Marriage, according to the Hindu law, is a holy union for the performance of religious duties. It is not a contract. Mere fact, therefore, that a marriage was brought about during the minority of either party thereto, does not render the marriage invalid. A Hindu marriage is considered a sacrament, as the acceptance of the bride is a necessary and indispensable part of the ceremony. It was held by Bombay High Court in (1908) 32 that marriage amongst the Hindus was a sanskara or sacrament. It is the last of the ten sacraments enjoined by the Hindu religion for purifying the body from inherited taint. Same view was taken by Madras High Court in Gopalkrishnam v. Venkatnarasa (1914) 37.

The words “sacrament” or “sanskara” has various context driven meanings that broadly refer to “the putting together, accomplishing well, making perfect, a form of solemn recognition and getting ready”. Further sanskara or sacrament refers to learned behaviour repeated over a long period of time. It leaves impact in producing qualitative society. Religious purificatory rites and ceremonies are essential for sanctifying the body, mind, and intellect of an individual so that he may become a full-fledged member of the community or society. Personal sacraments are traditionally observed at every stage in a Hindu’s life, from the moment of conception to the scattering of funeral ashes. As per the Law Lexicon, according to Hindu law, marriage is a samskara and hence marriage of every coparcener is a family necessity.

Marriage and sonship constitute some of the unique chapters in the literaleges of ancient Hindu law. As early as the times of Rig-Veda marriage had assumed the sacred character of a sacrament and sanction of religion had heightened its character and importance. Marriage is the last of the ten sacraments, enjoined by Hindu religion for regeneration of men and obligatory in case of every Hindu who did not desire to adopt the life of a hermit or a Sanyasi.

However, with the passage of time a stage was reached when codification, in the matters of marriage and succession, had become indispensable. Far-reaching and fundamental changes had become inevitable for they alone could furnish fair and equable solutions to some of the most controversial questions in these areas. In the field of Hindu marriages, The Hindu Marriage Act, 1955 (Act for short) was passed by the parliament which came into force w.e.f. 18th May, 1955.

With the coming into force of the Act, various grounds were laid on the basis of which a petition for divorce could be presented by either the husband or the wife. The said grounds are, (i) that after the solemnization of the marriage, the other party had voluntarily sexual intercourse with any person other than his or her spouse; (ii) had treated the petitioner with cruelty; (iii) had deserted the petitioner for a continuous period of not less than two years; (iv) had ceased to be a Hindu by conversion to another religion; (v) had been incurably to be of unsound mind, or had been suffering from continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner could not reasonably be expected to live with respondent; (vi) had been suffering from venereal disease in a communicable form; (vii) had renounced the world by entering any religious order; (viii) had not been heard of as being alive for a period of seven year or more by those persons who would naturally have heard of it, had that party been alive.

In addition to the above said grounds, some grounds for obtaining a divorce decree have also been conferred exclusively upon a wife with which we are not concerned in the present write up.

It is well settled that no decree of divorce under the Act can be rendered in favour of a party unless any of the specific grounds laid down in Section 13 of the Act is pleaded and proved. Even in cases where the opposite party does not come forward to contest the claim then also the courts seized of the matter have to assess the evidence on merits and then to render the judgment.

Of late, on account of social changes there are broken marriages to such an extent that reunion of the parties is virtually not possible. In legal terminology such a situation is termed as “irretrievable break down of marriage”. However, under the scheme of the Act, no decree of divorce can be passed on this ground by observing that marriage between the parties had irretrievably broken down. The Apex Court, however, resorts to this course by exercising its extraordinary powers under Article 142 of the Constitution of India whereunder it is laid down that the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause. This extraordinary power under this Article is meant to supplement the existing legal framework- to do complete justice between the parties- and not to supplant it. It is not restricted by statutory enactments but should be sparingly used and cannot be used where the issue can be settled only through substantive provisions of a statute. Any limited interpretation of the expression “cause or matter” would stultify the constitutional powers of the Apex Court. The Apex Court has rightly observed in some cases that it was advisable to leave this power undefined and uncatalogued so that there was elasticity enough to be mould any situation in any case.

In Sandhya Rani v. Kalyanram Narayaran (1994) Supp 2 SCC 588, the Supreme Court took the view that the parties were residing separately for the last more than 3 years and it had no doubt that marriage between them had irretrievably broken down. For this reason a decree of divorce was granted. Again same view was reiterated in Chanderkala Menon v. Vipin Menon 1993(2) SCC 6, where the parties were residing separately for the last many years and there was no chance of their reunion. In Kansal Devi v. Vinod Kumar Mittal (1996) 8 SCC 90, the parties were residing separately for last more than 10 years and the Hon’ble court reached the conclusion that marriage between them had irretrievably broken down. This very view was taken also in Naveen Kohli v. Neelu Kohli 2006(4) SCC 558 in which, besides the irretrievable break down of marriage, there were other issue of mental and physical cruelty.

However, in some cases, of late, the High Courts have also started granting decrees of divorce on the ground that marriage between the parties had since broken down irretrievably. For instance in a case reported as Parminder Kaur v. Gurpreet Singh 2022(4) RCR (Civil) 939, a Division Bench of the High Court of Punjab & Haryana granted a decree of divorce by observing that the parties were residing separately for 17 years and that the relationship between them had broken down beyond repairs. Again a Division Bench of the Hon’ble High Court of Punjab & Haryana granted a decree of divorce in a case reported a Ratandeep Singh Ahuja v. Harpreet Kaur 2022(4) RCR (Civil) 996 by observing that there were irreconcilable differences between the parties which had rendered the marriage, as of today, a mere legal fiction. Of course, there were some other grounds of cruelty etc also in the case. In Maheep Singh v. Loveleen Kaur 2023(1) RCR (Civil) 15, again a similar view was taken by observing that the parties were residing separately for the last about 10 years. Again same approach was adopted in Karanjit Singh v. Devender Kaur 2023(1) RCR (Civil) 1. It is note-worthy that in the said judgment the Hon’ble High Court observed also that power to grant a decree of divorce on the ground that the marriage had irretrievably broken down, of course, was of the Apex Court via Article 142 of the Constitution of India.

In this manner it is discernable that the High Courts have also started granting decree of divorce on the ground that marriage between the parties had gone beyond repairs or had irretrievably broken down.

This writer has also noted that in some of the Family Courts in districts also marriages are being dissolved on this very ground. In this manner, power of the Apex Court is being used in a mild manner at present in district courts and as also at the level of the High Courts, which may turn into a regular practice in times to come. I do not know whether it is due to lack of studies or the courts at the lower level are clogged with a large number of cases which they are not able to decide. Today at district levels, on account of heavy rush of work or on account of lack of work culture on the part of the advocates and the judges, adjournment is the rule and actual work on the case file is an exception. Its result is that no contested case under Section 13 of the Act can be decided in less than 5-10 years. If after completing this period the courts start granting decrees of divorce by observing that the parties were residing separately for the last many years and there were no chances of their reunion, then the concept of sanskara, which is the bedrock of a Hindu marriage, will be given a silent burial. It is also note-worthy that simply because 7-10 years had passed since separation of the spouses should not be a ground of divorce, specially when one of the spouses is clearly on the wrong side. It is also laid down under Section 23 of the Act that no party should be permitted to take advantage of his or her own wrong.

In M. Venkateshwaherlu v. M. Pushpalatha, 2023(1) RCR (Civil) 509, while granting a decree of divorce on the ground that marriage had since irretrievably broken down, the Apex Court observed categorically that the said power was being exercised by it under Article 142 of the Constitution of India and further that no other courts were entitled to invoke the said power.

It is, therefore, hoped that the High Courts and the District Family Courts should not resort to passing of decrees of divorce only on the ground that the marriage between the parties had since irretrievably broken down. They should not eat into the teak wood of the concept of sanskara like termites. It is for the parliament to amend the Act further if required.