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IRRETRIEVABLE BREAKDOWN OF MARRIAGE: A REMEDY FOR EASY

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 IRRETRIEVABLE BREAKDOWN OF MARRIAGE: A REMEDY FOR
EASY SEPARATION

Abstract
The essence of marriage is a sharing of common life, a sharing of all the
happiness that life has to offer and all the misery that has to be faced in life, an
experience of the joy that comes from enjoying, in common, things of the matter and
of the spirit and from showering love and affection on one’s offspring. Living together
is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the
disinclination of such sharing. It is indicative of a disruption of the essence of marriage
– “breakdown”- and if it continues for a fairly long period, it would indicate destruction
of the essence of marriage-or- “irretrievable breakdown”.

This article has been written keeping in view that if the marriage was dead both
emotionally and practically and there was no chance at all of its revival and continuation
of such a relationship, it would only be for name’s sake- it would only be dissolved by
passing a decree of divorce. Law should be passed by the legislature by making
‘irretrievable breakdown’ as a ground for divorce, so that it becomes easier for the
parties to get their marriage dissolved.

I. Introduction
Marriage forms the very basis of social organisation. The Hindu Marriage Act, 1955
actually regards marriage as a sacrament which is eternal in it’s being. Without the basis of
the institution of marriage, the society cannot exist at all and will hence, have no civilisation.
The foundation of a sound marriage is tolerance, adjustment and respect for each
other. Tolerance towards each other’s fault, to a certain bearable extent, has to be inherent in
every marriage. Petty differences should not be exaggerated or magnified to destroy what is
said to have been made in heaven.
‘Divorce’ is the “Dissolution of a valid marriage in law”. Once a divorce is granted, the
parties are free from any kind of obligation, legal or otherwise, towards the other party. As per
the religious point of view divorce per se, was not recognised as a means to put an end to the
marriage, which was always considered to be of sacred nature.
II. Meaning and Definition of Irretrievable Breakdown of Marriage
Irretrievable breakdown of marriage can be defined as such failure in the matrimonial
relationship or such circumstances adverse to that relationship that no reasonable probability
remains of the spouses remaining together as husband and wife for mutual comfort and
support. It is the situation that occurs in a marriage when one spouse refuses to live with other
and will not work towards reconciliation. 1 In other words, when there is no hope that parties

1 Paras Diwan, Hindu Law, 563(2005), 2nd Ed.

can be reconciled to continue their matrimonial life, the marriage can be considered as
irretrievable breakdown of marriage.
The Hindu marriage Act, 1955 and the Special Marriage Act, 1954, at present, has
existing grounds of divorce, as mentioned in section 13 and 27 respectively. In addition to
those grounds, and keeping at par with the changing times, irretrievable breakdown of
marriage was suggested, which ought to be made a ground for dissolution of marriage.

III. Historical Development of the Concept of Irretrievable Breakdown Of Marriage

The germ of the breakdown theory was first introduced in New Zealand. The (New
Zealand) Divorce and Matrimonial Causes Amendment Act, 1920, included for the first time
the provision that a separation agreement for three years or more was a ground for making a
petition to the court for divorce and the court was at discretion whether to grant divorce or not.2
In England, this theory was recognised in case of Masarati v. Masarati3, where both the
parties to the marriage had committed adultery. The Court of Appeal, on wife’s petition for
divorce, observed breakdown of marriage. According to the reports of Law Commission of
England, the objectives of good divorce law are twofold: one is, to buttress and second is,
when regrettably marriage has broken down, to enable the empty shell to be destroyed with
maximum fairness, and minimum bitterness, humiliation and distress4.
In 1969, the General Assembly of the Church of Scotland accepted the Reports of their
Moral and Social Welfare Board, which suggested the substitution of breakdown in place of
matrimonial offences. According to this Report:
“Matrimonial offences are often the outcome rather than the causes of the deteriorating
marriage. Separation for a continuous period of at least two years consequent upon a decision
of at least one of the parties not to live with the other should act as the sole evidence of
marriage breakdown.”5
The Matrimonial Causes Act, 1959 of the Commonwealth of Austria provided for the
divorce on the ground of marriage. In India, breakdown of marriage is still not ground of divorce
in spite of the recommendation of the Law Commission and various Supreme Court judgments
to include breakdown of marriage as a ground for divorce 6.
So, once the parties have separated and the separation has continued for a sufficient
period of time and one of them has presented a petition for divorce, it can well be presumed
that the marriage has broken down. The court, no doubt, should endeavour to reconcile the
parties; yet, if it is found that the breakdown is irreparable, than divorce should be granted.

2
Ladder v. Ladder, 1921 New Zealand Law Reports, 876.
3 Paras Diwan, Family Law, 29(2001), 6th Ed.
4 ibid at 564.
5 71st Report of the Law Commission of India.
6 http://www. Legal Services India.Com, visited on 30th April, 2013.
 These are the main postulates of the theory of irretrievable breakdown as a ground of
divorce.
IV. Theories of Divorce
Broadly, theories of divorce can be classified under two heads, i.e.; firstly, divorce on
the ground of fault; secondly, divorce on the ground of no fault or breakdown theory of divorce.
The theory of fault is one of the principal theory adopted in the Hindu Marriage Act,
1955 and in the other theory of breakdown, the basic principle is frustration of the marital
relationship by supervening circumstances of the specific nature.
According to Hindu Marriage Act, 1955, there are three categories of grounds of divorce.
These are:
1. Traditional Theory of Matrimonial Fault: This is the principal theory adopted in the
Hindu Marriage Act, 1955. The legally recognised grounds of divorce under this theory
are adultery, cruelty, and desertion7 and ( on wife’s petition) bigamy, certain sexual
offences and failure to pay maintenance.8 However, the most striking feature and
drawback is that if both parties have been at fault, there is no remedy available.
2. Theory of Frustration by Reason of Specified Circumstances: This is the second
ground for dissolution of marriage. There may arise circumstances which, though not
constituting fault on part of any party, render dissolution of marriage necessary since,
by reason of these supervening circumstances which do not amount to matrimonial
fault, a material change is introduced. Examples of this theory are: conversion of the
other spouse9, insanity10, diseases11, renunciation of the world by the other spouse12,
absence of the other spouse for a long period13.
3. Theory of Consent: This is the third category of divorce. Marriage is viewed in a
number of countries as a contractual relationship between freely consenting
individuals. When the consent given to the marital relationship is revoked without
necessity of showing fault or other supervening circumstances then the cause of action
arises. This theory is accepted under section 13 B (divorce by mutual consent) of the
Hindu Marriage Act, 1955. The rationale behind this theory is that since two persons
can marry by their free will, they should also be allowed to move out of their relationship
of their own free will. However, critics of this theory say that this approach will promote
immorality as it will lead to hasty divorces and parties would dissolve their marriage
even if there were slight incompatibility of temperament.

7 Section 13(1) (i), (ia) and (ib), Hindu Marriage Act, 1955.
8 Section 13(2) (i), (ii) and (iii), Hindu Marriage Act, 1955.
9
Section 13 (1) (ii), Hindu Marriage Act,1955.
10 Section 13(1) (iii), Hindu Marriage Act,1955.
11 Section 13(1) (iv) and (v), Hindu Marriage Act, 1955.
12 Section 13(1) (vi), Hindu Marriage Act, 1955.
13 Section 13(1) (vii), Hindu Marriage Act, 1955.
 It may further be added that divorce is also granted on the basis of what may be called
‘securing conformity with the legal system’. Where a marriage does not, in certain respects,
comply with the requirements laid down by the law, the legislature, in its wisdom may allow
the grant of divorce, instead of a provision for nullifying the marriage.14
There is, however, no theory of breakdown of marriage, in the sense in which it is
understood in modern times. Irretrievable divorce is to be granted only if the marriage has
actually broken down. Justice Om Parkas of Delhi High Court for the first time in Ram Kali v.
Gopal Das15, took note of the modern trend not to insist on the maintenance of a union which
has utterly broken down, and observed:
“It would not be practical and realistic approach, indeed it would be unreasonable and
inhuman, to compel the parties to keep up the façade of marriage even though the rift between
them is complete and there is no prospect of their ever living together as husband and wife”.
V. Legal Aspect of Irretrievable Breakdown of Marriage:
For the convenience of the study this aspect of irretrievable breakdown has been
divided under two heads:
(a) Present position under the Hindu Marriage Act, 1955.
(b) Need for inclusion of the law relating to Irretrievable breakdown of Marriage.

Present position under the Hindu Marriage Act, 1955: Under the Hindu Marriage
Act, 1955 both the husband and the wife have given the right to get their marriage dissolved
by a decree of divorce on more than one ground specifically enumerated in Section 13 16. In
the year 1964 sub section (1-A) was inserted by which either party to the marriage was also
given a right to apply for dissolution of marriage by a decree of divorce either where there has
been no resumption of cohabitation for a period specified there in, after the passing of the
decree for judicial separation, or where there has been no restitution of conjugal rights for the
period specified there in after the passing of a decree for restitution of conjugal rights.

Apart from this in sub section (2) of section 13, certain addition grounds are laid down
in this behalf which can be made use of by the wife only.17In the year 1976 the legislature has

14
For example, if the divorce is granted (at the instance of the wife) on the ground that the age of the wife was
below the statutory minimum at the time of the marriage. (Section 13(2) (iv), Hindu Marriage Act,1955.
15 1971 ILR 1 Del 10(FB).
16 For example, (i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person
other than his or her spouse; (ii) has, treated the petitioner with cruelty; (iii) has deserted the petitioner for a
continuous period of not less than two years immediately preceding the presentation of the petition; (iv) has
ceased to be a Hindu by conversion to another religion; (v) has been incurably of unsound mind, or from mental
disorder of such kind and to such an extent that petitioner cannot reasonably be expected to live with the
respondent; (vi) has been suffering from virulent and incurable form of leprosy; (vii) has renounce the world;
(viii) has not been heard of as being alive for a period of seven years or more.
17
The wife may also present a petition for dissolution of her marriage on the ground that (i) the marriage was
solemnized before the commencement of the Act and that, the husband had married again before such
commencement ; (ii) that since the solemnization of marriage , he is being guilty of rape, sodomy or bestiality;
(iii) that a decree or order for maintenance has been passed against the husband notwithstanding that the wife
was living apart and that since the passing of the decree or order, cohabitation between the parties has not
inserted section 13-B to provide for divorce by mutual consent after living apart for one year
and they have not been able to live together and they have now mutually agreed for the
dissolution of the marriage. In this case, the law requires a joint petition by both parties.

It is thus clear that the legislature has been conscious of the social developments and
the need for making available the remedy for divorce in more and more situations.

Need for Inclusion of the Law relating to the Irretrievable Breakdown of Marriage:
However, it is to be noted from above that none of the grounds made available for seeking
divorce by either the husband or the wife, speak of irretrievable breakdown of marriage as a
ground of divorce.

The basis for introducing irretrievable breakdown as a ground of divorce is that it

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 want to divulge
it, yet there has arisen a situation in which the marriage cannot be worked.

The marriage has all the external appearances of marriage, but none of the reality. It is
merely a shell out of which the love, affection and care has gone. In such circumstances, there
is hardly any utility of maintaining the marriage, when the emotional and other bounds which
are of 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. The parties alone can decide whether their mutual relationship provides
for fulfilment which they seek. Divorce should be given as a solution and an escape route out
of a difficult situation.
Today’s wife is not ready to merely live at the mercy of her husband and the members
of his family. A sense of confidence and self respect has come to be instilled in the wife in
view of advanced socio-economic conditions. The wives are ready to face challenges in life.
They are keen to become self- dependent. They are now prepared to live separately rather
than to stay united while unhappy.
Once the parties have separated and the separation has continued for a sufficient
length of time and one of them has presented a petition for divorce, it can wall be presumed
that the marriage has broken down. The courts, if it is found that the breakdown is irreparable,
should grant divorce.

VI. Irretrievable Breakdown of Marriage and the Role of Judiciary :

been resumed for one year or upwards; (iv) that her marriage (whether consummated or not) was solemnized
before she attained the age of 15 years and that she had repudiated the marriage after attaining the age of 15
years, but before attaining the age of 18 years.
 A marriage may be treated as irretrievably broken down if cessation of cohabitation
has taken place for a period of two years or more. History is the evidence to show that there
were innumerable cases when marriage was utterly broken, but in some cases, the courts did
stick to the letter of the law, and thus because of being tied by the technicalities of the law,
could not give meaningful relief to the parties,18 and yet we can find certain cases where the
court did grant divorce, through interpretation of the law, in spite of any particular law allowing
the same. The Apex court in Kanchan Devi v. Pramod Kumar Mittal,19took recourse of Article
142 of the Constitution and dissolve a marriage on the ground that the marriage has
irretrievable breakdown. A.S. Anand and Faizan Uddin, JJ of Supreme Court observed that:
“We in the exercise of our powers under Article 142 of Constitution of India, here by
direct that marriage between the appellant and respondent shall stand dissolved by a decree
of divorce, since there appears no hopes of reconciliation in the parties in question.”
Similarly, the Bombay High Court in Madhukar Bhaskar Sheorey v. Saral Madhukar
Sheorey,20held that the enactment of section 13(a) of Hindu Marriage Act,1955 is a legislative
recognition of the principle that is in the interest of society, if there has been a breakdown of
the marriage; then there is no purpose in keeping the parties tied down to each other. It would
not only be injurious to the peace of the society, but also in the future relations of the parties.

Of late, however, the courts have been adopting a more realistic view to deal with the
cases. They are adopting more liberal and practical approach and several judgments 21 of the
different courts, prove the fact that they no longer stick to the traditional notion of the
inviolability of the marital tie.

One of the cases relating to irretrievable breakdown of marriage is V.Bhagat

v.D.Bhagat22, Jeewan Reddy and Kuldeep Singh JJ. Of Apex Court observed that, irretrievable
breakdown of marriage is not a ground by itself. But while ascertaining the evidence on record
to determine whether the ground alleged are made out and in determining the relief to be
granted, the said circumstances be borne in mind .The Supreme court observed that:

“It would indeed be a matter of serious concern, if both, the law and the courts fail in
taking notice of the miseries of the parties, since the long continuous separation itself reflects
the irreparable status of relations between the couple, and marriage, subsisting as a formal
bond is an empty formality, which ultimately undermines the essence and significance of

18 N.G. Dastane v. S. Dastane, AIR 1975 SC 1534.

19
1996 SCALE (3) 293.
20 AIR 1973 Bom.55.
21 Ajay Sayaji Rao Desai v. Rajshree Ajay Deasai, AIR 2005 Bom 270; Ashok Hurra v. Rupa Bipin Zaveri, (1997)
4 SCC 226; Chandrakala Trivedi v. Dr. S.P. Trivedi, (1993) 4SCC 232.
22 AIR 1994 SC 710.
marriage as a social institution and provides enough scope for unimaginable crimes within
four walls of the house!”23

Again the Supreme Court in Naveen Kohli v. Neelu Kohli,24has once again made a
strong plea for incorporating irretrievable breakdown of marriage as a ground of divorce. The
three judges bench of Supreme Court namely, Bhandari,,B.N.Aggrawal,and A.K. Mathur, JJ.
After analysing in great detail the facts and circumstances of the case, along with various
decisions on such attitude of parties amounting to mental cruelty, and also the appropriate law
on issue, dissolve the marriage. It was held that:

“Once the marriage has broken down beyond repair, it would be unrealistic for the law,
not to take notice of the fact, and the forcibly continued marriage would only act as a detriment
to the future of the parties involved.”

According to Dr. A.R. Lakshmanan and Tarun Chatterjee JJ. Of Supreme Court, if after
examining the facts and circumstances of the case it will not be possible for the parties to live
together, and if no purpose is solved in compelling both the parties to live together, the best
course was to dissolve the marriage by passing a a decree of divorce so that the parties who
were litigating since 1981 and had lost valuable pare of life could live peacefully in remaining
part of their life.25
VII. Conclusion and Suggestion :

It is true that marriages are made in heaven and broken on earth, hence appropriate
care has to be taken to see that such marriages are not broken easily. Just as every coin has
two sides, the possibility that the insertion of a new ground of divorce will be misused cannot
be set aside, but at the same time, there is a need to look at the bigger picture and to protect
the interests of the parties suffering, but unable to get divorce because of the technicalities of
the law. To prevent a few bad things from happening, the law should not hinder the needs of
the larger lot. Justice V.R. Krishna Iyer in Aboobacker v. Manu26, stated that:

“While the stream of life, lived in marital mutuality, may wash away smaller pebbles,
what is to happen if intransigent incompatibility of minds break up the flow of stream. Thus, is
crystal clear that when the relationship is not going good and unnecessary maintained on
papers where the feelings of trust, love does not exist and no scope of recovery of relationship
is there it is better to end the relationship, incompatibility is often a major reason for
unhappiness. When friends can end their relationship, why can’t a couple? However, a safety
clause can be inserted which would empower the courts to refuse divorce if it is adversely
affects the interest of children and a provision should be made for the maintenance for child

23 Id.
24 AIR 2006 SC 1675.
25 Rishikesh Sharma v. Saroj Sharma, (2006) 12 SCALE 282.
26 AIR 1971 KLT 663.
and wife. It should also include the maintenance of husband and children by the wife because
in the changing scenario it’s no more that women sits in four walls of the house even she is
incompatible enough to meet the expenses of the family and have a full right of maintenance
of her own child.”

Moreover, in India, divorce was considered as an evil and it was very limited which
sought only under compelling circumstances. By including such clause of irretrievable it would
be a shame and unjust on the part of the country where relationship are given the first
preference and it would be just to adopt an another theory of westernization. So, courts should
not grant the decree of divorce until and unless, adequate provisions for maintenance of
children and wife are made, keeping in mind the financial soundness of the parties to the
marriage.

Some suggestions are being proposed for the better implementation of the provisions
relating to irretrievable breakdown of marriage:

1. If the relationship between the parties is not going pleasant and the gap is increasing
owing disliking, bitterness and hatred and if the courts are satisfied that there is justified
grounds for granting divorce the courts must pass an order for divorce after making due
provisions for alimony of wife and children.
2. The second suggestion is where the parties are making default in paying the amount of
maintenance then the amount of maintenance should be deducted from the husband’s
salary, if the husband is employed in Government or in public or private sector. The
question regarding the amount of maintenance which is to be deducted from husband’s
salary is at least 1/3rd of the salary which is to be deducted in lieu of maintenance.
3. If the husband is self employed , provisions should be made for maintenance, with the
State as a party, for the protection of the deserted family.
4. In another case where the men employed overseas, enter into dubious or deceptive
marriages with women in India. Such men, if disclaims the wife after marriage and the
deserted wife is left without any provision for her livelihood or maintenance. It is
suggested that in order to overcome this deficiency, the husband should make a
declaration of assets and provide at the time of marriage, for the wife’s maintenance.
5. Next important suggestion is regarding the date from which the liability to pay should
arise. It is submitted that liability to pay should arise precisely from the date when the
duty to pay maintenance is violated and the date of omission or neglect to maintain a
spouse or child in distress should, therefore, be the criterion in this regard.
Analysing the various provisions regarding the irretrievable breakdown of marriage,
the suggestions being discussed above if applied and enforced can prove to be beneficial for
 the proper implementation of the law because it is truly said “ justice should not only be done
but it seems to be done.”

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