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Justice is desired by each and every person in this earth. But as we all know that Justice delayed is Justice denied, so it’s a matter of concern that how many people actually get justice in due time. Well this is a very vague question as there is no specificity to it. However it lays down the basis of a very common problem that has plagued the Indian courts. Yes the term ‘plagued’ actually represents the current scenario of the Indian Judiciary. The problem of backlog of cases have been haunting the Indian courts for a long time and it is high time that we react to the situation and do something about it. Precisely speaking the criminal trials take much longer that what they are expected to take and what actually they take. Thus it is very necessary that some sort of system is adhered to so as to speed up the trial process and relieve the courts of heavy backlog of cases. Crimes happen almost everyday and with such a large population it is quite obvious that at least thousands of crimes are committed almost everyday throughout the country. And as the literacy levels and awareness among the people has increased so they refer their problems to the courts which is the only dispute resolution system and the only place where one can expect justice. Thus it is all the more obvious that with such a rate of criminal cases pooling into the courts the available workforce falls very short of the expectations. Apart from that there are several appeals which are preferred from the trials which furthermore increase the case numbers in the court. In such a scenario it becomes a matter of concern as to how to control the problem. One such solution or alternative through which this problem could be curbed is plea bargaining which is incorporated under the provisions of Criminal Procedure Code.

 

Plea Bargain – An Insight

 

Well the first question that comes to our mind is that what is plea bargaining actually. Precisely speaking Plea Bargaining refers to an agreement in a criminal case where the prosecutor offers the defendant with the opportunity to plead his guilt. In other words it means that an option is given to the criminal defendant to accept his guilt and avoid the trial proceedings which would be instituted against the accused as it happens in a normal trial proceeding. Now one might wonder that what benefit is the accused getting by accepting his guilt and by avoiding the trial proceedings. Well the answer to this is that in a plea bargaining case the accused is generally charged of a lesser charge than the original criminal charge and the punishment is also lesser which he would have got had he been charged of the original charge. Many a times it happens that the accused while sitting through a trial is convicted of a more serious charge and also of some additional charges which might be charged along with the original offence. Thus with the help of plea bargaining the accused can relive himself from risking his case of harsher sentences. On the other hand it is beneficial to the victim also as the victim gets justice quickly as the accused accepts his/her guilt. Apart from that the time of the court is saved from carrying out the court proceedings and fulfilling the court formalities. Moreover the time of the court is saved from establishing the guilt of the accused as the accused himself/herself accepts his/her guilt. Therefore a lot of money and the time of the court is saved. Thus we can note that with the help of plea bargaining one can really speed up the criminal court proceedings.

History of Plea Bargaining in India

 

The concept of plea bargaining has been introduced in the Criminal Procedure Code with the help of a Criminal Law (Amendment) Act, 2005. This amendment act was passed by the parliament in its winter session. Chapter XXIA of the Criminal Procedure Code contains the requisite provisions of Plea Bargaining which is enforceable in India. Sections 265-A, 265-B, 265-C, 265-D, 265-E, 265-E, 265-F, 265-G, 265-H, 265-I, 265-J, 265-K and 265-L of the Criminal Procedure Code enumerates the provisions relating to Plea Bargaining.

 

However with everything mentioned above it would be quite wrong to say that the concept of plea bargaining is of recent origin. Efforts for dealing with the problem of over burdening of the criminal courts have been made much earlier. The 154th Law Commission, in order to reduce the delay in disposing criminal cases, brought forward the concept of plea bargaining and also recommended the introduction of plea bargaining as an alternative to deal with the heavy backlogs of criminal cases. After that the recommendations of the Law Commission were supported by the Malimath Committee Report. In its report, the Malimath Committee recommended that a system of plea bargaining be introduced in the Indian Criminal Justice System to facilitate the earlier disposal of criminal cases and to reduce the burden of the courts. To strengthen its case, the Malimath Committee also pointed out the success of plea bargaining system in USA. Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was introduced in the parliament. The statement of objects and reasons, inter alia, mentions that, The disposal of criminal trials in the courts takes considerable time and that in many cases trial do not commence for as long as 3 to 5 years after the accused was remitted to judicial custody.. though not recognized by the criminal jurisprudence, it is seen as an alternative method to deal with the huge arrears of criminal cases. The bill attracted enormous public debate. Critics said it is not recognized and against public policy under our criminal justice system. The Supreme Court has also time and again blasted the concept of plea bargaining saying that negotiation in criminal cases is not permissible. More recently in State of Uttar Pradesh V. Chandrika 2000 Cr.L.J. 384(386), The Apex Court held that It is settled law that on the basis of plea bargaining court cannot dispose of the criminal cases. The court has to decide it on merits. If the accused confesses its guilt, appropriate sentence is required to be implemented. The court further held in the same case that, Mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the court that as he is pleading guilty the sentence be reduced. Despite this huge hue and cry, the government found it acceptable and finally section 265-A TO 265-L have added in the Code of Criminal Procedure so as to provide for raising the plea bargaining in certain types of criminal cases. While commenting on this aspect, the division bench of the Gujarat High Court observed in State of Gujarat V. Natwar Harchanji Thakor (2005) Cr. L.J. 2957 that, The very object of law is to provide easy, cheap and expeditious justice by resolution of disputes, including the trial of criminal cases and considering the present realistic profile of the pendency and delay in disposal in the administration of law and justice, fundamental reforms are inevitable. There should not be anything static. It can thus be said that it is really a measure and redressal and it shall add a new dimension in the realm of judicial reforms.

 

Plea Bargaining – Relieving the Indian Criminal Courts

 

Quite clear from the above discussion the main object of Plea Bargaining is to reduce the risk of undesirable orders for the either side. Apart from this it is also helpful in clearing away the pending cases in the criminal courts. However it is also quite important to know that plea bargaining is not applicable to all the offences. It is only applicable to those offences for which there is a punishment for a period up to seven years. Further the provision of plea bargaining doesn’t apply to cases where the offence is committed is a socio-economic offence or else where the offence is committed against a woman or a child below the age of 14 years.

 

The concept of plea bargaining is very strong. It benefits both the victim and the accused at the same time and finally and the most important it benefits the court. There are two types of plea bargaining which helps the accused in confessing his guilt. One is Charge Bargain and the other is Sentence Bargain. In case of a Charge Bargain the prosecution allows the defendant to plead guilty to a lesser charge or to only some of the charges framed against him. This helps the accused to reduce the charges to a greater extent as the prosecution has a wide range of options to frame the accused of charges. Thus Charge Bargain helps the accused to negotiate with the prosecution and reduce the number of charges that the prosecution might have framed against him. In case of Sentence Bargain the accused is relieved of harsher and a higher sentence if the accused confesses his offence or pleads guilty. In this case the defendant is told in advance what his sentence would be if he pleads guilty. Thus with these two options of plea bargaining most of the cases could be resolved which are rotting in the criminal courts and which are waiting their turn to be disposed off in merits.

 

Shortcomings of Plea Bargaining

 

Though plea bargaining is a very positive concept and a welcome legislation for reducing the backlogs of the criminal courts in India, it too has some shortcomings. There are some inherent flaws inside this legislation which can be called as the drawbacks of plea bargaining. The first and foremost demerit of plea bargaining is its inapplicability to all the cases. As mentioned above it is inapplicable in cases where the offence relates to socio-economic offence and offences against women and children below 14 years. So the accused can take advantage of these loopholes and can harass the complete procedure of plea bargaining. Apart from that another drawback of plea bargaining is the involvement of the court in the plea bargaining process. Where the court is involved in the plea bargaining process the court’s impartiality becomes questionable. Also involving the victim in this process can invite corruption. There is a scope of huge amount of corruption in this regard. However the main and primary drawback of the plea bargaining process is the rejection of plead guilty application. In a case where the accused has confessed his/her offence and then the application of the accused is rejected then it would become very difficult for the accused to prove his innocence when normal trial proceedings would be instituted against him consequently.

 

Conclusion

 

Though there are some inherent problems and drawbacks associated with the provision of plea bargaining, it still remains a powerful weapon to combat the problem of heavy backlog of criminal cases in the Indian courts. It is very necessary that the shortcomings of the plea bargaining process are given a due though and solved accordingly. Most importantly in the case of rejection of the application of the pleading guilty of the accused; the rejection should be kept confidential so as to prevent prejudice to the accused. Apart from that it is an acceptable fact that the concept of plea bargaining will enhance the faith of the public in the criminal justice system and will help the Indian Courts to fight with the problem of backlog of cases.

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A constitution is the supreme law of a free country. It is the system by which a government of a country functions. Constitution of India was adopted in the in the constituent assembly on 26th November 1949. It is document that contains set of instructions and policies that a government in power of India must follow. Indian constitution came into force on 26th January 1950, the republic day of India, defining India as a republic union of states. Indian constitution also defines the fundamental rights, directive principles and fundamental duties of a citizen of India. Constitution of India declared India as a state to be sovereign, democratic republic but later in the amendment of constitution of 1976 the India was added to be a socialist and secular state.

The constitution of India is the longest written official book than any other of an independent country. Indian constitution is considered the best constitution that an independent country has in the world. It is a well drafted book that is a result of research of years. India is still a young independent country and hence the makes of India constitution have adopted several effective articles and laws from different constitutions of other countries. It has given a permeable that is just a complete crux about it. Preamble of India is again considered the best in the world. It contains 22 sections including 395 articles, 12 schedules and 83 amendments.

The committee that drafted the constitution of India was headed by Dr. B.R. Ambedkar and other six members as Jahwahar Lal Nehru, C. Rajagopalachari, Rajendra Prasad, Sardar Vallabhbhai Patel, Maulana Abul Kalam Azad and Shyama Prasad Mukherjee. All these members were great politicians and major scholars of India. Indian constitution is written in the hand writing of Dr. Ambedkar.

Indian constitution is the best official draft one must read to know how a democratic and independent republic nation works. It will provide a deep insight of the laws and principles that Indian government follows to run the union of India.

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Introduction

 

It can be a matter of dispute whether legal positivism owes its birth to Hobbes, Bentham or Austin but most of the legal experts agree that the version of legal positivism given by H.L.A. Hart is the most appropriate one for the modern constitutional system. Hart replaced the images of power and violence in jurisprudential imagination by conceiving law as a system of rules upon rules of social practices informed by their own criterion of validity and normative obligation. For Hart, legality is not something which is politically imposed but is evolved through a growing complex system of different kinds of rules.

Before the advent of modern period legal theory was basically dominated by the natural law ideology which was the touchstone for testing the State law. In the modern period, Hobbes for the first time divorced positive law from natural law and made the State law independent of any external criteria. However, Hobbes did not fulfil the task of positivism fully as he did not distinguish between the actual law (“is law”) and the ideal law (“ought law”). His State-made law was not only an existing law but also an “ought” law.

The task was accomplished by John Austin. Austin divorced the State law fully from any external criteria and pretensions of validity on the basis of “ought”. His theory of legal system is based on his theory of sovereignty. According to Austin, a legal system exists if

(a) its supreme legislator is habitually obeyed.

(b) its supreme legislator does not habitually obey anyone.

(c) its supreme legislator is superior to the law subjects relative to every law.

For Austin, legal system was set of all the laws enacted directly or indirectly by one sovereign. His criterion for membership of a law in a system is that a law belongs to a system if and only if the sovereign who enacted all other laws of that system enacted it.

Austin has very little to say about the structure of the legal system – which can consist of internal as well as external relations. Punitive relations are perhaps the most important internal relations implicitly recognized by Austin. A law containing an imperative part only is not an independent law at all, unless there is a corresponding punitive law. At best, it is an imperfect law to be interpreted perhaps as a part of another law, and having the effect not of imposing duty but of permitting an act. Another kind of internal relation recognised by Austin is what is called as genetic relation, that is, the relation between subordinate law and the obedience law which authorised its legislation. Austin’s theory may be said to be based on the principle of independence

A theory of legal system is based on the principle of independence if according to it there is no logical necessity for a legal system to have an internal structure. It is based on the notion that every law can be an independent unit, the existence, meaning or application of which is not logically affected by other laws

The demand of personal obedience in Austin’s theory means that the span of the life of the legal system determines the period of existence of the laws of the system and hence also of the legal system itself. Austin came out with the solution of “tacit” command for the problem of continuance of old laws. In fact, Austin’s theory of a legal system is at best an explanation of a momentary legal system which contains all laws of a legal system valid at a certain moment.

There is not a moment at which a legal system exists but has no laws valid at that moment. Austin’s theory does not satisfy this prerequisite

Kelsen’s theory improved upon Austin’s theory. In his theory, laws derived their validity not from the sovereign but from grundnorm. His theory could provide an internal structure of the legal system as well as an explanation for its continuance. Apart from these two aspects, Kelsen’s theory was the same as that of Austin. It was based primarily on sanction and efficacy and was imposed from the top. Kelsen never clearly stated what grundnorm was and what was the validity of the grundnorm. At one point he said that grundnorm was the general acceptance that this legal system should exist and its validity was its efficacy. Thus, in this way Kelsen’s theory was not very different from Austin’s theory except in that a person or a body of persons was replaced by a norm which was basically a psychological factor.

These defects were largely rectified by H.L.A. Hart whose theory of legal system based on the combination of primary and secondary rule is regarded as the “high point of legal positivism The Concept of Law  was first published in 1961. It is considered useful and essential for understanding a theory that it is examined in its social background. Peter Wagner reflects on the social situation at the time of publication of The Concept of Law  He sees the period around 1960 in Western Europe as the culmination of “organised modernity” which

“developed a particular kind of reflective self-understanding as conveyed in its social science…. Organised modernity was characterised by the integration of all individuals inside certain boundaries into comprehensively organised practices. No definite places in society were ascribed to individual beings according to pre-given criteria. Social mobility existed and was part of the liberties this society offered. This configuration achieved a certain coherence, or closure at about 1960 … it appeared as a naturally ‘interlocking order”

Reflecting the social and political conditions of his time, Hart’s concept of law is based on general social acceptance of law or legal system”

Hart’s Perception towards Law

Deriving inspiration from linguistic philosophy of J.L. Austin and Wittgenstein that words should be understood in the context they are used, Hart concluded that law is what people practising it mean it to be. This is what he calls as internal aspect of the law. Although Hart did not go to the extent of Duguit in contending that laws derive their validity from social acceptance and he made the rule of recognition

A central part of Herbert Hart‘s theory on legal positivism, in any legal system, the rule of recognition is a master meta-rule underlying any legal system that defines the common identifying test for legal validity (or “what counts as law”) within that system. He articulates its application thusly:

“

…to say that a given rule is valid is to recognize it as passing all the tests provided by the rule of recognition and so as a rule of the system. We can indeed simply say that the statement that a particular rule is valid means that it satisfies all the criteria provided by the rule of recognition.

”

 

— H. L. A. Hart

 

In Hart’s view, the rule of recognition arises out of a convention among officials whereby they accept the rule’s criteria as standards that empower and govern their actions as officials.[1] The rule is cognizable from the social practices of officials acknowledging the rule as a legitimate standard of behavior, exerting social pressure on one another to conform to it, and generally satisfying the rule’s requirements. To this end, as explained by Hart, the rule has three functions:

To establish a test for valid law in the applicable legal system, To confer validity to everything else in the applicable legal system, and To unify the laws in the applicable legal system.

According to Hart, any rule that complies with the rule of recognition is a valid legal rule. For example, if the rule of recognition were “what the Queen says is law”, then any rule the Queen spoke would be a valid legal rule.

His criteria of validity but he accepted that there should not be a general disregard for the system among common people and officials. Although Hart was aware of the role of coercion and conflict in the universe of law but he tried to downplay the role of command and coercion and violence by conceiving law as a system of rules upon rules of social practices informed by their own criterion of validity and normative obligations. “Hart spoke of the shared acceptance of rules. The law it seemed belonged to us all; legal rules were not to be seen as external forces upon us but as our resources.

As stated earlier, for Hart legal system is a combination of PRIMARY AND SECONDARY RULES.

Primary rules are rules of obligation while secondary rules are parasitic upon primary rules and are rules about primary rules.

These secondary rules provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones or in various ways determine their incidence or control their operation.

While primary rules impose duties, secondary rules confer power, public or private. Secondary rules are necessary to cure the defects which a simple social system may have to face due to static nature of the primary rules, their uncertainty and their inefficiency regarding dispute resolution. The introduction of the remedy for each defect is a step from pre-legal into legal world; since each remedy brings with it many elements which permeate law, “certainly all three remedies together are enough to convert the regime of primary rules into what is indisputably a legal system”.

The thesis made Hart to conclude that international law is a law because nations feel an obligation to comply with it but it still lacks the character of a legal system because of lack of secondary rules. In recent years the development of the principle of jus cogens in international law can be called a development towards the formulation of secondary rule of recognition.

Thus, the three defects of pre-legal system are cured by “rules of recognition”, “rules of change” and “rules of adjudication”. Rules of change and rules of adjudication are again related to rules of recognition because it is with reference to it that a particular rule is identified. Thus, for Hart, the existence of a particular rule does not depend upon the command of the sovereign but on the fact that a rule is recognised as valid by rule of recognition and courts have declared it to be valid.

Indian Concept Acc. to Hart’s Ideology

The Indian legal system is a fairly developed system and consists of both primary and secondary rules. The Constitution of India is the ultimate rule of recognition. Although under Article 51 of the Indian Constitution, it is provided that the State shall endeavour to promote international peace and security and respect its international obligation yet no rule of international law which is in conflict with the Indian Constitution can be binding on the Indian people and courts.

Primary rules of obligation in the Indian legal system include customs which are recognised by courts and various statutes

This is evident from the changing status of customs. Although before independence the Privy Council in Collector of Madura v. Matoo Ramalingaa  ruled that in Hindu law a clear proof of custom overrides the written text of law, the situation has changed after independence. Only the customs which are recognised and accepted by Parliament or the courts have the force of law.

Pre-constitutional laws are given recognition by Article 372 of the Indian Constitution “but subject to the provisions of … Constitution”.

Hart criticises Austin’s definition of law as a command of the sovereign backed by sanctions. He contends that a legal system does not resemble a gunman situation writ large. A person may succumb to a gunman’s threats and FEEL OBLIGED TO do or obey his order. But he is not UNDER AN OBLIGATION TO obey the order. But under a legal system he may feel that he is under an obligation to obey the rule although there is no chance of being detected.

One of the criticisms against the Indian Constitution is that it was not framed by a Constituent Assembly which could be treated as representing all Indians and that most of the provisions of the Constitution are borrowed from outside and are not rooted in Indian tradition. It is also contended that the Constitution was never put before the people for ratification. Therefore, it signifies an imposition on the people rather than their acceptance giving validity. The criticism is not, it is submitted, justified because the members of the Constituent Assembly were people in whom the general population had confidence.

It is evident from the results of elections conducted under the new Constitution. It is also true that people have accepted the Constitution and its philosophy because so far there has not been any general opposition of its not coming directly from the masses. The people of India not only feel themselves under an obligation to obey the Constitution but they are also in fact seeking remedy from the Constitution against existing laws and circumstances.

This is clear from the decision in Supdt., Central Prison v. Dr Ram Manohar Lohi  this case a pre-Constitution law was opposed and the right to oppose it was sought from Article 19(1)(a) of the Constitution of India. The fact that new rights are recognised as fundamental right under Article 21 of the Constitution and that the courts are being approached to recognise and enforce the directive principles of the Constitution proves the contention that people of India have accepted the present constitutional system and it is not imposed on them from above.

Hart emphasised on INTERNAL AND EXTERNAL ASPECTS OF A RULE.

 An external aspect of a rule, which is also present in social habits, consists in the regular uniform behaviour which an observer can record. Internal aspect of the rule distinguishes a rule from social habit. When a habit is general in a social group, this generality is merely a fact about the observable behaviour of most of the group. In order that there be such a habit no member of the group need in any way think of the general behaviour or even know that the behaviour in question is general; still less need they strive to teach or intend to maintain it. By contrast, a social rule sets the standard to be followed by the group as a whole. In order that a social rule exists some must look upon it as to be followed by others, deviation from it is criticised, demand for conformity is made upon others.

There need not be any feeling of “being bound”. There is no contradiction in saying that people accept certain rules but experience no such feelings of compulsion. What is necessary is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard and this should display itself in criticism (including self-criticism), demands for conformity and in acknowledgement that such criticisms and demands are justified, all of which find their characteristic expression in the normative terminology of “ought”, “must” and “should”, “right” and “wrong”.

Again, the government action subsequent to the Supreme Court decision in Mohd. Ahmed Khan v. Shah Bano Begum was criticised on the ground that it is against the spirit of the Constitution being in contravention of Article 14 and Article 44 of the Constitution of India.

RULE OF RECOGNITION according to Hart forms the foundation of the legal system.

Such a rule is accepted by both private persons and officials and is provided with authoritative criteria for identifying primary rules obligation. These include reference to authoritative text, legislative enactment, customary practice and general declaration of specified persons or to past judicial decisions in particular cases.

In a modern legal system where there are a variety of sources of law, the rule of recognition is correspondingly more complex. The criteria for identifying the law are multiple and commonly include a written constitutional enactment by a legislature, and judicial precedents. In most cases, provision is made for possible conflict by ranking this criteria in an order of relative subordination and primacy. There is a difference between “subordination” and “derivation”.

In the day-to-day life of a legal system, rule of recognition is very seldom expressly formulated as a rule. For most part, the rule of recognition is not stated but its existence is shown in which particular rules are identified either by courts or other officials or private persons or their advisors.

The use of unstated rules of recognition by courts and others in identifying particular rules of the system is characteristic of the internal point of view. Those who use them in this way thereby manifest their own acceptance of them as guiding rules and with this attitude there goes a characteristic vocabulary different from natural expressions of the external point of view.

Under the Indian legal system, although the Indian Constitution is the ultimate rule of recognition, it presents certain baffling complexities—

— It allows the existence of parallel legal systems in the shape of personal laws many of which still derive their validity from religious institutions. Article 372 of the Indian Constitution allows continuance of pre-constitutional laws. It includes personal laws also. Article 44 of the Constitution provides that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. These provisions may be interpreted to mean that the Constitution for the time being recognises their existence. But it may be relevant to note that the laws which conflict with provisions of the Constitution that are thought to be part of the basic structure like Article 14 are still tolerated.

Fluctuations by way of the Interpretation

— There is a hierarchy of rules of recognition and the Constitution is at the top. But there are perplexing exceptions-

(i) Under Article 240(2) the President can override parliamentary legislation in relation to Union Territories. The President may make regulations for any purpose for which Parliament could make law.

(ii) Under Schedule (5) Part (5) parliamentary legislation in relation to tribal areas in certain matters can be modified. State’s power to legislate on certain specified entries is subject to power of Parliament under the Union List, e.g. Entry 23 of State List subject to Entry 54 of List I, Entry 24 of List II is subject to Entries 7 and 52 of List I.

(iii) Parliament can by its own law effectively alter the distribution of powers. Articles 2 to 4 can be amended by ordinary parliamentary legislation which conflicts with the principle of federalism which the Constitution seeks to protect.

However, since these provisions are part of the Constitution itself they cannot be said to be in conflict with Hart’s theory of ultimate rule of recognition. Moreover, in Indian Aluminium Co. Ltd. v. Karnataka Electricity Board it has been said that the entries in the Constitution only demarcate the legislative fields of the respective legislatures and do not confer legislative power as such. This conflict in the Constitution brings us to the question of basic structure. Parliament has the power to amend the Constitution. But the power is subject to substantive as well as procedural limitations.

While procedural limitations are given in Article 368, substantive limitations are pointed out by the Court in Kesavananda Bharati v. Union of India as the principle of basic structure. Basic structure in simple terms can be said to indicate what Parliament, a creation of the Constitution, cannot do. In other words, power of Parliament to amend the Constitution is only limited to the areas outside the sphere of basic structure. It is the core of the ultimate rule of recognition. It tells what the ultimate rule of recognition does not give to Parliament. Normally, basic structure is said to be the grundnorm of the Indian legal system. But the analogy will be erroneous because then most of the provisions of the Constitution itself will become invalid when tested against the basic structure, e.g. the above-mentioned provisions conflict with separation of powers and federalism and to hold this will be beyond the powers of the judiciary under the ultimate rule of recognition.

One question, which is normally posed is, what gives the judiciary power to say what the basic structure is? Is the existence of basic structure dependent on the decision of the judiciary? The answer can be given by drawing an analogy from Hart’s minimal rules. According to Hart, these rules are minimal conditions for the persistence of social groups i.e. if certain rules did not exist the social group would not “survive”. Thus, we can say that there are minimal rules for the existence of a legal system. If these rules do not exist the legal system would not survive and by enunciating the basic structure the judiciary is only pointing towards these rules.

However, from the inefficiency of a particular rule general disregard for the system should be distinguished. One who makes an internal statement concerning the validity of a particular rule of a system may be said to presuppose the truth of the external statement of fact that the system is generally efficacious. For the normal use of internal statements is in such a context of general efficacy. Thus, while in Supdt., Central Prison v. Ram Manohar Lohia limited right of civil disobedience was granted under Article 19(1)(a) it cannot be so exercised as to threaten the legal system and the sovereignty and integrity of the country. Thus, it cannot be so exercised as to generate a general disregard for the system but opposition and criticism of certain laws is permissible because of the democratic framework of the country.

Hart’s idea of OPEN TEXTURE OF LAW is his another important contribution to legal theory. He recognises the limits of rules and accepts that since all conditions cannot be anticipated, there cannot be predetermined rule to suit every situation in society. Thus, legislators lay down the rules according to the aim of the law. These rules can regulate the clear cases of the paradigm. But there are indeterminate cases which the legislators could not visualise in the beginning. For these indeterminate cases the core meaning of the rule has to be extended to the “penumbral” meaning where the Judge performs an extra-legal function and makes a choice. Thus, according to Hart, in such cases the Judge has to exercise his discretion and a prudent Judge tries to accommodate the prevalent social conditions while interpreting the words. According to Hart, even if the Judge does not extend the meaning of the word and sticks to the “core” meaning, he is still exercising the discretion though making a conservative choice.

, While in interpreting Article 12 the Supreme Court extended the penumbral meaning of any other authority to include instrumentalities of the State within the meaning of the term “State”, they also came up with the principle of basic structure pointing out the principles on which the Indian Constitution is based which cannot be violated by the legislature. Taking guidance from the general structure and aim of the Constitution the Supreme Court has given a totally new interpretation to Articles 14 and 21.

Hart in agreement with Hobbes thought that these conditions are the foundation on which society is based. Men have come together for these reasons. Thus, if these truisms will be ignored the foundation of society and the legal system will be lost and the system will lose its base and efficacy. Thus, although these truisms do not validate the rules, rules cannot ignore them if general efficacy of the system is to be maintained.

In the Indian legal system, although the Supreme Court in A.K. Gopalan v. State of Madras and A.D.M., Jabalpur v. Shivakant Shukla  maintained a strict positivist attitude, in Golak Nath v. State of Punjab , Maneka Gandhi v. Union of India   it adopted the natural law tone and has in Article 14 and Article 21 introduced criteria like “reasonableness”, “anti-arbitrariness” and “due process” for testing the validity of laws which can be called external criteria.

 

 

Grounds of Morality

Finally, what is the role of law and the legal system in an individual’s life? What should be the sphere of law? Should law enforce MORALITY on its subjects? Hart differs from Devlin in this respect. Devlin contends that society has the right to enforce morality because a “recognised morality” is as necessary to society as a recognised government and that society may use the law to preserve morality in the same way as it uses it to safeguard anything else that is essential for its existence. Although Devlin accepts that a balance should be maintained between rights and interests of the society and rights and interests of the individual, there are certain principles which the legislature should bear in mind while legislating.

Hart contends that while public morality should be enforced because its absence amounts to nuisance to another person, care should be taken while enforcing private morality and a balance has to be maintained between individual liberty and morality. According to Hart, the private morality should be made effective by means of persuasion, dialogue and debate rather than coercion.

The Indian legal system does not totally approve of Hart’s theory in this regard. In fact the Indian Constitution is not only a formal text but also a dream and an instrument to bring about social reform. Thus, Article 17 penetrates into private lives of citizens by abolishing “untouchability” in any form. Under the “Protection of Civil Rights Act, 1955″ passed by Parliament under Article 35 of the Constitution, discrimination on the ground of untouchability has been made a punishable offence not only in public places but also in privately owned places of worship and the State Governments are empowered to impose collective fines on the inhabitants of an area involved in or abetting the commission of offences related to “untouchability

In Saroj Rani v. Sudarshan Kumar Chadha  and in Gian Kaur v. State of Punjab  the Supreme Court enforced private morality.  A Constitution Bench overruled the earlier decision of the Division Bench of the Supreme Court in the case of P. Rathinam v. Union of India  by holding that the right to die cannot be included in the right to life under Article 21.. Morality is expressly mentioned in Articles 25 and 26 as a ground for restrictions. Under Article 25 the Constitution guarantees freedom of conscience and freedom of profession, practice and propagation of religion subject to public order, morality and health. In the same way under Article 26, every religious denomination or any section thereof has the right to manage its religious affairs subject to public order, morality and health. Therefore in Acharya Jagdishwaranand Avadhuta v. Commr. of Police, Calcutta  the Court held that tandava dance in procession or at public places by Anand Margis, carrying lethal weapons and human skulls, was not protected by Article 25 or 26 as it was against public order and morality.

Even under Article 14 the Supreme Court under the new concept of arbitrariness, enforces the prevailing morality by striking down a law as unreasonable. Thus, in Air India v. Nergesh Meerza  the Air India Employees Service Regulations were challenged on the ground that they provided for different service conditions for Air Hostesses and Assistant Flight Pursers (AFPs) and it was alleged that they were discriminatory against women. The Supreme Court found that Air Hostesses and AFPs worked under two different categories of services and the Air Hostesses on the whole were not discriminated against. However, even though it found that there was a reasonable classification and no violation of the principle of equality, the Court struck down a regulation providing for termination of services for Air Hostesses on the first pregnancy as arbitrary because it insulted the Indian motherhood

. However, in R.K. Garg v. Union of India the majority of the Supreme Court spoke in a different tone. In this case the constitutional validity of the Special Bearer Bonds (Immunities and Exemptions) Ordinance, 1981 and the Act which replaced it was challenged. The Act granted certain immunities to persons who had invested unaccountable money in the Special Bearer Bonds. They were not required to disclose the nature and source of acquisition of the Special Bearer Bonds. It prohibited the commencement of any enquiry or investigation against such person. The Court by a majority of 4 to 1 upheld the validity of the Act on the ground that the classification made by the Act between persons having black money and persons not having black money was based on intelligible differentia having rational relation with the object of the Act. The object of the Act was to unearth black money for being utilised for productive purposes. Bhagwati, J. speaking for the majority, refused to strike down the law on the ground of morality, saying that:

“It is necessary to remember that we are concerned here only with the constitutional validity of the Act and not with its morality. Of course, when we say this we do not wish to suggest that morality can in no case have relevance to the constitutional validity of a legislation. There may be cases where the provisions of a statute may be so reeking with immorality that the legislation can be readily condemned as arbitrary or irrational and hence violative of Article 14. But the test in every such case would be not whether the provisions of the statute offend against morality but whether they are arbitrary and irrational having regard to all the facts and circumstances of the case. Immorality by itself is not a ground of constitutional challenge.”

Gupta, J., however, gave dissenting opinion saying that:

“The concept of reasonableness does not exclude notions of morality and ethics. I do not see how it can be disputed that in the circumstances of a given case considerations of morality and ethics may have a bearing on the reasonableness of the law in question.”

Conclusion

Based on the general acceptance of the people, Hart’s legal system comprises of primary rules of obligation and “secondary rules of recognition”, “rules of adjudication” and “rules of change”. Existing within the framework of certain minimal rules this legal system has enough flexibility to adapt itself to the changing needs. Except for the five truisms, Hart’s legal system like Aristotle’s Politics is amoral. Principles of morality are no touchstone to test the validity of the rules of legal system. They can, however, become legal rules after passing through the process prescribed by the legal system.

The Indian legal system is a fairly developed legal system comprising of both primary rules of obligation and secondary rules of recognition, adjudication and change. While the primary rules consist of various statutory laws and recognised customs, secondary rules are contained in the Constitution of India. The Constitution of India is based on the philosophy and principles debated and accepted by the people of India during the national movement. Hence, it is “We the People of India” who have framed the general legal framework of our country and therefore feel under an obligation to comply by it. The general legal framework is the source of validity or the “rule of recognition” for other rules and governmental action. While the Constitution has enough inbuilt flexibility to change itself to the changing needs there are certain minimal rules termed as “basic structure” whose sanctity has to be respected as they comprise the basic framework or identity of our legal system.

As for the “rules of adjudication”, the Indian legal system contains a very integrated judicial structure with the Supreme Court of India at the top. The Supreme Court of India and High Courts of the States have the authority to interpret the Constitution also. In the exercise of this power, while basing their judgments on general principles, structure and aims of the Constitution, they have moved beyond the “open texture of law”. A clear example of this is the replacement of “procedure established by law” under Article 21 by the “due process of law”.

However, it is on the question of morality that the Indian legal system seems to clearly disagree with Hart’s thinking. Thus, not only morality is explicitly used in Articles 25 and 26, and implicitly in Article 19(1)(g), even while judging the validity of particular laws against the Constitution of India the Court takes into account moral principles. What is important here is not the actual decisions which can be either way, given the fact that morality is largely subjective, but the consideration of moral principles as part of constitutional values by the courts. This is clear from the views of the judiciary on the two issues of restitution of conjugal rights and the right to die.

Incoming search terms:

A K gopalan and bentham theory (1)a k gopalan case in relation to positivism school (1)

 

 

 

 

 

 

 

 

 

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

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Shri J. T. Sulaxan Rao       : Additional Law Officer

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Adviser

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Administrative Staff

 

 

Shri Sushil Kumar         :    Joint    Secretary&    Law

Officer

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Information Officer

 

 

 

 

 

 

 

 

 

 

 

at:

 

The text of this Report is available on the Internet

 

 

http://www.lawcommissionofindia.nic.in

 

 

 

 

 

 

©      Government of India

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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