A rational and progressive divorce law must strike a balance between two seemingly incongruous objectives. It should support and sustain the stability of the institution of marriage. But it should also enable couples to end their contract with the minimum fuss and acrimony once it is established that the marriage is beyond repair and no constructive purpose would be served in keeping it alive. The irretrievable breakdown of a marriage, a concept first recognised in New Zealand's matrimonial laws in 1920, is now widely accepted around the world as a condition for the grant of divorce. In clearing amendments that make irretrievable breakdown a ground for divorce in the Hindu Marriage Act 1955 and the Special Marriage Act 1954, the Union Cabinet has accepted longstanding recommendations made repeatedly by the Law Commission of India and the higher judiciary. The Delhi High Court struck an extremely sensible and pragmatic note as early as 1967 when referring to married couples in Ram Kali v. Gopal Das: “It would not be practical and realistic…indeed it would be unreasonable and inhumane, to keep up the façade of marriage even though the rift between them is complete and there are no prospects of their ever living together as husband and wife.”
As things stand, the provisions relating to divorce in the Hindu Marriage Act and the Special Marriage Act (which provides for a civil marriage by registration, under which a couple may marry whatever be their religion) mainly relate to ‘matrimonial fault' — or such things as adultery, cruelty, and desertion. The provision for divorce by mutual consent, introduced in the Hindu Marriage Act in 1976, also exists. While this requires both parties to cooperate on the terms of their divorce, irretrievable breakdown is a conclusion the court may reach if the facts before it establish that the marriage cannot be saved. It is important to stress that irretrievable breakdown was never envisaged as a painless, hassle-free way of arbitrarily dumping a spouse. As the Law Commission has recommended, aside from ascertaining that the marriage is wrecked beyond hope of salvage, any grant of divorce under this provision must ensure that adequate financial arrangements are made for spouses, whenever required, and children. The process of reforming Hindu matrimonial law has resulted in a situation where it is not substantially different today from that which governs civil marriage. The challenge in this connection is to persuade other communities — Muslims and Christians, in particular — to accept reforms in their marriage and divorce laws that are progressive, gender-equal, and in keeping with contemporary thought and practice.