217th Report on Irretrievable Breakdown of Marriage - Law ...
217th Report on Irretrievable Breakdown of Marriage - Law ...
217th Report on Irretrievable Breakdown of Marriage - Law ...
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‘The Legislature must, I think, be taken to have intendedthat separati<strong>on</strong> for three years is to be accepted by thisCourt, as prima facie a good ground for divorce. Whenthe matrim<strong>on</strong>ial relati<strong>on</strong> has for that period ceased toexist de facto, it should, unless there are special reas<strong>on</strong>sto the c<strong>on</strong>trary, cease to exist de jure also. In general, itis not in the interests <strong>of</strong> the parties or in the interest <strong>of</strong> thepublic that a man and woman should remain boundtogether as husband and wife in law when for a lengthyperiod they have ceased to be such in fact. In the case <strong>of</strong>such a separati<strong>on</strong> the essential purposes <strong>of</strong> marriagehave been frustrated, and its further c<strong>on</strong>tinuance is ingeneral not merely useless but mischievous.’93. In the said <str<strong>on</strong>g>Report</str<strong>on</strong>g>, it is menti<strong>on</strong>ed that restricting the ground <strong>of</strong>divorce to a particular <strong>of</strong>fence or matrim<strong>on</strong>ial disability, causesinjustice in those cases where the situati<strong>on</strong> is such that although n<strong>on</strong>e<strong>of</strong> the parties is at fault, or the fault is <strong>of</strong> such a nature that the partiesto the marriage do not want to divulge it, yet such a situati<strong>on</strong> hasarisen in which the marriage cannot survive. The marriage has all theexternal appearances <strong>of</strong> marriage, but n<strong>on</strong>e in reality. As is <strong>of</strong>ten putpithily, the marriage is merely a shell out <strong>of</strong> which the substance isg<strong>on</strong>e. In such circumstances, it is stated, there is hardly any utility inmaintaining the marriage as a facade, when the emoti<strong>on</strong>al and otherb<strong>on</strong>ds which are <strong>of</strong> the essence <strong>of</strong> marriage have disappeared.94. It is also menti<strong>on</strong>ed in the <str<strong>on</strong>g>Report</str<strong>on</strong>g> that in case the marriage hasceased to exist in substance and in reality, there is no reas<strong>on</strong> fordenying divorce, then the parties al<strong>on</strong>e can decide whether theirmutual relati<strong>on</strong>ship provides the fulfilment which they seek. Divorceshould be seen as a soluti<strong>on</strong> and an escape route out <strong>of</strong> a difficultsituati<strong>on</strong>. Such divorce is unc<strong>on</strong>cerned with the wr<strong>on</strong>gs <strong>of</strong> the past,but is c<strong>on</strong>cerned with bringing the parties and the children to termswith the new situati<strong>on</strong> and developments by working out the mostsatisfactory basis up<strong>on</strong> which they may regulate their relati<strong>on</strong>ship inthe changed circumstances.95. Once the parties have separated and the separati<strong>on</strong> has c<strong>on</strong>tinuedfor a sufficient length <strong>of</strong> time and <strong>on</strong>e <strong>of</strong> them has presented a21