This article is written by Ms.Ayushi yadav, a B.A.LLB 3rd year student of Llyod Law College, Greater Noida.

Abstract:

The irretrievable breakdown of a marriage refers to a situation where the relationship has reached a point of no return, characterized by the absence of any reasonable chance for reconciliation. This breakdown may stem from various factors, including communication issues, trust violations, or incompatible values. Legal systems often use irretrievable breakdown as grounds for divorce, acknowledging that the marriage has deteriorated beyond repair, making it impractical or impossible for the spouses to continue their union.

The Hindu Marriage Act perceive few reason for disintegration of marriage in Section 13.But with the adjustment in the social mores and in perspective of the changing idea of marriage in the general public, the incomparable court has demonstrated exceptional worry over the matter of making lost breakdown of marriage as a ground for separate.  For sure, these were extraordinary cases, as the law does not particularly accommodates the disintegration of marriage on the grounds other than those given in Hindu Marriage Act, 1955. Lost breakdown of marriage isn’t a ground for Divorce under the Hindu Marriage Act, 1955. On account of the difference in conditions and for covering a substantial number of situations where the relational unions are for all intents and purposes dead and unless this idea is squeezed into administrations, the separation can’t be conceded.

Introduction:

                 “Two people decide to get a divorce, it isn’t a sign that they ‘don’t understand’ one another, but a sign that they have, at least, begun to.”                       -Helen Rowland

Marriages, as they define, are made in heaven and solemnized on earth. It is a sacrament for Hindus, a sanctified contract for Muslims and a sacred knot for Christians. Husbands and wives vow for each other, yet there have been innumerable cases of betrayals by the spouses.

The complexity of modern society and its possible consequences such as fast changing socio economic conditions, the disintegration of the joint family structure, the rapid development of industrialization and urbanization, education and employment and laws giving equal status and rights to women, led a tremendous impact on the institution of marriage. Few decades ago divorce was considered as an evil, the grounds of divorce were very limited and it was sought only under compelling circumstances. Positions have however, changed now. Marriage is no longer treated as an indissoluble union. In fact, there has been a considerable legislative and judicial interference in the sphere of matrimonial laws during the past few decades all over the world. In view of the changing times, divorce laws are being substantially modified and liberalized.

Under Hindu Marriage Act, 1955 the relevant provisions of the Hindu Marriage Act regarding divorce are contained in sections 13, 13A and 13B. It may be mentioned that section 13B provides for a decree of divorce by mutual consent and was inserted in 1976.

A petition for divorce on the ground of irretrievable breakdown of marriage as visualised by us would not make it necessary for the court to go into the question as to which party was at fault before granting a decree of divorce, and it would be enough to prove that the relations between husband and wife have reached such a breaking point that there is no possibility of reconciliation.

MEANING AND DEFINITION OF IRRETRIEVABLE BREAKDOWN OF MARRIAGE:

MEANING:

• According to Merriam webster, Irretrievable breakdown of marriage is a broad ground for divorce that is predicated on the development of incompatibility between marriage partners and that is used in many states as the sole ground of no-fault divorce also called irremediable breakdown of the marriage, irretrievable breakdown.
• According to Black’s law Dictionary, Irretrievable breakdown of marriage as a no-fault ground for divorce means a condition in which either or both spouses are unable or unwilling to cohabit as husband and wife and for which there are no prospects for reconciliation.  In some jurisdictions, it is the sole ground for so-called no-fault divorce.

DEFINITION:

• Irretrievable Breakdown of Marriage is when, despite the parties’ best efforts, their marriage cannot be restored to as it was before. It is often used as a no-fault ground for divorce, meaning that neither party needs to prove that the other is at fault for the breakdown of the marriage.
• Irretrievable breakdown of marriage means marriage has deteriorated to a point where it cannot be repaired or reconciled. It is often used as a legal ground for divorce, indicating that the relationship has broken down irreversibly, making further attempts at reconciliation futile. Legal systems vary, but this concept generally implies that the marriage has reached a point of no return, and continuing the marital relationship is not in the best interest of the parties involved.

History of Irretrievable Breakdown of Marriage:

In its 71st Report, the Law Commission of India recommended the inclusion of irretrievable breakdown of marriage as a separate ground for obtaining divorce under the Hindu Marriage Act of 1955. The report was submitted to the Ministry of Law and Justice in 1978, and since then, there have been several attempts to amend the law to include this ground for divorce.

The Law Commission’s recommendation was based on the recognition that the current grounds for divorce under the Hindu Marriage Act were inadequate and did not reflect the realities of modern marriages. The report noted that in many cases, marriages had broken down irretrievably, but the parties were unable to obtain a divorce because they could not prove any of the existing grounds for divorce.

The inclusion of irretrievable breakdown of marriage as a separate ground for divorce would make it easier for parties to obtain a divorce without having to prove any fault on the part of the other spouse. This would be particularly beneficial in cases where one party is unwilling to grant a divorce or where the parties have been living separately for a long period of time and there is no chance of reconciliation.

However, despite the Law Commission’s recommendation, the Hindu Marriage Act has not been amended to include the irretrievable breakdown of marriage as a separate ground for divorce. There have been several attempts to amend the law over the years, but these attempts have been met with opposition from various quarters, including some religious and conservative groups.

Theories of Divorce:

1) Fault Theory

Under the Fault theory alternatively known as the offence theory or the guilt theory, marriage can be dissolved only when either party to the marriage has committed a matrimonial offence.

The HMA allows divorce on the fault theory, and the same is enshrined under Sections 13(1), 13(1-A) and 13(2). Section 13(2) of HMA allows the wife alone to seek divorce on additional grounds. The given sections are explained under the part of Legal Provisions later in this article for better clarity.

2) Mutual Consent Theory

The underlying rationale behind this theory is that when two people have the freedom to marry by their free will, they should also be allowed to move out of the relationship of their own free will.

This theory is however criticized on the ground that use of this theory may lead to immorality as parties may tend to dissolve their marriage even if there were slight incompatibility of temperament which would be in contradiction to the institution of Hindu Marriage which is considered a sacrament.

Section 13B of HMA deals with the concept of Divorce by Mutual Consent.

3) Irretrievable Breakdown Theory

The irretrievable breakdown of marriage is defined as “such failure in the matrimonial relationships or such circumstances adverse to that relationship that no reasonable probability remains for the spouses to live together as husband & wife.”

There is no legislative provision relating to this theory of divorce. Such a marriage should be dissolved with maximum fairness & as soon as possible to pave for a better future for both the spouses.

The Supreme Court has time and again evolved the grounds on which divorce can be granted, some of which are as following for dissolving the marriage that has broken down irretrievably:

• The time for which parties stayed together.
• The time, the parties last cohabited.
• Allegations made by parties against each other.
• Order, if any, passed in a legal proceeding between the parties.
• Attempts made to settle the dispute by the family.
• The separation period should be more than 6 years.

SUPREME COURT JURICDICTION UNDER ARTICLE 142 OF CONSTITUTION OF INDIA

Article 142 of the Constitution of India is one such provisions which empowers the Supreme Court to pass such “Decree or Order” as may be necessary for doing complete justice between the parties. 

The Supreme Court’s power under Article 142(1) to grant of divorce on the ground of irretrievable breakdown of marriage is not a matter of right, but a discretion which is to be exercised with great care and caution to ensure complete justice in a case.

The power is not limited to granting divorce under Fault Theory, but also extends to granting divorces under No-Fault Theory and the Court must be satisfied that the facts established by the parties clearly show that the marriage has completely failed and there is no possibility that the parties will cohabit together.

The power further allows exemption on the cooling period of 6-18 months that has to be observed by the parties to rethink and introspect their decision before getting a divorce. The exemption can only be granted if the parties are able to convince the Hon’ble Apex Court that there is no possibility of reconciliation, and it is meaningless to prolong the agony. The Apex Court further has the power to quash and set aside other proceedings that run side by side with the matrimonial dispute.

The court clearly stated that the parties have not been given a right to file a writ petition under Article 32 to directly seek divorce.

• Case: Sangamitra Ghose vs. Kajal Kumar Ghosh, under this case court said, we are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties beyond repair and that the marriage has been wrecked beyond the hope of salvage and therefore public interest and interest of all concerned lies in the of the recognition of the fact and to declare defunct de jure what is already defunct de facto.
• In the case of Navin Kohli vs Neelu Kohli, the Supreme Court made a strong plea to the Union of India for incorporating irretrievable breakdown of the marriage as a separate ground for divorce under Section 13 of the Hindu Marriage Act 1955 and amending the Hindu Marriage Act.

It should be noted that no court in the country except the Supreme Court can grant   divorce on the ground of irretrievable breakdown of matrimonial relationship.

MERITS AND DEMERITS OF IRRETRABLE BREAKDOWN OF MARRIAGE:

• Merits of Irretrievable Breakdown of Marriage:

1) Emotional Relief: The recognition of irretrievable breakdown allows couples to move forward, providing emotional relief from a strained or unhappy marriage.

2) Freedom to Rebuild Lives: It enables individuals to rebuild their lives separately, pursuing personal growth and happiness outside the confines of a broken marriage.

3) Reduced Conflict: Acknowledging irretrievable breakdown can reduce prolonged legal battles, minimizing emotional distress for both parties and any children involved.

4) Efficiency in Legal Proceedings: Simplifying divorce proceedings based on irretrievable breakdown can lead to a quicker and more efficient legal process, reducing stress and financial burden.

5) Focus on Co-Parenting: Couples can shift their focus to effective co-parenting when the emphasis is on ending the marriage amicably rather than assigning blame.

• Demerits of Irretrievable Breakdown of Marriage:

1) Potential for Unilateral Decision: In some cases, one party may declare irretrievable breakdown without the consensus of the other, leading to feelings of injustice or a lack of closure.

2) Impact on Children: While it can minimize conflict, divorce can still have emotional consequences for children, and the concept of irretrievable breakdown may not address all the challenges they face.

3) Financial Implications: Divorce, regardless of the reason, often involves financial adjustments. The irretrievable breakdown may not consider financial disparities or injustices adequately.

4) Social Stigma: In societies where divorce carries a social stigma, the acceptance of irretrievable breakdown might contribute to judgment and societal pressure.

5)Potential for Exploitation: In some cases, one spouse may exploit the irretrievable breakdown clause to gain advantages in terms of asset division, alimony, or child custody, leading to perceived unfairness.

CRITICISM OF IRRETRABLE BREAKDOWN OF MARRIAGE:

• 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.

• 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 divorce.

• Case Laws:

1) Naveen Kohli v. Neelu Kohli (2006): A landmark case on divorce on the ground of cruelty, the SC also iterated that when a marriage has broken down irretrievably and there is no possibility of reconciliation, it can be a valid ground for divorce. The court recognized that forcing the parties to live together would only lead to greater misery.

2)Kanchan Devi v. Promod Kumar Mittal (2010): In the present case, the Delhi High Court reiterated the principle that if a marriage has broken down irretrievably and there is no chance of the spouses coming together, it is a valid ground for divorce.

3)Rajib Kumar Roy v. Sushmita Saha (2023): In this recent pronouncement SC held that keeping the parties together despite irretrievable breakdown of marriage amounts to cruelty on both sides.

4) Ramesh Chander v. Savitri: Supreme Court without going into the merits of the case cut short the matter on the basis that, “the marriage is dead emotionally and practically. Continuance of marital alliance for name sake is prolonging the agony and affection the marriage being dead the continuance of it would be cruelty and in exercise of the power under Article 142 of the Constitution of India the court dissolves the marriage.”

5) Jorden v. Chopra: Whether divorce may be granted on a ground which has no place in Hindu Marriage Act. The Court observed that, “surely the time has now come for a complete reform of law of marriage and make a uniform law applicable to all people irrespective of religion and caste. It appears to be necessary to introduce irretrievable break down of marriage as ground for divorce in all cases. The Supreme Court have granted divorces on the ground of irretrievable break down of marriage in various case, but the said ground is not available independently in any statutory law. The Supreme Court has granted divorces on the ground of irretrievable break down of marriage while exercising its powers under Article 142 of the Constitution of India.

6) V. Bhagat v D. Bhagat: Under this case court said  that irretrievable break-down of the marriage is not a ground by itself for a decree of divorce. While scrutinizing the evidence on record it may be relevant to determine whether the ground alleged is made out. It cannot be said in case a marriage is found to have been broken down to an extent that it was beyond all rapprochement or reconciliation, then whether any ground as laid down by law exists or not the court ought to hold or can take circumstances alone,
as a ground for dissolving the marriage.

CONCLUSION

The conclusion of an irretrievable breakdown of marriage typically refers to the point at which the couple determines that their relationship is beyond repair. This decision may involve factors such as constant conflict, lack of communication, or irreconcilable differences. Legal proceedings, like divorce, often follow this acknowledgment, allowing the couple to formally dissolve their marriage. It’s a complex and emotional process that involves legal documentation and, in some jurisdictions, a waiting period before the divorce is finalized.

In any case, it must be noticed that hopeless breakdown of marriage is an idea that is important to be perceived judicially. This idea unquestionably prompts separate being given by the courts all the more effectively yet it additionally important to underline the way that as indicated by the arrangements, such separations must be allowed simply after an exhaustive comprehension of the conditions by the courts and an appraisal if the marriage is really broken unrecoverable. Inferable from the present comprehension of marriage which is part sacrosanct and part authoritative, it is to be comprehended that a marriage which isn’t working and does not have any substance hopelessly is in an ideal situation broken. Since decades, there have been various judgments that reiterated the requirement for this idea and having at long last been ordered, this change comes as a gift for various couples stuck in a broken marriage with no response.

 

REFERENCES

1) Hindu marriage act, 1955

2) The constitution of India, 1950

3)https://www.merriam-webster.com/legal/irretrievable%20breakdown%20of%20the%20marriage

4)https://blacks_law.en-academic.com/14419/irretrievable_breakdown_of_marriage

5)https://www.jstor.org/stable/43952052

6)https://blog.ipleaders.in/irretrievable-breakdown-marriage-history-applicability-current-status-india/

7)https://www.legalserviceindia.com/articles/irrbdom.htm

8) Law Commission of India, 71nd Report, ‘irretrievable Breakdown Of Marriage – Another Ground For Divorce’ Government of India, Ministry of Law, March,2009