desertion against the husband and husband having made counter-allegations against her, the court in  Krishna vs. Som Nath17 held that marriage is irretrievably broken and it is in the interest of justice that decree of divorce be granted so that both the parties can live in peace. When the court finds in facts as well as from talks of resettlement or reconciliation  between  parties  that  there  was  no  possibility  of  reunion

 14           AIR  1997  Cal.

134.

15             AIR   1996   SC

3192.

16        Ibid.,  para

6.

17               (1996)   DMC   667 (P&H).

between  husband  and wife  and  refusal  of decree of divorce would  only prolong  the agonies of the  spouses, it can dissolve the marriage on this ground.18          Where the husband and the wife are living separately from each other for the last 19 years and there is no chance of settlement between the parties                        a  decree  for  divorce  can  be  granted.19               Where  there  was  no consummation  of  marriage,  wife                being  adverse  to  cohabitation,  wife disobeyed instructions of the court to undergo medical examination to prove that marriage had not consummated, there was indecent behaviour of wife to her in-laws reflecting her mental imbalance, and the parties have been living separately  for  a  period  of  16          years  without  any  serious  attempt  for reconciliation, a decree dissolving the marriage would be proper.20

 2.9        The  Supreme  Court    in    Savitri  Pandey   v.    Prem    Chandra Pandey21          held that  marriage  between  the parties  cannot  be dissolved only on the  averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive.  The legislature, in its wisdom, despite observation of the Supreme Court has not thought it proper to provide for  dissolution of the marriage on such averments.              There may be cases where it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity of marriage cannot be left at the whims of one of the annoying spouses.

 18         Ashok  v.  Rupa,  1996  (2)  HLR  512 (Guj).

19        Shankar  v. Puspita,  AIR 2005 Jhar.

21    AIR 2002 SC 591

92.

20              Rita   v.   Trilokesh,   AIR   2007

Gau.122.

2.10 In  Vinita  Saxena  v.  Pankaj  Pandit22, the  marriage  between Vinita Saxena and her husband Pankaj Pandit was dissolved by an order  of  the  Supreme  Court.   The  marriage  between  the  parties lasted only for five months.  Both of them were living separately for over 13 years.  Marriage also was not consummated.     Wife filed a petition for the dissolution of marriage on the ground of physical and mental cruelty and insanity on the part of the husband.                          Trial  court however dismissed  the petition.    High                                                      Court  also  dismissed     the appeal despite the failure of the husband to appear before the court. Allowing  the appeal of the wife,  a division bench of the Supreme Court speaking through Dr.  Justice AR. Lakshmanan ( as he then was ) held that the orders of the courts below had resulted in grave miscarriage of justice to the wife who had been constrained into living with a dead relationship for over 13 years and that the fact situation clearly showed that the husband  and wife can never ever stay as husband and wife and the wife’s stay with the respondent  husband would be injurious to her health. Accordingly, a          decree               of      divorce was granted in  favour of the wife against the husband. The Court held as follows:

“36.  As  to  what  constitute  the  required  mental  cruelty  for purposes of the said provision, will not depend upon the numerical count of such incidents or only on  the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious  effect  of it on  the mental  attitude,  necessary  for maintaining a conducive matrimonial home.

22              JT 2006 (3) SC

587. 

37. If the taunts,  complaints  and reproaches  are of ordinary nature  only, the                        court  perhaps           need  consider  the    further question as to whether their continuance or persistence over a period of time render, what normally would,  otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.

 

44. Spouses owe rights and duties each to the other and in their relationship they must act reasonably.                            In  every  case where cruelty exists it is possible to say that the spouse at fault has been unreasonable.   The list of cruelty, therefore,  should be reach of the duty to act reasonably, whether in omission or commission,  causing  injury  to  health.      Such    a    list    avoids imputing an intention where in fact none may exist.  Further all such matters are foresight, desires, wishes, intention, motives, perception, obtuseness, persistence and indifference would remain relevant but merely as matter of evidence bearing upon the requirement to act reasonably or as aggravation of the matters charged.

 

49.     Humane aspects which this Court should consider:

 -        The appellant was 24 years of age when she got married.

-         The marriage lasted for four to five months only when she was compelled to leave the matrimonial home. The marriage between the parties was not consummated as the respondent was not in a position to fulfil the matrimonial obligation.

–         The parties  have been  living separately since  1993.      13 years have passed they have never seen each other. Both the parties have crossed the point of no return. A workable solution is certainly not possible. Parties at this stage cannot reconcile themselves and live together forgetting their past as a bad dream. Parties  have been fighting  the  legal  battle  from the year 1994.-         The situation between the parties would lead to a irrefutable conclusion that the appellant and the respondent can never ever stay as husband and wife and the wife’s stay with the respondent is injurious to her health. –         The  appellant    has  done  her  Ph.D.         The    respondent, according    to    the    appellant,    is    not    gainfully    employed anywhere.

-         As a matter of fact, after leaving his deposition incomplete during the trial, the respondent till date has neither appeared before the trial court nor before the High Court.

 50. The  facts  and  circumstances  of  the  case  as well  as all aspects  pertain  to  humanity  and  life  would  give  sufficient cogent reasons for us to allow the appeal and relieve the appellant from shackles and chain of the respondent and let her live her own life, if nothing less but like a human being.”2.11 In Samar Ghosh vs Jaya Ghosh23   the Supreme Court referred to the 71st    Report  of the Law Commission of India on “Irretrievable Breakdown  of Marriage” with approval as follows:

 “90. We have examined and referred to the cases from the various countries.  We find strong  basic similarity in adjudication  of cases relating to mental cruelty in matrimonial matters.  Now, we deem it appropriate to deal with the 71st Report of the Law Commission of India on “Irretrievable Breakdown of Marriage”.

 91. The 71st  Report of the Law Commission of India briefly dealt with the concept of irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. In this Report, it is mentioned that during last 20 years or so, and now it would be around

50 years,  a  very  important  question  has  engaged  the  attention  of lawyers,  social  scientists  and  men  of  affairs,  should  the  grant  of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown                     theory.     It     would     be     relevant     to      recapitulate recommendation of the said Report.

 92. In the Report,  it is mentioned that the germ of the breakdown theory,  so far as  Commonwealth  countries  are concerned,  may be found  in the legislative  and judicial  developments  during  a much earlier period. The (New Zealand) Divorce and Matrimonial  Causes Amendment Act, 1920, included for the first time the provision that a separation  agreement  for  three  years  or  more  was  a  ground  for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce  or not. The  discretion  conferred  by  this  statute  was  exercised  in  a  case Lodder v. Lodder (1921 New Zealand Law Reports 786). Salmond J., in  a     passage   which       has           now                    become      classic,    enunciated  the breakdown principle in these words:

 23               (2007)  4 SCC

511. ‘The Legislature must, I think, be taken to have intended that separation for three years is to be accepted by this Court, as prima facie a good ground for  divorce. When the  matrimonial  relation  has  for  that  period  ceased  to exist de facto, it should, unless there are special reasons 

to the contrary, cease to exist de jure also.

In general, it

is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such  a  separation  the  essential  purposes  of  marriage have  been  frustrated,  and  its  further  continuance  is  in

general not merely useless but mischievous

 

     

 

.’

 

 

93. In the said Report, it is mentioned that

restricting the ground of

divorce  to  a  particular  offence  or  matrimonial  disability,  causes

injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the  marriage do not want to divulge it, yet such a situation has

arisen in which the marriage cannot survive

.

The marriage has all the

external appearances of marriage, but none in reality. As is often put

pithily, the marriage is merely a shell out of which the substance is

gone.

In such circumstances, it is stated, there is hardly any utility in

maintaining the marriage as a facade

, when the

emotional and other

bonds which are of the essence of marriage have disappeared

.

               

94. It is also mentioned in the Report that in case the marriage has ceased  to exist  in  substance  and in reality,  there is no reason  for denying  divorce,  then  the  parties  alone  can  decide  whether  their mutual relationship provides the fulfilment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is  unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances.

 95. 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. The consequences  of  preservation  in  law  of  the  unworkable  marriage which has long ceased to  be effective are bound to be a source of greater misery for the parties.”

 2.12    Similarly, in  Sanghamitra Ghosh vs Kajal Kumar Ghosh24    the Supreme Court while referring to its earlier decision in  Ashok Hurra v Rupa  Bipin  Zaveri25,  also           reproduced  some         excerpts  from           the

aforesaid 71st Report of the Law Commission.

2.13 As stated earlier, the recent decision of the Apex Court in the case of Naveen Kohli vs. Neelu Kohli26   fully establishes the need for immediate  amendment  of  the  Hindu  Marriage  Act  to  incorporate

‘irretrievable breakdown of marriage’ as a ground for grant of divorce. The Court in that case  was dealing with a case where the parties were living separately for ten years.   There were, during this period, many             proceedings     between     the      parties,                      mostly            by              the    wife. Allegations  of misconduct were made on  both  sides, maintenance was demanded and paid and the proceedings lingered on causing deep anxiety and frustration to both sides.       The  husband  filed  for divorce on the ground available – cruelty.         The Trial Court granted him relief but the High Court turned down the divorce petition on the ground that the conduct of the wife did not fall within the parameters of ‘cruelty’ as defined in various judgments.                  The husband was bacK to square  one.  On appeal,  the Supreme  Court  granted  him relief. This was a classic case of consent being withheld by a spouse just for harassing the other spouse.                                                           The  Court  recommended  to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate ‘irretrievable breakdown of

marriage’ as a ground for grant of divorce.

 2.14 It  would  also  be  in  the  fitness  of  things  that  the  Special

Marriage  Act,  1954,  which  deals  with  the  civil marriages,  is  also considered for an amendment on similar lines.

III.     RECOMMENDATION

 3.1    It is, therefore, suggested that  immediate action be taken to introduce an amendment  in the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 for inclusion of  ‘irretrievable breakdown of marriage’ as another ground for grant of divorce.

3.2    The  amendment   may  also  provide  that  the   court  before granting a decree for divorce on the ground that the marriage has irretrievably broken down should also examine whether adequate financial arrangements have been made for the parties and children.

 3.3     We recommend accordingly.

 

(Dr. Justice AR. Lakshmanan) Chairman

 (Prof. Dr. Tahir Mahmood)                      (Dr. Brahm A. Agrawal) Member                                                                Member-Secretary

In 1966, Lyndon B. Johnson lauded that “it is the genius of our Constitution that under its shelter of enduring institutions and rooted principles there is ample room for the rich fertility of American political invention.” This leeway for “political invention” is what makes the US Constitution a living document, since not only do its contents change with the years, but also its interpretation.

Of the over 8,000 words in the Constitution today, only about 4,500 of them are from the original 1787 document. The first ten amendments, known as the Bill of Rights, weren’t added to the Constitution until 1791 and an additional seventeen have since been added. That being said, the fact that the US Constitution is not only the supreme law of the land, but also an extremely powerful symbol of America makes it extremely difficult to know when, why, and how to amend the dang thing.

In 1856, Abraham Lincoln – the go-to president for great quotes and warm, fatherly feelings – warned: “Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.” Which is more than a little ironic coming from a guy who not only suspended the writ of habeas corpus (which protects citizens against illegal imprisonment) just five years later, but also added the 13th Amendment to the Constitution during his short presidency. Lincoln clearly didn’t believe that maintaining the integrity of the Constitution meant serenading it to the tune of “Don’t Go Changin’.”

This opens up the nasty can of worms that is the letter of the law vs. the spirit of the law. Those who interpret the Constitution strictly argue that it was written by some of the brightest and best minds in American history, who thought long and hard about their exact word choice so that future generations wouldn’t have to. Those in favor of a more elastic interpretation, however, cite the document’s various instances of “historical flavor” to argue that the Constitution must be interpreted in accordance with the times; for instance, up until it was stricken from the document after the Civil War, part of Article I Section 2 of the Constitution referred to a slave as 3/5 of a person for census-taking purposes.

Of all the amendments added to the Constitution, only one was ever considered a bad enough idea to merit annulment. Passed in 1917 after years of hard campaigning by the temperance movement, the 18th Amendment legalized prohibition nationwide. Not only was the ban on alcohol completely ineffective, but it actually fueled a powerful underworld of crime and bootlegging (à la Great Gatsby) that give rise to mafia criminals such as Al Capone. Nevertheless, it took over 14 years before the 18th Amendment was repealed via the 21st Amendment.

In general, the more contentious parts of the Constitution are altered not through sweeping written changes, but through differences in interpretation. In 1907, New York mayor and future Supreme Court Justice Charles Evans Hughes famously said that “the Constitution is what the judges say it is.” Pretty hard to argue with, considering the historical context; since the 1880’s, the Supreme Court had been interpreting the word “people” in the Equal Protection clause of the 14th Amendment to include corporations, thereby severely restricting the government’s ability to regulate the abuses of big business.

The Supreme Court’s huge influence over constitutional law is the reason why all Supreme Court nominations undergo such harsh and prolonged scrutiny before being accepted to the bench. Perhaps Supreme Court Justice Hugo Black best expressed our ongoing concern over judges when he insisted in 1970 that the “Constitution was not written in the sands to be washed away by each wave of new judges.”

Supreme Court of India in its civil appellate jurisdiction adjudicated on a Patent dispute titled J. Mitra & Co. Pvt. Ltd. versus Asst. Controller of Patents & Design. & Ors..

The Supreme Court granted the leave and directed the High Court to adjudicate the matter in interest of justice for only two appeals of such kind were pending in the High Courts. The special circumstances arises because of dichotomy introduced for the first time by the Patents (Amendment) Act, 2005, in the Patent Law between “opposition to the pre-grant” and “opposition to the post-grant of patent” and “appeals against order passed by Controller of Patents under pre Grant or post grant opposition”.

It would be wise to state the brief facts of the matter in tabular form for better understating of the matter.

26.03.1999 Section 116 of the Indian Patents Act, 1970 amended by the Patents (Amendment) Act, 1999 w.e.f. March 26, 1999 that provides for appeal to High Court against orders passed by the Controller of Patents. At that time only provision/remedy to oppose the grant of patent was pre grant opposition.

14.6.2000 J.Mitra & Company Pvt. Ltd. the appellant herein filed an application for grant of Patent

25.06.2002 Patents (Amendment) Act, 2002 was promulgated by Legislature and to hear appeals against orders passed by the Controller Appellate Board established under Section 83 of the Trade Marks Act, 1999 was made the Appellate Board for the purposes of Patent Act (under Section 116) and under Section 117A provision was made that appeal against order of Controller under Section 25 (pre Grant Opposition) and other provisions shall lie only in the Appellant Board. But Section 116 and 117A were not notified and brought into force. Still at that time only provision to oppose the grant of patent was pre grant opposition under Section 25 and same brought into force vide Notification dated 20.5.2003.

20.11.2004 The application was notified by the Patent Office after scrutiny

Span Diagnostics Limited opposed the application under the provisions of Section 25 as stood then (Pre Grant Oppositon)

04.04.2005 The Legislature enacted the Patents (Amendment) Act, 2005 w.e.f. 01.101.2005 but not all provisions were simultaneously brought into force. Only certain sections of the Patents (Amendment) Act, 2005 were brought into force. Provisions for Pre Grant as well as Post Grant Opposition were made. But Section 117A was amended and expression Section “25” was replaced with Section 25(4),effectively meaning that appeal shall lie against order passed under Section 25(4) i.e. order passed by Opposition Board in Post Grant Patent. The Legislature allowed appeals only against decision passed by the Controller in a Post Grant Opposition not pre Grant Opposition. Though the provisions of Section 25 were brought into effect, but the provisions of Section 116 and 117A were not brought into effect.

21.03.2005 Pre-grant opposition was filed under Section 25(1) of the Patent Act. It is to be noted that Patent (Amendment) Act, 2005 was enacted only after filing of this opposition on 04.04.2005 but was brought into effect from 01.01.2005. Therefore only provision available for opposition on such date was under the Patent (Amendment) Act, 2002.

23.08.2006 Pre Grant Opposition was rejected by the Controller of Patents. And as the Section 116 and 117A was not enacted on such date only remedy was to file Appeal under the provisions of Section 116 of Patent (Amendment) Act, 2002 that provides for filing the appeal before the High Court.

22.09.2006 The patent was granted. From here contention of Appellant arises, that after grant of Patent

19.10.2006 Appeal filed before the High Court against the order passed by the Controller of Patents in the patent opposition being FAO no. 292/2006 & 293/2006.

02.04.2007 Provisions of Section 116 and 117A, brought into effect by notification by the Legislature

03.04.2007 Provisions of Section 117G, that called for transfer of all pending proceeding against any order or decision of Controller and all cases pertaining to revocation other than on a counter claim in a suit for infringement and rectification of register pending before any High Court to the Appellate Board was brought into effect by notification by the Legislature. The Appellate Board may proceed with the matter either de novo or from the stage it was so transferred.

In words of Hon’ble Supreme Court “This matter is a classic illustration of the confusion which has emerged on account of the postponement of in-part commencement of Patents (Amendment) Act, 2005.”

The enactment of Patents (Amendment) Act, 2005, introduced for the first time a dichotomy in the Patent Law between “opposition to the pre-grant” and “opposition to the post-grant of patent” and also as to “appeal” that may be preferred against any orders that may be passed by the Controller of Patents in opposition proceedings. No doubt, the Amendment Act of 2005 brought major structural change in the Indian Patent Law as per India’s Obligation under WTO/GATT. As per the amendment the appeals against orders passed under the post-grant opposition by the Controller shall lie before the Appellate Board and not to the High Court. But the enabling provision i.e. Section 117A was not brought into force till April 2, 2007. Therefore, appeal if any has to be preferred before the High Court under Section 116 of the Patent (Amendment) Act, 1999.

Though the provisions for an appellate forum to hear appeals against order passed by the Controller of Patents were enacted by legislature in 2002, the Govt was not able to start functioning of the Appellate Tribunal till April 2007 and hence Section 116 and 117A were not brought into force.

The Legislature intended to provide for only one statutory appeal against order passed by the Controller that too in a Post Grant Opposition to the Appellate Board but by not bringing Amending Section 61 into force till April 02, 2007, appeals filed during the interregnum i.e. between 01.01.2005 to 01.04.2007, as in this case, became vulnerable and liable to be dismissed as misconceived as contended by the appellant before Supreme Court.

Supreme Court observed “quite often the commencement of an Act is postponed to some specific future date or to such date as the Appropriate Government may, by notification in the Official Gazette, appoint. At times provision is made for appointment of different dates for coming into force of different parts of the same Act.”

“An Act cannot be said to commence or to be in force unless it is brought into operation by legislative enactment or by the exercise of authority by a delegate empowered to bring it into operation.”

The Court while applying the above tests to the present case found that for the first time a dichotomy was introduced in the Patent Law by providing vide Section 25(1) for “opposition to pre-grant” and vide Section 25 (2) for “opposition to post-grant” of paten under the Patents (Amendment) Act, 2005. Earlier, there was no “post-grant opposition” and the only provision of challenge was a “pre-grant” challenge under Section 25 (1). By Patents (Amendment) Act, 2005, under Section 25(2) right is granted to an “aggrieved person” to challenge the patent even after its grant and the grounds of challenge are identical to Section 25(1) of the Act. Therefore giving a right after grant but limiting the right to only an “aggrieved person” and fixing the limitation period to one year after grant.

Though the Legislature further intended to limit the right to appeal only to post grant oppositions and obliterate appeal from “pre-grant proceedings” but the Executive did not bring the enacted law (Chapter XIX having provisions for appeals to the appellate board i.e. Section 116 and 117 A to H) into force vide a notification simultaneously along with other provisions of the Act especially Section 25 (1) and (2). As a result the chapter XIX containing amended Sections 116 and 117A(2) were not brought into force only on 2.4.07 (and 117G on 03.04.2007) whereas the concept of “Pre grant” and “Post-grant” oppositions were already brought into force w.e.f.1.1.2005. In words of the Hon’ble Supreme Court:

“This is where the legislative intent got defeated during the interregnum.”

During that period only the Respondent filed appeals against the orders rejecting the Pre Grant Oppositions by Controller of Patents being FAO No. 292/06 and 293/06 before the High Court under Section 116 of the Patents (Amendment) Act, 1999 , as it stood on date of filing of appeal i.e. October 19,2006”. On the date of filing of appeal, the amended Section 117A, suggested by Patents (Amendment) Act, 2005, was not brought into force, therefore, the Patents (Amendment) Act, 1999 prevailed under which an appeal lay before the High Court.

The Supreme Court held “Taking into account the complexities involved in this case, on account of a hiatus created by reason of the law not being brought into force in time, we are of the view that the first appeals, filed by respondent no.3 in the High Court being FAO No.292/06 and FAO No.293/06, would remain in the High Court. The said appeals would be heard and disposed of by the High Court in accordance with law under Section 116 of the said 1970 Act as it stood on 19.10.06. The High Court will hear and decide the validity of the Order passed by the Controller dated 23.8.06 rejecting “pre-grant opposition” filed by respondent no.3. We are informed that there are hardly one or two matters of this nature which are pending.

Therefore, we are of the view that respondent no.3 cannot be let without remedy. In the special circumstances of this case, particularly when after 2.4.07 appeals against orders rejecting “pre-grant opposition” are not maintainable and particularly when FAO No.292/06 and FAO No.293/06 were filed by respondent no.3 prior to 2.4.07 under the old law, we are of the view that these two appeals shall be heard and decided by the High Court in accordance with law. The Appellate Board after 2.4.07 is entitled to hear appeals only arising from orders passed by the Controller under Section 25(4), i.e., in cases of orders passed in “post-grant opposition”. Therefore, there is no point in transferring the pending FAO No.292/06 and FAO No.293/06 to the Appellate Board which has no authority to decide matters concerning “pre-grant opposition”. Moreover, it may be noted that even Section 117G, which refers to transfer of pending proceedings to the Appellate Board, is also brought into force vide Notification dated 3.4.07. Keeping in mind the peculiar nature of the problem in hand, we are of the view that ends of justice would be subserved if the High Court is directed to hear and decide the appeals bearing FAO No.292/06 and FAO No.293/06 in accordance with law as it then stood, i.e., under Section 116 under Patents (Amendment) Act, 1999 against Orders passed by the Controller in “pre-grant opposition” proceedings.

The Section 6 of the General Clauses Act 1897 clarified the position of law and intent:

6. Effect of repeal.- Where this Act , or any Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not—

….

c). affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

The provision along with ratio laid down by Hon’ble Supreme Court in GSK case concerning the Exclusive marketing rights (GSK Case) made amply clear that where any enactment is repealed, it shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed, unless, a different intention appears.

Applying the same ratio in the present matter, though the rights were accrued to respondent before the provisions of Section 116 as envisaged under Patents (Amendment) Act, 2005 was enacted, but the provisions of Section 117A made very clear that intention of legislature is different i.e. no appeal shall lie against any order passed by Controller of Patents in Pre Grant Oppositions.

The pendency of only very few such appeals against pre grant orders during the interregnum made the Hon’ble Supreme Court to keep the matter with the High Court. Otherwise, the interpretation of “appealable orders” under 117A read with 117G might have settled the position of law as to what about the provisions against which right to appeal is taken away subsequently.

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