"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, March 19, 2009


Irretrievable breakdown of marriage as a ground for divorce

Recently the SC held that irretrievable breakdown of marriage is not a ground for divorce under the Hindu marriage and Act and holding so would be legislating. See here. News reports states that the Law Commission of India has suo motu filed a recommendation to add this as a ground taking into the consideration the changed social realities.

Incidentally, this issue has been alive for a long period in the lives of different law commissions.

In 1978 the LCI had filed its report tilted “The Hindu Marriage Act, 1955 – Irretrievable Breakdown of Marriage as a Ground of Divorce. The Commission had recommended amendment to the Act to include this as ground for divorce. (See, pages 40-43 of the report, available at http://lawcommissionofindia.nic.in/51-100/Report71.pdf)

A later discussion can be found the 90th report of the LCI in the background of suggesting changes in Section 10 of the Indian Divorce Act, 1869. (see, pages 1-2, 5 of the report, available at http://lawcommissionofindia.nic.in/51-100/Report90.pdf)

Law has to be responsive to the changing social contexts to remain relevant to the contemporary society. The judiciary in this case has taken a right step in stating that it is the legislature to change the law and not them. It could be argued that, as the courts have always been, why can’t they be dynamic and interpret the law in such a manner to give relief to the deserved. There could be two considerations for the court while taking the position in this case: one the adage that “judges only expound the law, do not make them”, the other could be judiciary’s reluctance to lay hands on personal laws and the realisation that it shall rest with the domain of people’s representatives. Now, it for the legislature to respond.

This instance raises the debate about the role of the judges. ‘Should they be faithful servants of legislature or a co-operative partner in the establishment of policies?’

No comments: