AUTHOR: MALLIKA KUMARI, AMITY UNIVERSITY PATNA.

This article holds a paramount value for highlighting the concept, aspects and current status and legal framework overview of the marriage dissolution in the light of the recent trend called the irretrievable breakdown of marriage and its associated challenges and ways to handle it. Thus, it can be said that it’s a holistic presentation of the concerned topic here in a blend of matrix of analytical and descriptive sense and accompanied with cases and furthermore required for the delivery of the crux of this article by the author in a wider scope in the limited words-sphere. The article further calls for action and development and insight among the viewers to further research and learn about the topic concerned here in the just rightful manner. The research methodology adopted here is aligned in the same mentioned nature of the article and is scientific in nature, relied on authentic sources and handover of the first-hand opinion of the author’s observation that is to be presented in the article itself.

KEYWORDS-

MARRIAGE, IRRETRIEVABLE BREAKDOWN OF MARRIAGE, DIVORCE THEORY, FAMILY LAW.

OBJECTIVE-

THE OBJECTIVE OF THIS ARTICLE IS TO UPHOLD THE KNOWLEDGE AND AWARENESS OF THE CONCERNED TOPIC HERE AND TO DEVELOP AN INSIGHT AMONG THE READERS TO BOOST THE UNDERSTANDING AND PRACTICAL IMPLICATION OF THE CONCEPT IN THE PRACTICAL AND REAL-LIFE SITUATIONS IN PROFESSIONAL ASPECTS.

SIGNIFICANCE-

THE ARTICLE HOLDS THE CONCRETE AND CRUX SUBSTANCES OF THE SAID CONCERNED TOPIC HERE, WITH REGARDS TO THE IRRITERABLE BREAKDOWN OF MARRIAGE AND ITS ASSOCIATED ASPECTS IN A MOST IMPORTANT MANNER.

Marriage has been a common subject matter of both law or jurisprudence and aligned humanities-based subjects such as of political science, psychology, sociology, anthropology and many more; and has been an influxed and crucial point of the society’s structure from the time immemorial and even has a strong existence in the future outcomes as well.

The marriage notion has been evolving as the social and legal concept in various societies all over the world and its associated concepts such as conjugal rights, divorce and many more; and subject to respective society’s attitudes, personal law and customs does shape a vital effect and idea of it.

Thus, marriage has been a centre-subject matter of family law and plays a vital role in one’s personal domain of leading life that too aligned in one’s fundamental rights specially in the cases of the citizens in the country like or named, India; and there are numerous cases in respective hierarchy of the courts in the country and the maxim of ‘ubi jus ibi remedium’ is equally prevalent here as well.

Marriage has been a vital concept in social construct in the Indian scenario from time immemorial and it is still holding a paramount value in the establishment of the family as a unit of society and has a certain promising future outlook as well as the concrete subject-matter under the domain of the family law.

Primarily, when talking about the marriage concept the notion of laws governing a given sect is significantly one’s own customs and personal law.

In this article, focus has been imposed upon the hindus on the major point.

The the hindus as being one defined under the section 2 of the Hindu Marriage Act of, means one who is being bought up as hindu if one of the parents is hindu, or one who’s both parents are hindu and include virashaiva, lingayatas, any one associated with arya or brahmo samaj, it even included the shikhs and buddhists as in aligned notion of the article 25 of the Indian Constitution of 1950.

The said act determines the valid essentials of the marriage as under section5 and in further chapter and section 13 and due added by amendments the section 13 -A and 13-B talks about different notions of divorce having its jurisprudential essence into different divorce theories such as mutual divorce; etc.

The irretrievable breakdown of marriage has come up as the recent trend of marriage’s divorce in all forms of sects or communities within the marriage domain and it primarily means, one where the marriage bond between the two individuals had been broken down in such a form that the damage cannot be repaired or reversible, the best option or solution or suggestion in such cases is the separation of the two individuals which are being associated in legally married union and this separation is not judicial separation but, it's actually a divorce.

As in matters of judicial separation the status of the marriage is still there irrespective of being separated for a time being under the decree or order enforced by the court having jurisdiction of the same; in case of divorce, one’s marital ties and obligation or status does not get merely suspended but eventually elapses or gets terminated, after this, both are again eligible to marry again or be divorced.

The said ground or trend of divorce has been highlighted in many cases and the concept is still evolving.

The highlights of this trend in positive sense is that it adds scope to the court for due enforcement of its power in better regards to separate the couple and preserve their mental and overall peace and they can move on but the challenges are there with respect to stricter interpretation and implementation of law like how to define the actually breaking nature of marriage in both actual which means , the factual and the concrete constructive sense and whether there will be any other remedy as marriage is a serious commitment and with two individuals concerned in the given marital tie or wedlock, even the two families are being involved or set-up and get suffered and divorce although, it is now being a high-option in contemporary society, but, the judges and the society are still in majority not in favour of divorces in respect of marriages in Indian’s society as it can be interpreted in the light of the realist and sociological school of jurisprudence.

The irretrievable breakdown of marriage theory has does not any explicit expressed terms on or with respect to legal provisions being given in any matter but often, in some substantial and material cases the Article 142 of the Indian Constitution of 1950 grants the scope and power to the supreme court, the honorable apex court of our country or the land called, India has expressly given decisions in some vital cases as from-time -to- time and  case-to-case as per the need of the hour.

The sociological school of jurisprudence and aligned collaboration of the realist school of jurisprudence could be a vital significatory part in dealing with the substances of deriving this base of irretrievable breakdown of marriage theory or concept right from its jurisprudential essence; where, in the former case or scene or situation the law which serves as a tool to function in the society for its due betterment as per the society’s need or evolution and further, both law and society impacts each other in complimentary way to take shape so as to co-exist for healthy and holistic human civilization and justice delivery and assurance in the fair and reasonable yet justified judicious way and, in the latter case, the judge’s creativity and due interpretation on subjective level depending upon the facts and circumstances of the each case as per each case’s unique complexity and matrix plays an effective and vital role in due regards.

There are various landmark cases and notable ones out of which few that can be highlighted are as NAVEEN KOHLI VS. NEELU KOHLI; SAMAR GHOSH VS JAYA GHOSH; R. SRINIVAS KUMAR VS. R. SHAMETHA; SHILPA SAILESH VS VARUN SREENIVASAN; SATISH SITOLE VS. GANGA; MANISH GOEL VS. ROHINI GOEL; T. SRINIVASAN V. T. VIMAL; SUHANI VS. PRAMOD KUMAR and in many more cases; also, and in all these there mere substance of the irretrievable breakdown of marriage has been discussed that are to be presented in a crux and summarized manner in all aspects and parts of this concerned article that the readers are actually reading and going through and having a breakthrough in the conceptual clarity of the same. Further, more cases are coming up from time-to-time reflecting upon the core nature and essential elements of this theory as required in a more understandable manner.

The major derivation or focus that needs to be highlighted is that, although, the some cases have come up in the picture or in the front line for the effect or via the direct implied interpretation of the said concerned irretrievable breakdown of theory part as divorce aspects, but, the matter of concern in more precise and adequate or direct way is that, there is no clear express legal provision or statute in this regard and often the high courts took a contemporary view in solving the cases in this regards, when comes to facts and interpretation parts as there is not strict or followed up proper justified legal criteria or stands mentioned in any statute or precedent in an objective manner, but, merely just the subjective interpretation and new doctrines establishment without any strong base is there and the courts’ hierarchical setup procedural setup is also not being classified.

All these needs to be addressed when the legislation will be passed with thorough discussion and preparation of the draft needed addressing the concerns of the contemporary society’s era issues in respect of marital tie and marriages coming under the scope or domain of this stated theory here and also, the lack of resources, infrastructure, zeal and professionalism among the players of the legal system needs to be handled with a thorough comprehensive and multi-dimensional approach that could be fostered and build-up on recommendations that are to be made by the appointed experts committee from distinct relevant or required standard fields and for formulation of the such required here, considered recommendation , the research and development could be ensured and enhanced with international standard norms so as to conduct empirical databased survey and study and with real-life and practical cases study and proper future forecasting and predictions a foresighted approach could be planned and implemented for covering most cases as most possible under this theory domain so that, the basic human rights of the individuals could be achieved and cannot be compromised at any cost just because a false portayal of marriage is required in social pressure or due to the lack of the required legal stricter columns to get one divorced from one’s own very personal arenas that is marriage.

Also, it will help the legal system most precisely the courts in just solving such marriage cases without any further delay or without any sophisticated legal compliances to just dissolve one’s marriage when it seems fit there is no major or mere scope to continue such marital obligations for the concerned couple in the concerned specific case as required.

This way India will be able to even match up with other countries in the global scenario to deal and standardize this theory and that too in complimenting and collaborative form with other theories of divorce such as, of mutual divorce theory or as other deem fit.

It could even support feminist jurisprudence or in wider scope the gender equality aspects even for men as well as they don’t have major choices to address such divorce in already given ordinary senses.

This theory will act as a no-fault theory as there in this, the focus is on the essence of the breaking of the marriage and not to merely choose or identify one as the offender and other as the victim, here, the silent killing of the or the suicide of marriage is just merely given importance that in a very simple or straightforward sense, the marriage cannot be worked even more and the best possible scope is to just end it.

While, it is in being trend now, the scholars put high critics on its vague interpretation of the constructive or actual breaking down of marriage that it’s the perspective or merely a point of view and that, a given marriage failure cannot be simply valued or measured in  just few list of parameters that are too even not standardized and what one can be the failure in the given case of couple may or may not be applicable on the another case on another couple set.

The human factor of judges being involved in the due course of handling of such cases even raise high concerns that subjective interpretation may lead to even biasness and that too in stricter regards which cannot be checked because the whole system and theory concerned is working here without any backbone.

• CALL TO ACTION FOR THE READERS IN THE LIGHT OF THE CONCERNED TOPIC HERE-

The readers are further encouraged to do their own thorough research to gain even more clarity over the concerned topic here.

• CONSTITUTIONAL VALUE OF THE CONCERNED GROUND OF THE DIVORCE HERE-

The concerned topic here, further states the constitutional value as well, the MANEKA GANDHI CASE – established golden triangle of articles 14,19, and 21 of the Indian Constitution of 1950 of rights of equality, freedom, life and liberty that too as part of part-3 of the said supreme law of the country under the domain of fundamental rights which are justiciable nature also somehow aligns in wider and broader interpretation with respect to the irretrievable breakdown of marriage theory as a vital trend and part of granting divorce to the couple concerned in the case and it is applicable to valid legal marital unions that needs to be kept in a mind and that too irrespective of any personal law or custom but, otherwise, the personal laws applications on special ground besides the said fundamental rights does plays an effective role and its underlining collaborative comprehensive complimentary approach needs to be addressed in a most efficient manner.

Thus, it can be said that this theory does play a vital role in contemporary era from past few decades and even have a promising future outlook in all regards when it will get addressed properly in better and holistic regards for the achievement of the greater good and the greater justice.