Law and Justice

Posts Tagged ‘Divorce’

But finding the one that best suits your needs to first get some advice and then possibly filing for a divorce can be a little daunting when you take a peek inside the local phone book. When you are dealing with a possible divorce, it may be very confusing and even downright scary for you. To add to the problem, you have no idea where to start in looking for a good attorney or a reputable MN Law Firm. Unless you have friends in the law field or know someone who has gone through a divorce, the task is even more troublesome to you.

But, finding a good attorney at a good MN Law Firm can be accomplished with a few proper steps and possibly a few hours of checking out the many Law Firms first. One of the first places to check should be the local county or state Bar Association. They have lists of attorneys by specialty that can help. Your best bet is to find a family law attorney who specializes in divorces.

The reason it is important to have someone that is a member of a MN Law Firm that specializes in family law, is that there are many issues that may arise in a divorce that also can cause concerns in other family matters, like child custody, what to do with real estate and personal property and even inheritances and other family law matters. Another good place to check is with your county services crisis department and ask if there are any divorce support groups in your area. These groups usually have someone you can contact to find a good divorce attorney as most divorce attorneys stay in frequent contact with these groups and often refer clients to them for additional moral support.

Another place is the local phone book or the online Yellow Pages and search engines (like Google, Yahoo! Search, MSN Search or Bing). After making a list of those that sound good, are listed as family law specialists and somewhat near you, give them a call and ask a few questions about your possibly needing a divorce attorney. Ask if they offer a free consultation with a divorce lawyer and if they have a range of retainer fees that need to be placed before they can start working on your case. A few other things would be if they have more than one divorce lawyer or several, how heavy their caseload is (this can signal a little about how much time they have to work on your case) and whether the firm is certified as a family law specialist.

Then try to schedule a free consultation with each of those you think might meet your needs. This is a good way to see which attorneys and MN Law Firm that you feel suit both your needs and your confidence in them to do the best job possible for you in protecting your rights and seeing that your divorce is as equitable as possible. You will also be able to find out how much of a retainer they need and what their final fees may be in your particular divorce case.

While little can be done immediately to normalize your life at the moment, retaining a reputable and trustworthy MN Law Firm is still the first thing to do and a good divorce attorney will be able to provide you with some comfort in knowing you have someone who is concerned about your well being and your future. By accomplishing some of these suggestions in selecting a MN Law Firm to help you through a divorce, you can rest assured your case will be handled in a caring and respectful manner and your dilemma will be held in a completely confidential manner.

Brown Family Law is a MN Law Firm of divorce lawyers and attorneys focusing on Divorce and Family Law cases. Our attorneys represent clients throughout Minneapolis and the Twin Cities area. Call or contact us or visit our MN Law Firm Blog for information and guidance in contested divorce, uncontested divorce, child custody cases, child support, and more.

When it comes to sports and pastimes, we usually let the experts handle the game. It is no different if you are looking at facing a divorce, you should let the experts handle the law’s game plan, the game plan of having everything right the first time so your divorce can be affected quickly and there are no surprises. A MN Divorce Law Firm specializes in Family Law and Divorce falls under this category of legal action. However, by shopping around and doing a little research, you may be able to get your divorce done a lot cheaper by a MN Divorce Law Firm than a MN pro-player’s salary.

Divorce is expensive and it seems to never go as quickly or smoothly as anyone prefers. Nevertheless, by having a good Divorce Law Firm you can at least get a free consultation to let you know about how much your divorce will cost you and how long it should take, if it is uncontested. Uncontested, meaning you and your spouse have or will be able to agree on most issues regarding possession or custody. Your MN Divorce Law Firm will also be able to explain the process and let you know the fees when there are issues that you and your spouse cannot agree. This then would cause the case to be heard in a trial and be presided over by a judge. That is why you need a good Law Firm on your side to be watchful over the process and ensure your personal rights are not violated and that you get at least a certain portion of the marriage estate when the marriage is dissolved. Remember, it is never a good idea to represent your self; even lawyers hire other lawyers when they have a legal issue. They know they want the required expert knowledge and have someone who can objectively take care of their case and you should too.

Many ask the question, “How do I keep down the costs in a divorce proceeding?” First, it is a wise decision for you and your spouse to have a prenuptial agreement that was executed before the marriage. Prenuptial agreements are usually drawn up when one of the spouses is significantly wealthier and who has more assets than the other spouse has when they marry. The prenuptial agreement protects this wealth for the spouse that the prenuptial defines and this agreement has most of the issues already defined should a divorce be desired. Then the only issues would be child custody and assets that were earned or purchased after the marriage. The second way to save some time and money is for you and your spouse to sit down together and make your own agreement lists to be discussed with your MN Divorce Law Firm.

The more you agree upon, the less you will be charged in fees associated with your divorce and will reduce the amount of time to process the divorce. Third, you can represent yourself. However, this may result in being more expensive and take much more time in filing as there may be many points of law that are not properly addressed and the judge wants to be clarified and corrected as they pertain to the rules of law that pertain to divorce. You are much better off having a good MN Divorce Law Firm represent you in a divorce hearing and ensure your paperwork is correct and completed in accordance with Minnesota Law.

Having a competent MN Divorce Law Firm on your side when getting a divorce in the state of Minnesota will help ensure your divorce is fully compliant with the law, all agreements and division of real property, personal property and custody of any children affected by the divorce.

Brown Family Law is a MN Divorce Law Firm of divorce lawyers and attorneys focusing on Divorce and Family Law cases. Our attorneys represent clients throughout Minneapolis and the Twin Cities area. Call or contact us or visit our MN Divorce Law Firm Blog for information and guidance in contested divorce, uncontested divorce, child custody cases, child support, and more.

Don’t pick the first firm you see in your local telephone book, and try not to pick one from an online listing unless you do a bit of research first. Most of what you need to know can be found by visiting the websites pertaining to the Minnesota State Bar Association, or the local or County Bar Association. Your divorce is personal and important and you want the most competent lawyer you can possibly find and afford to handle your case, so choose the MN Divorce Law Firm that has the best qualifications. Your financial future and that of any children you have is the most important thing to consider at this time. Bring all this to the table when you have your initial consultation with the lawyer you have chosen to represent your interests. He or she will need any and all information you are able to provide so that they will be able to proceed with you case.

Make sure your MN Divorce Law Firm has a complete list of any assets owned by you and your spouse. This also includes any future retirement benefits, any pension plans, IRA’s, 401k plans, insurances, and savings accounts, as well as any tangible assets that may be sold for cash. All of this is necessary and important information if you are going to be able to secure your financial future. Your spouse will have hired his or her own lawyer who will also be working to secure the same benefits for him or her, and hopefully the two lawyers will be able to work out a settlement you can both agree on. This often takes considerable time, and much conflict if the two parties cannot agree on who will get what.

Many times the whole case will end up going into litigation if a settlement cannot be reached. This means that you will have to go to court, your lawyer will present your case, and a judge will make the final decision as to how the assets will be divided. The lawyers at the MN Divorce Law Firm you have hired are skilled negotiators who are familiar with litigation procedures and will work diligently to ensure that they secure the best for you.

If possible, just for the sake of time alone, it is best to try to arrive at an agreeable settlement between you and your spouse, especially if there are children in the picture. Knowing that their parents are not going to be together and the family life will be disrupted is traumatic enough, and seeing the parents battling it out in court is just another added worry to a young child. Your MN Divorce Law Firm will do their best to see that a court appearance does not happen if at all possible.

Brown Family Law is a MN Divorce Law Firm of lawyers and attorneys focusing on Divorce and Family Law cases. Our lawyers and attorneys represent clients throughout Minneapolis and the Twin Cities area. Call or contact us, or visit our MN Divorce Law Firm Blog for information and guidance in contested divorce, uncontested divorce, child custody cases, child support, and more.

This may seem like a daunting task for you to contemplate, but the services provided by the Minneapolis Law Firm you choose will make the process much easier for you. In general, divorce is usually amicable between the two people involved, but there are circumstances where the married couple decides to battle it out and drag the proceedings on and on. The professional people at the Minneapolis Law Firm you have engaged to handle your divorce will work to make sure that your rights are protected.

The Minneapolis Law Firm lawyers take care of any and all of your concerns when you decide to divorce. Custody, spousal or child support, division of assets and so on are all issues that the firm is prepared to handle for you. It is much less stressful for you if you let the lawyers handle anything that may come up. This is the service that you are paying for, and if the divorce becomes difficult you will be glad you have professional legal people on your side.

Don’t be intimidated by the number of lawyers listed in the phone book or online when you first begin your search for a Minneapolis Law Firm attorney to handle your divorce, and don’t hesitate to call and ask for advice about your particular situation. Make appointments to meet with more than one lawyer before you decide which one you feel most comfortable with. Most of the lawyers will offer a free consultation, either by phone or in person.

If you are a victim of some kind of spousal abuse, your lawyer will work to make sure you are protected against this. The whole idea behind hiring an attorney at a Minneapolis Law Firm is to see that your rights are preserved and you are able to safely obtain a divorce decree while maintaining your legal assets. Your spouse will have his or her own legal counsel, and you will never have to speak to him or her if you desire not to. All the work will be done through the attorneys.

If you find that you are in a situation where divorce seems to be the only recourse, seek the services of a good lawyer at any Minneapolis Law Firm. Make an appointment, sit down and explain your situation, discuss your options, and decide from there if this is the person who will handle your case. If the lawyer does not quite meet your expectations, or you don’t feel that he or she will give your case the attention it deserves, there are numerous other law firms you can contact in Minneapolis.

Brown Family Law is a Minneapolis Law Firm of divorce lawyers and attorneys focusing on Divorce and Family Law cases. Our attorneys represent clients throughout Minneapolis and the Twin Cities area. Call or contact us or visit our Minneapolis Law Firm Blog for information and guidance in contested divorce, uncontested divorce, child custody cases, child support, and more.

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Everyone has horror stories about the Vallejo divorce process. People say that it takes years. People talk about spending huge and unexpected amounts of money on Vallejo family law firms. You hear about many instances where the divorce has harmed relationships with children, family, and friends. Many find that child support payments cause them to live as frugally as students until their children’s emancipation. Post-divorce problems can linger for years, even for a lifetime.

In a mediated divorce, the two divorcing parties meet with one mediator (usually, but not necessarily a service offered by Vallejo family law firms). You meet with a Vallejo family law firm a number of times. The Vallejo family law firm will to address and try to resolve the issues in your divorce. Vallejo family law firms hired in this capacity do not represent either of the parties. The Vallejo family law firms must be (and must be viewed by the parties as) an impartial, objective, fair third-party.

A mediated divorce (using advocate lawyers at relevant points) is the Camry of divorces. It’s solid, safe for the most part, and it can do almost everything you want. But the collaborative divorce is like a Prius. It has the most advanced resources at its disposal. It’s groundbreaking, and it can turn a sometimes dirty process into something that is a lot better for the environment.

The premise of collaborative divorce is to resolve the divorce though a series of meetings between the clients and their respective Vallejo family law firms. These four-way meetings, are actually what the courts require litigants to do prior to the trial in a litigated divorce.

So.., the main difference is that instead of you, your spouse and a Vallejo family law firm, you have you, your spouse and two Vallejo family law firms – one for each of you. The benefits of collaborative law are great. Better, more workable, and longer-lasting solutions are generated. Relationships with family are preserved. It is generally not more expensive than mediated divorces (with the advocate attorneys’ critical involvement.) It is generally much less expensive than litigated divorces.

I hope your brain isn’t spinning too much at this point. But here’s it in a nutshell, you can

– mediate

– have a collaborative divorce

– create a separation agreement.

– duke it our in court.

The first three are usually the best.

Before filing your dissolution, contact multiple Vallejo family law firms – or better yet, fill in our contact form and let us give you a list of the best Vallejo family law firms for your particular case. Divorce is quite emotional but, the court sees it strictly as a legal matter. The law is designed to be fair, and that’s all Vallejo family law firms are trying to do. Help you create a fair settlement.

It might be worthwhile to consult with our Vallejo family law firms. Fill out our contact form and let us help you.

Most people assume that the judge is the only person that has the authority to make any final decisions in the court room.  But this is definitely not the case–there are a number of different decision makers in divorce court that need to be considered when fighting for your father’s rights in divorce court.  Just because the judge has the final say doesn’t mean that you can’t sway the other decision makers in the case to assist you in getting the response from the judge that you truly want in the end. 

When you’re dealing with divorce court, you’re typically dealing with numerous decision makers.  It’s not just about what you and your ex-wife want, it’s generally all about what’s best for everyone, including the children.  If a father wants joint custody, the court will generally not deny the father of 50/50 visitation time if the mother will come to an agreement on the terms.  This is because courts do truly understand the importance of having both parents in a kids life.  But there are certain key players in the courtroom that could help you prove your ability to gain custody–even full!  This means being on the good side of family counselors, property appraisers, evaluators, and other decision makers that present important, influential information to the judge in regards to the case. 

Knowing who can influence the judge is an important tactic in gaining custody of your children and protecting your rights as a father.  A family counselor can be on your side, by agreeing that it is important for a child to have their father in their lives.  A marriage counselor could assist by reporting to the judge that your wife could easily be diagnosed for anger issues, or that she is overly emotional in front of the children.  This could help turn the case in your favor as well.  Know the key players, and utilize them properly to help influence the judge to see YOUR side of the story.

The courtroom can be a nerve-racking, anxiety-ridden place for anyone who has never dealt with the law before.  A cold, desolate room with echoing noises, tense opposing parties and a judge in which everything lies upon.  This situation can make even the most confident person crack under pressure, but no matter how intimidated you feel, it is important to get on your judge’s good side in order to have some parts of your case to your advantage.

Submit clean paperwork.  Make sure you understand the formatting required in your state and county courts in order to impress the judge that you have done your research and did not sloppily put together your legal documents without care and respect for the court systems.

Stay on task.  Don’t miss deadlines and court dates.  This can cause a judge to become frustrated and harbor a negative feeling against you for abusing the court system’s time and energy.

Show a true, faithful effort.  Show the judge that even though you are going about this Pro Se, that you’ve done your homework, researched the case and have the legal information to back up your claims and defenses. 

Know your judge.  I’m not talking about Googling your judge online, but I am talking about sitting in on a few cases that he is presiding over.  This way, you can get a feel for what he likes, doesn’t like, tolerates or hates, and this can give you an edge over your ex-wife when you finally take your own case to court.

Remember that the judge is the one that has the final say about your case and what you are proposing happens during your time in court for your divorce.  By getting on the judge’s good side, you will better your chances of being heard and recognized during the proceedings, and in the long run, that is a great benefit to have over your opposing party!

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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