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The Amendment of Hindu marriage act 1955 - India Law

As per the Supreme Court senior advocate Kamini Jaiswal it can currently take the couples anywhere from 6 months to 20 years to obtain a divorce. According to Union Law Minister M. Veerappa Moily there are 55,000 divorce cases pending in the courts across the country as reported in the local press.

Mr. Veerappa Moily also ruled out amending the Hindu Marriage Act in order to accommodate the Khap Panchayat's demands. The Khap Panchayats have been demanding a ban on marriages within the same ''gotra'' or sub caste and wanted the Hindu Marriage Act to be amended accordingly.

The amendment is based on the recommendations of the Law Commission, first in April, 1978 and then in March 2009, together with a series of judgments by the Supreme Court. In fact, the apex court had recommended to the Central government in 2006 that it should include irretrievable breakdown as a criterion for divorce between the parties’. Several cases have been decided by the courts where the marriage was completely broken and beyond reconciliation, but the courts applying the technicalities of the law subsisted the marital tie and could not give any relief to the parties’.

In the present circumstances, the judiciary has been adopting a more broadminded and realistic approach and several judgments of different courts confirm the fact that they no longer stick to the customary notion of indissolubility of the marriage knot.

It is seen that in situations where the courts are inclined to adopt a liberal or practical approach, the marriage between the parties would not be dissolved only on the propositions made by one of the parties that the marriage has broken down, but on the fact that no valuable purpose would be served by keeping it alive. The court may take a holistic approach of the facts and circumstances of each case, also where a party is in an advantageous position for his or her own wrong and then tries to plead breakdown of marriage, the court would not invoke its jurisdiction to dissolve the marriage on this ground.

The court also observed that public interest demands that the married status should, as far as possible, as long as possible and whenever possible, be maintained. However, where a marriage has been broken beyond any hope of being repaired, public interest requires the acknowledgment of the fact. The judgment notes that there is no appropriate way in which a spouse can be forced to resume life with the companion, and that situations causing unhappiness should not be allowed to continue indefinitely and that law has a responsibility to sufficiently answer to the needs of the society.

The reasoning and rationale is that in such a situation where there is absolutely no chance to live again together or when the marital ties are severed beyond repair, it would be pointless to keep the relationship alive. Here the ground of irretrievable breakdown is vital. But the amendment, when introduced, needs to provide safeguards to ensure that no party is exploited.

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Pravin Gupta, IndiaNet Consultants
D-19, NDSE-1, New Delhi
New York, NY 10007

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