Irretrievable Breakdown of Marriage

This means the couple can no longer live together as man and wife. Both partners, and one partner,
must prove to the court that the marriage broke down so badly that there is no reasonable chance
of getting back together.

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 then those given in Hindu Marriage Act, 1955.
Irretrievable breakdown of marriage is not a ground for divorce under the Hindu 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.

xamples of the kind of evidence the court will accept as proof of irretrievable breakdown:
# The couple has not lived together like husband and wife for a period of time.
# One partner had sexual intercourse with somebody else and because of this the other partner
finds it impossible to continue living together as husband and wife.
# One partner is in prison after being declared an 'habitual criminal'. (This means he or she keeps
committing crimes, and because of this was sentenced to 10-15 years in prison.)
# One partner deserted the other.
# One partner abused the other, for example the husband keeps assaulting the wife.
# One partner is an alcoholic or a drug addict.
# The partners no longer love each other - they may be too different, or they married when they
were too young. - One of the partners finds it impossible to live together as husband and wife for
any other reason.

. In A. Jayachandra v. Aneel Kaur, the Supreme Court examined such cases. And after discussing the
fact concluded thus: When the respondent gives priority to her profession over her husband’s
freedom it points unerringly at disharmony, diffusion and disintegration of marital unity, from which
the Court can deduce about irretrievable breaking of marriage. The Court found the marriage
irretrievably broken down and granted divorce to the husband. This is however very surprising, as
many a times in the similar circumstances the court, rather then granting a decree for divorce has
ordered for the restitution of conjugal rights holding the notion of a Hindu marriage being
sacrosanct as the very foundation of decree for restitution.
The idea behind the declaration of irretrievable breakdown of marriage is also based on the consent
as it play a major role in the occurrence of a valid marriage. Since consent is accorded primacy at the
time of marriage, it follows that when one or both parties believe that the marriage has broken, they
can petition for divorce. When both parties agree the marriage has failed, they can apply for divorce
by "mutual consent". When only one of the parties believes that the marriage is failing, it would be
enabling for the party to seek divorce arguing that the marriage has broken down, despite the
unwillingness of the other party to end the relationship.

However, except in the Islamic law, "irretrievable breakdown of marriage" is not found in any
legislation as a specific ground for divorce. There are five central concerns about bringing the ground
of irretrievable breakdown of marriage into the divorce statute. These are:
1) Marriage relationship is accorded sanctity in our society, which would be treated with levity if this
ground of divorce is available;
2) Divorce carries social stigma, especially to the wife;
3) This ground permits husbands to terminate a marriage relationship at will;
4) This ground could be misused by an errant husband and;
5) That subjective elements exist in the understanding of "irretrievability" and "breakdown".

Recognition of irretrievable breakdown of marriage as a ground for divorce requires to set aside our
notions of the sanctity of the marriage relationship. The sanctity that such relationship has arises
only from the exceptional sharing and trust that such relationship involves, and cannot be sustained
on external notions of unity and obligation. Related to this is the issue of stigma, which we need to
overcome and address instead of the dependencies arising out of such relationships. This would
matter tremendously in helping the woman regain some measure of confidence.

The last three objections can be dealt with together, by introducing in the ground for irretrievable
breakdown, adequate safeguards which introduce objective elements to determine when there is an
irretrievable breakdown, and providing for the ancillary issues in the marriage relationship to be
resolved as a condition for grant of divorce. This would include financial support to the spouse and
children, arrangements on the custody of the children, distribution of the property of the spouses,
etc. Where the spouse applying for the divorce has committed a wrong, this could be a factor in
determining the maintenance granted to the other spouse. While this ground may seem an
attractive and easy option, the introduction of objective factors to determine breakdown will ensure
that this ground is not opted for on whim or an impulse.

Why Irretrievable Breakdown?

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.

One of the facts from which the irretrievable breakdown can be presumed is, whether the husband
and wife have been living apart continuously for a long time. However, living apart should be the
only proof of irretrievable breakdown. Thus, 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 . In Sandhya Rani v. Kalyanram
Narayanan reported in (1994) Supp. 2 SCC 588, this 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.

Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual
trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the
spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has
now come to be governed by statute framed, keeping in view such norms and changed social order.
It is sought to be controlled in the interest of the individuals as well as in broader perspective, for
regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous
society. The institution of marriage occupies an important place and role to play in the society, in
general. Therefore, it would not be appropriate to apply any submission of "irretrievably broken
marriage" as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in
the background of the other facts and circumstances of the case.

Merits And Demerits of the Theory of Irretrievable Breakdown

Before discussing the merits and demerits of the theory of irretrievable breakdown, a question
arises, that whether the Hindu Marriage Act can be amended with a view to making irretrievable
breakdown of marriage as a good ground for grant of a decree of divorce? In seeking answer to the
question we have to bear in mind the changing nature of the family. The family is becoming more
democratic and more egalitarian. Both the husband and wife share not only the family house; in
some cases they also share the earnings of each other. Because of the rising rate of female activity,
the family unit is more of a coalition. It is therefore necessary that if the coalition cannot be worked,
the legal sanction for it must be withdrawn.

In answer to the obligation that the ground of irretrievable breakdown of marriage is vague, it may
be stated that the petitioner has to satisfy the court of a concrete fact- living apart for a sufficient
length of time. Judges have thus to adjudicate on facts (not on some vague concepts) the question
whether or not, on the evidence before them, the parties have been living apart for the specified
period.

A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the
faulty theory, guilt has to be proved; divorce courts are presented concrete instances of human
behaviour as bring the institution of marriage into disrepute. Because of the divorce of matrimonial
offence, judges, and lawyers are sometimes reduced to the role of scavengers. The lawyers have to
look for and expose and the judges are confronted with, the worst obscenities within a married life.
It is therefore, not surprising that with the present adversary system all types of allegations are
freely hurled across the courtroom. We need not stand on an old divorce law which demands that
men and women must be found innocent or guilty. It is desirable to get rid o the public washing of
dirt linen which takes place in long drawn-out cruelty cases or in cases based on fault. If divorce is
allowed to go through on the ground of marriage breakdown, such an unhappy spectacle will be
avoided.

One cannot say that it is an enhancement of the respondent for marriage if there are tens of
thousands of men and women desperately anxious to regularize their position in the community and
they are unable to do so. People should be able to marry again where they can obtain a death
certificate in respect of a marriage already long since dead. The objection that irretrievable
breakdown as a ground of divorce is vague has been already dealt with. Other objections to it may
be dealt with-
a) Irretrievable breakdown allows the spouses, or even one spouse, to terminate the marriage at
will, thus transforming marriage from a union for life into one which can be ended at pleasure,

b) It is necessary to the basic principle that no man should be allowed to take advantage of his own
wrong; a spouse who was responsible for the breakdown of marriage should not be able to rely on
such breakdown in order to obtain a divorce against his or her partner’s will. By authorizing one
spouse to divorce the other against the latter’s will after separation for a specific period, the law will
have given statutory recognition for the first time to the principle that a person may take advantage
of his or her own wrong.

The theory that one cannot take advantage of one’s own wrong has not been adhered to in the
Hindu Marriage Act in the past. According to clause (ii) of sub section (1A) of section 13 of the Act,
either party to a marriage, whether solemnized before or after the commencement of this Act, may
present a petition for the dissolution of the marriage by a decree of divorce on the ground that there
has been no restitution of conjugal rights as between the parties to the marriage for a period of one
year or afterwards after the passing of a decree for the restitution of conjugal rights in proceedings
to which they were parties. This provision clearly contemplates that even the party which has been
in the wrong in so far as it has failed to comply with a decree for restitution of conjugal rights can
also apply for a decree of divorce on the ground that there has been no restitution of conjugal rights
as between the parties to the marriage for a period of one year or upwards after the passing of the
decree for restitution of conjugal rights in a proceeding to which they were parties. Such a party,
though at fault, would thus be taken advantage of its own fault. It cannot therefore be said that
under the provision of the Hindu Marriage Act, as they stand at present, no person can be allowed to
take advantage of his own wrong.

Thus, 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 interests of the
parties if the legal bond is sought to be maintained notwithstanding the disappearance of the
emotional substratum. Such a course would encourage continuous bickering perpetual bitterness,
and may often lead to immorality. 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 interests demands not only that the married status should, as far as possible, as log as
possible, and whenever possible, be maintained, but also that the court should be empowered to
declare defunct de jure what is already defunct de jacto, where a marriage has been wrecked
beyond the hope of salvage, public interest lies in the recognition of that fact. To keep the sham is
obviously conducive to immorality and potentially more prejudicial to the public interest than
dissolution of the marriage bond.

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 exit. Marriage is life long cohabitation in the home. When the prospect of continuing
cohabitation has ceased, the legal tie should be dissolved.

71st Report of The Law Commission Of India (1978)

The Law Commission in its 71st report, submitted in 1978, dealt with the concept of irretrievable
breakdown of marriage. The report deals with an important question concerning the Hindu Marriage
Act, 1955, whether irretrievable breakdown of marriage can be made a ground for divorce under
that Act and if so, to what extent and subject to what conditions?
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.

Fault Theory V. 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 , 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
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 favor of its
legislative birth and implementation.

Conclusion
Thus to conclude, 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 surved 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.

The author can be reached at: himani.12@legalserviceindia.com/ Print This Article