ACADEMIC YEAR 2022 – 2023

SUBJECT :- Family Law II

TOPIC :-

Irretrievable Breakdown of the Marriage

SUBMITTED FROM:-

AMAN SINGH

CLASS / DIV / ROLL NO.

Fourth Year BLS / L.L.B, B – 20

1
INTRODUCTION

There was a time when it was believed that the marriages were arranged in heaven,
signifying a union of body and soul that was considered unbreakable. Divorce was almost
unthinkable during this time. However, this perception gradually lost favor among social reformers
who advocated for the freedom of women from unions with men who lacked the essential virtues
of an ideal spouse. Despite Hindu reformers' persistent push for changes in Hindu Law, the British
Government was hesitant to endorse significant alterations. In 1955, eight years after India's
independence, the Hindu Marriage Act was enacted. Section 13 of this Act outlines the
circumstances under which parties can seek a legal decree of divorce from a court with the
appropriate jurisdiction. "Divorce" essentially denotes the legal dissolution of a marital bond
between two individuals who, at some point, committed to cherishing and respecting each other.

Regardless of the three remedies available to parties that is restitution of conjugal rights, judicial
separation and divorce, the judiciary in India is demanding irretrievable breakdown of marriage as
a special ground for divorce, as sometimes court face some difficulties in granting the decree of
divorce due to some of the technical loopholes in the existing theories of divorce. The Irretrievable
breakdown of marriage refers to a situation where a marriage has deteriorated to an extent where
it cannot be salvaged or repaired, and there is no reasonable hope for reconciliation between the
spouses. This term is often used in family law to establish grounds for divorce or dissolution of
marriage. It implies that the fundamental bonds of trust, harmony, and mutual respect within the
marriage have been irreparably damaged, making it impractical and detrimental for the spouses to
continue their marital relationship. The concept of irretrievable breakdown recognizes that in
certain cases, maintaining the marriage would be counterproductive and may lead to further
emotional distress and disruption in the lives of the parties involved. As such, it serves as a legal
basis for ending the marriage when efforts at reconciliation have proven futile and when it is in
the best interests of the individuals involved to move on from the marriage. Which can be grant
under HINDU MARRIAGE ACT 19551

1
www.drishtiias.com

2
What is Hindu Marriage Act 1955?
The Hindu Marriage Act 1955 (HMA) is an act of the Parliament of India that codifies and
amends the law relating to marriage among Hindus and others. It was enacted by the Indian
Parliament and came into effect on May 18, 1955. It applies to Hindus, Buddhists, Jains, Sikhs and
anyone who is not a Muslim, Christian, Parsi, or Jew by religion. The Hindu Marriage Act, 1955,
covers various aspects of Hindu marriages, including eligibility for marriage, conditions for a valid
marriage, prohibited degrees of relationships, registration of marriages, and provisions for
restitution of conjugal rights, judicial separation, and divorce. The act also addresses issues related
to maintenance, alimony, and custody of children.

Current Procedure for divorce under Hindu Marriage Act 1955

1. Divorce by Mutual Consent This type of divorce occurs when both spouses
mutually agree to end their marriage. Both parties need to present a joint petition to the
court, expressing their desire to dissolve the marriage. They must state that they have been
living separately for a certain period (usually one year) and have been unable to reconcile
their differences. If the court is satisfied with their plea and after making proper inquiries,
it can grant a divorce decree. Section 13B of the Hindu Marriage Act 1955 provides
for divorce by mutual consent under which both parties to the marriage must together file
a petition to the district court. This will be done on the grounds that they have been living
separately for a period of one year or more, that they have not been able to live together and
have mutually agreed that the marriage should be dissolved. The parties must move a
second motion before the court at least 6 months after the date of the presentation of the
first petition and not later than 18 months after the said date (provided, the petition is not
withdrawn in the meantime). The mandatory six-month wait is intended to give the parties
time to withdraw their plea. A petition for divorce by mutual consent can be moved only
after a year of the marriage.2

2
Hindu Marriage Act, 1955.
3
2. Contested Divorce: under Section 13 of the Hindu Marriage Act, 1955. This
involves filing a petition for divorce without the consent of the other spouse. The petitioner
must establish specific grounds for seeking divorce as outlined in Sections 13(1) and 13(2)
of the Act. If the court is satisfied with the validity of the grounds presented, it may grant
a decree of divorce. A waiver of the six-month waiting period under Section 13 B (2) can
be sought in an exemption application filed before the family court.

A. Cruelty [Section 13(1)(ia)] of the Hindu Marriage Act which talks about Cruelty refers
to the spouse treating the other with cruelty, whether mental or physical that makes it
difficult for the petitioner to continue living with the other spouse.
B. Adultery [Section 13(1)(i)] of the Hindu Marriage Act which talks about Adultery
involves one spouse engaging in voluntary sexual intercourse with someone other than
their spouse. This ground requires proof of the adulterous act.
C. Desertion [Section: 13(1)(ib)] of the Hindu Marriage Act which talks about Desertion
occurs when one spouse abandons the other without any reasonable cause and without
the consent or against the wish of the abandoned spouse. The abandonment must last
for a continuous period of at least two years.
D. Conversion to Another Religion [Section: 13(1)(ii)] of the Hindu Marriage Act which
talks about If a spouse converts to another religion and ceases to be a Hindu, the other
spouse can seek divorce on this ground. This applies when the conversion is voluntary
and the converted spouse renounces Hinduism.
E. Mental Disorder [Section: 13(1)(iii)] of the Hindu Marriage Act which talks about If
a spouse is suffering from a mental disorder of such a nature that the other spouse
cannot reasonably be expected to live with them, it can be a ground for divorce.
F. Incurable Leprosy [Section13(1)(iv)] of the Hindu Marriage Act which talks about If
a spouse has been suffering from incurable leprosy for a continuous period of at least
two years before the divorce petition is filed, it can be a ground for divorce.
G. Venereal Disease [Section: 13(1)(v)] of the Hindu Marriage Act which talks about If
a spouse has been suffering from a virulent and incurable form of venereal disease for
a continuous period of at least two years before the divorce petition is filed, it can be a
ground for divorce.

4
 H. Renunciation of Worldly Life [Section: 13(1)(vi)] of the Hindu Marriage Act which
talks about If a spouse has renounced the world by entering a religious order and has
not been heard of as being alive for a period of seven years or more, the other spouse
can seek divorce.3

However, section 14 of the HMA allows a divorce petition sooner in case of “exceptional hardship
to the petitioner or of exceptional depravity on the part of the respondent”.

What is the Status of Marriage Equality in India?

Divorce Rate and Trends in India

A 2018 survey of 160,000 households revealed that 93% married Indians had ‘an arranged
marriage’, as against the global average of about 55%.

India has a low annual divorce rate of 1.1 per 1,000 people, with only 13 out of every 1,000
marriages resulting in divorce, and men are usually the initiators.

Prevailing social norms discourage women from seeking a divorce, and when they do, they
face legal hassles and socio-economic isolation, especially if they are financially dependent on
their spouses.4

Irretrievable Breakdown of the Marriage as a Ground for Divorce

"Irretrievable breakdown of the marriage" is a legal term used to describe a situation in
which a marriage has deteriorated beyond repair. This condition signifies that the marriage has
reached a point where the couple can no longer continue their marital union, prompting
consideration of divorce. This breakdown indicates that attempts at reconciliation have been
exhausted, and continuing the marriage would be detrimental to the emotional well-being and
stability of the parties involved. As a legal concept, "irretrievable breakdown" often serves as a
basis for divorce proceedings, acknowledging the point at which the marriage has passed the
threshold of salvageability.

3
Hindu Marriage Act, 1955
4
https://data.gov.in/

5
Recently, the Supreme Court (SC) ruled that under its power to do ‘complete justice’ granted
via Article 142, it can dissolve a marriage on the ground that it had broken down
irretrievably, without referring the parties to a family court where they must wait 6-18 months for
a decree of divorce by mutual consent.

What is Article 142 (of the Constitution)?

 Article 142 of the Indian Constitution empowers the Supreme Court of India to exercise its
jurisdiction to pass such orders or decrees as are necessary for doing complete justice in
any case or matter pending before it. This article confers discretionary power on the
Supreme Court to ensure that justice is upheld and to enable the court to pass orders that
may not necessarily fall within the boundaries of ordinary legal provisions. However, while
exercising this power, the Supreme Court must ensure that it doesn't contravene or violate
any existing laws or legal rights.

 Article 142 (1): The Supreme Court in the exercise of its jurisdiction may pass such decree
or make such order as is necessary for doing complete justice in any cause or matter
pending before it, and any decree so passed or order so made shall be enforceable
throughout the territory of India in such manner as may be prescribed by or under any law
made by Parliament and, until provision in that behalf is so made, in such manner as the
President may by order prescribe." The decision to exercise the power under Article 142(1)
must be “based on considerations of fundamental general and specific public policy”. 5

Difficult To Prove An Irretrievably Broken Marriage In Court6

Determining the irretrievable breakdown of a marriage is subjective and often involves

evaluating emotional and relational aspects that are not easily quantifiable or objectively
measured. Unlike fault-based grounds for divorce that might involve specific actions (e.g.,
adultery), the criteria for irretrievable breakdown can be vague and open to interpretation. In

5
Shukla, V. N., & Singh, M. P. (2001, January 1). V.N. Shukla’s Constitution of India.

6
Mulla Hindu Law Vol II, 20th Edition Reprint 2010.
6
 many legal systems, the burden of proving an irretrievable breakdown of the marriage falls on
the party seeking divorce. This can require presenting convincing evidence of the breakdown,
which might be difficult to gather. Courts in some jurisdictions may require proof of failed
attempts at reconciliation before accepting irretrievable breakdown as a valid ground for
divorce. Demonstrating such efforts can be challenging. The division of property, alimony,
and child custody often depend on whether the court recognizes the marriage as irretrievably
broken. Parties might contest the claim to protect their financial interests. Courts recognize
that marriages can go through rough patches, and emotions can be volatile during such times.
Distinguishing between temporary difficulties and genuine irreparable breakdown can be
intricate. Courts have the discretion to deny a divorce if they don't believe the marriage has
truly irretrievably broken down. This discretionary power can create uncertainty for parties
seeking divorce on these grounds. The other spouse might contest the claim of an irretrievably
broken marriage, creating a situation where the court must evaluate conflicting perspectives
and evidence. : Cultural norms and societal expectations regarding marriage might affect how
the court perceives and evaluates the claim of an irretrievably broken marriage.7

Due to these complexities, parties seeking a divorce based on irretrievable breakdown often require
legal counsel to navigate the legal process effectively and present a compelling case to the court.

Inclusion of Irretrievable Breakdown of Marriage under the Hindu Marriage Act,

19558

In its 71st Report, the Law Commission of India proposed a significant reform by
suggesting the addition of "irretrievable breakdown of marriage" as a separate ground for obtaining
divorce under the Hindu Marriage Act of 1955. The Law Commission’s recommendation was
based on the recognition that the existing grounds for divorce outlined in the Hindu Marriage Act
did not adequately address the complexities of modern marriages. The Commission observed that

7
https://lawctopus.com/
8
71st Law Commission report on The Hindu Marriage Act, 1955- Irretrievable Breakdown of Marriage
as a ground of Divorce Law Commission Of India.

7
in numerous instances, marriages had reached a point of no return, yet obtaining a divorce proved
challenging due to the inability to substantiate the conventional fault-based grounds for divorce.

The proposed inclusion of "irretrievable breakdown of marriage" would streamline the

divorce process by eliminating the need to prove the wrongdoing or fault of either spouse. This
adjustment would be particularly beneficial in cases where one party opposes the divorce,where
the parties have been living separately for a long period of time and there is no chance of
reconciliation. Despite the Law Commission's endorsement of this reformative step, the Hindu
Marriage Act 1955, has not undergone an amendment to introduce "irretrievable breakdown of
marriage" as an autonomous ground for divorce. Efforts to enact this amendment have encountered
resistance from various quarters, including religious and conservative groups, thus hindering its
implementation.9

The proposal to incorporate "irretrievable breakdown of marriage" as a valid ground for

divorce has been met with certain objections:

A key objection to introducing "irretrievable breakdown of marriage" as a divorce ground is the

fear that it will lead to an increase in the divorce rate and undermine the institution of marriage.
However, proponents of this change contend that acknowledging irretrievable breakdown as a
valid reason for divorce could actually fortify the institution of marriage. They argue that enabling
individuals to seek divorce when a marriage is beyond repair would prevent them from being
trapped in unviable and unhappy unions. Furthermore, Sections 13(1-A) and 13-B of the Hindu
Marriage Act, 1955, are deemed insufficient to address the spectrum of scenarios that demand
remedies in marriages. Within the context of fault-based divorce grounds, couples might find
themselves in situations where the marriage has deteriorated, yet they are compelled to remain
bound by marital ties. It is important to recognize divorce not as a mere tool for breaking
sacramental ties but also as a resolution, offering an avenue to exit intolerable circumstances
characterized by high levels of tension and uncertainty within the marital relationship. In such
cases, divorce becomes a solution, granting individuals a way to extricate themselves from
untenable situations that making it impossible to stay in it.

9
https://www.scconline.com/

8
Merits and Demerits of the Theory of Irretrievable Breakdown10

Before discussing the advantages and disadvantages of the theory of irretrievable

breakdown a fundamental question arises: Can the Hindu Marriage Act be amended to incorporate
irretrievable breakdown of marriage as a valid ground for granting divorce? To address this query,
we have to bear in mind the changing nature of the family. Modern families are characterized by
a more democratic and egalitarian structure. Both spouses not only share their household but, in
many cases, also contribute to each other's earnings. With the rise of women's economic activity,
families often function as collaborative units. Consequently, if the collaborative nature of marriage
cannot be sustained, legal provisions must acknowledge this reality.

Responding to concerns that the ground of irretrievable breakdown is ambiguous, it's worth
noting that petitioners are required to establish concrete facts, such as living apart for a significant
duration. Judges are tasked with adjudicating based on factual evidence whether the parties have
indeed lived apart for the specified period. 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. It’s essential to acknowledge that an enhancement of marital integrity
doesn't come from a multitude of individuals yearning to rectify their standing in society but being
unable to do so. The ability to remarry should be attainable, similar to obtaining a death certificate
for a marriage that has long ceased to exist. The contention that irretrievable breakdown as a
divorce ground is ambiguous has already been addressed and should not outweigh the benefits of
this approach.

10
Poonam Pradhan Saxena Family Law Lectures: Family Law II, 2nd Edition 2007 Reprint
2010
9
10