IRRETRIEVABLE BREAKDOWN THEORY OF MARRIAGE

FAMILY LAW-I

A research paper submitted in partial fulfilment of the course family Law-I

for the requirements of the degree B.B.A. LL.B.(Hons.) for the academic
session 2019-20.

Submitted by-
Name: Madhavi Bohra

Roll No.:2023

Submitted to-

Pooja srivastava

August, 2019

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR, MITHAPUR,

PATNA- 800001.

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 Acknowledgement

I would like to thank my faculty Mrs. Pooja srivastava whose assignment of such
a relevant topic made me work towards knowing the subject with a greater interest
and enthusiasm and moreover she guided me throughout the project.

I owe the present accomplishment of my project to my friends, who helped me

immensely with sources of research materials throughout the project and without
whom I couldn’t have completed it in the present way.

I would also like to extend my gratitude to my parents and all those unseen hands
who helped me out at every stage of my project.

THANK YOU!
NAME-Madhavi Bohra
ROLL NO- 2023
3rd Semester (bba.llb)

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 Declaration

I hereby declare that the work reported in this project report entitled “irretrievable breakdown
theory of divorce” submitted at Chanakya National Law University, Patna is an outcome of my
work carried out under the supervision of Mrs. Pooja srivastava. I have duly acknowledged all
the sources from which the ideas and extracts have been taken. To the best of my understanding,
the project is free from any plagiarism issue.
Madhavi Bohra
DATE- 08-08-2019

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Table of Contents

1. Introduction- ....................................................................................................................... 6
1.1 Historical background- ................................................................................................ 7
2. Reasons to adopt irretrievable breakdown as ground of divorce- ...................................... 8
3. Fault Theory V. Irretrievable Breakdown Theory- ............................................................ 9
4. 71st Report Of Law commission and judicial view- ......................................................... 10
5. Some leading judgements of irretrievable breakdown theory- ......................................... 12
6. Criticism- .......................................................................................................................... 14
7. Conclusion and suggestion- .............................................................................................. 15
8. Bibliography- .................................................................................................................... 16
8.1 books and reports- ..................................................................................................... 16
8.2 webliography-................................................................................................................. 16

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Research Methodology:

This project would follow doctrinal methodology. Descriptive and analytical research
methodology will be followed by researcher in this project. Primary and secondary sources
have been helpful in gathering relevant information regarding project. Secondary sources like
books and articles which are available online have been used. Books suggested by faculty have
also been referred to have a detailed idea about subject matter and to give a firm structure to
project. Footnotes have also been given to acknowledge wherever necessary.

Method Of Writing:

The method of writing followed in the course of this research project is primarily analytical.

Mode Of Citation:

The researchers have followed a uniform mode of citation throughout the course of this project.

Aims And Objectives:

 The project essentially seeks to outline the theories of divorce in which main focus on
breakdown theory of divorce.
 To identify and compare the other theories from the same.
 To know about the positive and negative sides of the theory.

Research Questions:

1. What is kind of evidence the court will accept as proof of irretrievable breakdown?
2. Reason for irretrievable breakdown theory.
3. What is the law for divorce in india?

Hypothesis:

The researcher believes that it is not enough for the parties to aver that there as been an
irretrievable breakdown of marriage. Such an averment must be substantiated and the fact that
the parties to a marriage have not lived together for a long period of time can reasonably taken
to be a tangible presumptive proof of the breakdown of marriage.

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 1. Introduction-
There was a time when it was believed that the marriages were arranged in heaven, and it used
to be a relation of flesh with flesh and bone with bone. So the question of separation from each
other was a far cry. But slowly and steadily this concept did not find favour with social
reformers, who wanted that a woman must not be chained with a man who is completely devoid
of all the virtues that a reasonable husband should have.

Till date, the prevailing laws in India regarding the issue of divorce have not recognized a
situation where the spouses are facing a situation that despite the fact that they live under the
same roof, their marriage is equivalent to a separation. That is, there is still no codified law for
irretrievable breakdown of marriage. The Hindu Marriage Act recognize few grounds for
dissolution of marriage in Section 13. But with the change in the social mores and in view of
the changing nature of marriage in the society, the supreme court has shown special concern
over the matter of making irretrievable breakdown of marriage as a ground for divorce. The
Supreme Court has with a view to do complete justice and shorten agony of the parties engaged
in long drawn battle, directed dissolution of marriage. Indeed, these were exceptional cases, as
the law does not specifically provides for the dissolution of marriage on the grounds other than
those given in Hindu Marriage Act, 1955. Irretrievable breakdown of marriage is not a ground
for divorce under the H indu Marriage Act, 1955. Because of the change of circumstances and
for covering a large number of cases where the marriages are virtually dead and unless this
concept is pressed into services, the divorce cannot be granted. Ultimately, it is for the
Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or
not but in our considered opinion the Legislature must consider irretrievable breakdown of
marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955.

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 1.1 Historical Background-

Marriage constitutes the very basis of social organization. Hindu law regards marriage as a
sacrament- indissoluble and eternal. This sacramental character of marriage has given rise to
certain anomalies. The declaration of Manu that neither by sale nor by desertion is wife released
from the husband was applied only to women and not men. Thus, there was an element of
inherent injustice on the wife in Hindu law. To counter such inequalities among spouses and
to protect the sacramental aspect of marriage, Hindu Marriage Act, 1955 was enacted which
provided certain matrimonial remedies.

Marriage is an institution in the maintenance of which the public at large is deeply interested.
It is the foundation of the family and in turn of the society without which no civilization can
exist. A marriage solemnized, whether before or after the commencement of the Hindu
Marriage Act, 1955 can only be dissolved by a decree of divorce on any of the grounds
enumerated in Section 13 of the Act. Till the time a Hindu marriage is dissolved under the Act
none of the spouses can contract second marriage. Thus, it is obvious from the various
provisions of the Act that the modern Hindu Law strictly enforces monogamy. Even under the
Muslim Law plurality of marriage is not unconditionally conferred upon the husband. Muslim
law as traditionally interpreted and applied in India permits more than one marriage during the
subsistence of one and another though capacity to do justice between co wives in law is
condition precedent.

As per the Hindu Law administered by courts in India divorce was not recognized as a means
to put an end to marriage, which was always considered to be a sacrament, with only exception
where it is recognized by custom. Public policy, good morals and the interests of society were
considered to require and ensure that, if at all, severance should be allowed only in the manner
and for the reason or cause specified in law.

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 2. Reasons To Adopt Irretrievable Breakdown As Ground Of
Divorce-
The theoretical basis for including the irretrievable breakdown of marriage as a ground for
divorce is now commonly known among lawyers and jurists. Restricting the ground of divorce
to a particular offence or matrimonial disability causes injustice in those cases where the
situation is such that although none of the parties is at fault, or the fault is of such a nature that
the parties to the marriage do not wish to divulge it, yet there has arisen a situation in which
the marriage cannot be worked; that is, where the marriage has all external appearances of
marriage but none of the reality. In such circumstances, there is hardly any utility in
maintaining the marriage as a façade, when the emotional and other bounds which are the
essence of marriage have disappeared. After the marriage has ceased to exist in substance and
in reality, there is no reason for denying divorce. In a situation like this, the parties alone can
decide whether their mutual relation is emotionally and socially real and strong or not. Divorce
should be seen as a solution and a way out of a difficult situation. Such divorce should not be
concerned with the wrongs of the pasts, but must focus on bringing the parties and the children
to terms with the new situation and developments by working out the most satisfactory basis
upon which they may regulate their relation in the changing scenario. In a leading case 1this
Court reiterated and took the view that since the parties are living separately for the last more
than three years, we have no doubt in our mind that the marriage between the parties has
irretrievably broken down. There is no chance whatsoever of their coming together. Therefore,
the Court in such cases, grant the decree of divorce.

1
Sandhya Rani v. Kalyanram Narayanan reported in (1994) Supp. 2 SCC 588,

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 3. Fault Theory V. Irretrievable Breakdown Theory-
In most of the cases, the question confronted by the Hon’ble Supreme Court is should divorce
be granted solely on the basis of who is ‘at fault’? Or should ‘irretrievable breakdown’ of a
marriage be cause for divorce?

The Hindu Marriage Act governing marriages between Hindus, and the Special Marriage Act
governing marriage between individuals regardless of religious persuasion, are premised on
the ‘fault’ or ‘matrimonial offence’ theory for the purpose of divorce. This, in effect, means
that a person can be granted a divorce if, for example, it is established that the spouse has
committed adultery, or has treated the person cruelly or deserted for more than two years. Thus
the person has been at fault in some way. In addition, the wife can ask for a divorce on grounds
that after marriage her husband was guilty of rape, sodomy or bestiality.

Part of the fault theory is that a person cannot take advantage of his/her own wrong. Divorce
can only be sought by the hurt or aggrieved party who has been at the receiving end of the other
party’s offending conduct. There has been an ongoing debate about whether divorce should be
granted solely on the basis of the fault of the party or whether it should be based on the
breakdown of marriage. Opinions remain divided among sociologists, lawmakers, reformers
and even activists and feminists.

Marriage as a sacrament, society’s stake in the continuance of marriage, the duty of judges to
effect reconciliation between the parties, and public interest are some of the major factors that
feature in this debate. Would introducing irretrievable breakdown as grounds for divorce work
against the interests of women, given the gender disparities and large number of women
deserted by their husbands?

In the recent case of Naveen Kohli v. Neelu Kohli,2 the Supreme Court held that situations
causing misery should not be allowed to continue indefinitely, and that the dissolution of a
marriage that could not be salvaged was in the interests of all concerned. The court concluded
that the husband was being mentally, physically and financially harassed by his wife. It held
that both husband and wife had allegations of character assassination against them but had
failed to prove these allegations. The court observed that although efforts had been made
towards an amicable settlement there was no cordiality left between the parties and, therefore,
no possibility of reconnecting the chain of marital life between the parties

2
SUPRA 4.

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 4. 71st Report Of Law Commission And Judicial View-

The Law Commission in its 71st report, submitted in 1978, dealt with the concept of
irretrievable breakdown of marriage. The Report mentions that as far back as 1920, New
Zealand was the first of the Commonwealth countries to introduce the provision that a three-
year or more separation agreement was grounds for filing a petition in the courts for divorce.
In 1921, in the first case of the granting of divorce on these grounds in New Zealand, the court
laid down that when matrimonial relations have, in fact, ceased to exist it is not in the interests
of the parties or in the interest of the public to keep a man and woman bound as husband and
wife in law. In the event of such a separation, the essential purpose of marriage is frustrated
and its further continuance is not merely useless but mischievous. This formulation has become
a classic enunciation of the breakdown principle in matrimonial law.

The Law Commission observed that restricting divorce to matrimonial disability results in an
injustice in cases where neither party is at fault, or if the fault is of such a nature that the parties
do not wish to divulge it and yet the marriage cannot be worked out. It refers to a situation
where the emotional and other bonds, which are the essence of marriage, have disappeared and
only a façade remains. The commission concludes that where a marriage has ceased to exist
both in substance and in reality, divorce should be seen as a solution and an escape route out
of a difficult situation. Such a divorce should be concerned with bringing the parties and the
children to terms with the new situation and working out a satisfactory basis for regulating
relationships in the changed circumstances. Not to dwell on the ‘wrongs’ of the past.

A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the
fault theory, guilt has to be proved; divorce Courts are presented with concrete instances of
human behaviour as bring the institution of marriage into disrepute.3 Once the marriage has
broken down beyond repair, it would be unrealistic for the law not to take notice of that fact,
and it would be harmful to society and injurious to the interest of the parties. Where there has
been a long period of continuous separation, it may fairly be surmised that the matrimonial
bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie, by
refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the
contrary, it shows scant regard for the feelings and emotions of the parties. Public interest
demands not only that the married status should, as long as possible, and whenever possible,

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71st Report of the Law Commission of India.

10
be maintained, but where a marriage has been wrecked beyond the hope of salvage, public
interest lies in the recognition of that fact. Since there is no acceptable way in which a spouse
can be compelled to resume life with the consort, nothing is gained by trying to keep the parties
tied for ever to a marriage that in fact has ceased to exist. Human life has a short span and
situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at
some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate
response to the necessities arising therefrom.4The Supreme Court in a case5 recommended to
the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act,
1955 to incorporate irretrievable breakdown of marriage as a ground for divorce.

4
Mayne’s Treatise on Hindu Law & Usage (16th Ed.) Revised by Justice Ranganath Misra (New Delhi:
Bharat Law House, 2008), pages 292-293
5
Naveen Kohli vs. Neelu Kohli ,AIR 2006 SC 1675.

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 5. Some Leading Judgements Of Irretrievable Breakdown
Theory-
 Geeta Mullick v. Brojo Gopal Mullick: “In our considered opinion, the marriage
between the parties cannot be dissolved by the trial Court or even by the High Court
only on the ground of marriage having been irretrievably broken down, in the absence
of one or more grounds as contemplated under section 13(1) of the Hindu Marriage
Act, 1955.”6

 V. Bhagat v. D. Bhagat ; The concept of irretrievable breakdown of marriage cannot

be used as magic formula to obtain a decree for divorce where grounds for divorce are
not proved. the Supreme Court held in a case “Irretrievable breakdown of the marriage
is not a ground for divorce by itself. But while scrutinizing the evidence on record to
determine whether the ground alleged is made out and in determining the relief to be
granted, the said circumstance can certainly be borne in mind.7

 Savitri Pandey v. Prem Chandra Pandey: held that marriage between the parties
cannot be dissolved only on the averments made by one of the parties that as the
marriage between them has broken down, no useful purpose would be served to keep
it alive. The legislature, in its wisdom, despite observation of the Supreme Court has
not thought it proper to provide for dissolution of the marriage on such averments.
There may be cases where it is found that as the marriage has become dead on account
of contributory acts of commission and omission of the parties, no useful purpose
would be served by keeping such marriage alive. The sanctity of marriage cannot be
left at the whims of one of the annoying spouses.8

 Ashok v. Rupa: When the court finds in facts as well as from talks of resettlement or
reconciliation between parties that there was no possibility of reunion between husband
and wife and refusal of decree of divorce would only prolong the agonies of the
spouses, it can dissolve the marriage on this ground.9

6
AIR 2003 Cal. 321, ¶6.
7
AIR 1994 SC 710 ¶23.
8
AIR 2002 SC 591
9
1996 (2) HLR 512 (Guj)

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  Shankar v. Puspita: Where the husband and the wife are living separately from each
other for the last 19 years and there is no chance of settlement between the parties a
decree for divorce can be granted.10

 Rita v. Trilokesh: Where there was no consummation of marriage, wife being adverse
to cohabitation, wife disobeyed instructions of the court to undergo medical
examination to prove that marriage had not consummated, there was indecent
behaviour of wife to her in-laws reflecting her mental imbalance, and the parties have
been living separately for a period of 16 years without any serious attempt for
reconciliation, a decree dissolving the marriage would be proper.11

 Krishna vs. Som Nath: held that marriage is irretrievably broken and it is in the interest
of justice that decree of divorce be granted so that both the parties can live in peace.12

10
AIR 2005 Jhar. 92.
11
AIR 2007 Gau.122.
12
(1996) DMC 667 (P&H).

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 6. Criticism-
The concept of irretrievable breakdown of marriage to be made a ground for divorce under the
Hindu Marriage Act, 1955 has been although a lot more debated but it has equally been
criticized at various points by the state High courts and The Government of India. They can be
summarized as follows: -

 Criticism by the High Court: High Court has in many cases, expressed disagreement
with the suggestion that the Hindu Marriage Act, 1955 should be amended with a view
to making irretrievable breakdown of marriage as a good ground for grant of a decree
of divorce.
 The judges of the High Courts: have expressed themselves against the introduction of
irretrievable breakdown as a ground of divorce. One of the points made in the reply of
the High Court is that it is extremely difficult to say that the husband and wife would
never live together merely because there has been a rift between them and for the time
being it appears that there may not be any prospect of their living together. The mere
fact that there has been a rift between the parties or that they are for the time living
apart does not mean that the marriage has come to an end. It is possible that what may
appear to one person to be irretrievable may appear to another as not yet beyond repair.
But such a state of things cannot be allowed to continue indefinitely, and there must
arrive a point of time when one of the parties should be permitted to seek the judgment
of the court as to whether there is or there is not a possibility of the marriage being
retrieved.
 Criticism by the Govt.: The Government of India, Ministry of Education, Department
of Social Welfare, has expressed the review that making irretrievable breakdown of
marriage a ground for grant of a decree of divorce is redundant in the light of the fact
that sufficient grounds covering ‘irretrievable breakdown of marriage’ exist in the
Hindu Marriage Act and the Marriage Laws Amendment Act, 1976, for the purpose of
seeking divorced.

Thus, we see that though a lot of authorities have deliberated upon the aspect of irretrievable
breakdown of marriage as a ground for divorce there has also been a vast majority of authorities
that have seen the drawbacks behind this concept of breakdown theory and are not in favour of
its legislative birth and implementation.

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 7. Conclusion And Suggestion-
it can be said that marriage is an institution in the maintenance of which the public at large is
deeply interested. It is the foundation of the family and in turn of the society without which no
civilisation can exist. This foundation presupposes the existence of a platform build on the
basis of sound understanding between the spouses. If this understanding is missing between
the spouses and the marriage is a continuous malady, then it is desirable that the marriage
should be dissolve with the intervention of the court. There is no useful purpose served by
continuing such a marriage. Thus, on the basis of "irretrievable breakdown theory" such
marriage should be dissolved for the common betterment of both the spouses.

This is the reason why the attitude of legislature changed from the "guilt theory" to the "divorce
by mutual consent" (the consent theory). There may be a case where relation of the parties has
broken down irretrievably and there is no chance of reconciliation and they are also not ready
for divorce by mutual consent. In that eventuality continuing such relation is futile and as per
Irretrievable Breakdown of Marriage theory such marriage should be dissolved. It is high time
that we appreciate the need of Irretrievable Breakdown of Marriage theory so that spouses can
have a new and better life instead of wasting their "young days" in courts.

It is, therefore, suggested that immediate action be taken to introduce an amendment in the
Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 for inclusion of ‘irretrievable
breakdown of marriage’ as another ground for grant of divorce. The amendment may also
provide that the court before granting a decree for divorce on the ground that the marriage has
irretrievably broken down should also examine whether adequate financial arrangements have
been made for the parties and children.

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 8. Bibliography-
8.1 Books And Reports-
MULLA- FAMILY LAW-I

PARAS DIWAN- FAMILY LAW-I

Mayne’s Treatise on Hindu Law & Usage (16th Ed.) Revised by Justice Ranganath Misra (New
Delhi: Bharat Law House, 2008),

71st law commission report, India.

8.2 webliography-
http://www.legalserviceindia.com

http://www.lawyersclubindia.com/articles/DOCTRINE-OF-FRUSTRATION-NEW-
DIMENSION-3057.asp

https://www.lawteacher.net/free-law-essays/contract-law/the-theory-of-frustration-in-english-
law-contract-law-essay.php

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