Irrespective of the three remedies available to parties that is: restitution of legal right, legal 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 thanks to a number of the technical loopholes within the existing theories of divorce. This is because the judiciary particularly the law commission, consider the implementation of such a theory as a boon to parties who for one or the opposite reasons, are unable to seek the decree of divorce. Therefore within the opinion of the Supreme Court and Law Commission of India, it’s very essential to form it a special and separate ground of divorce.

Under Hindu Marriage Act, 1955 primarily there are three theories under which divorce is granted: (i) Guilt theory or Fault theory, (ii) Consent theory, (iii) Supervening circumstances theory[1]. The Irretrievable breakdown theory of divorce is that the fourth and therefore the most controversial theory in legal jurisprudence supported the principle that marriage may be a union of two persons based on love affection and respect for every other. If any of those is hampered thanks to any of the rationale (say cruelty, desertion, adultery, insanity etc) and if the matrimonial relation between the spouses reach to such an extent from where it becomes completely irreparable that’s some extent where neither of the spouse can live peacefully with one another and acquire the advantages of a matrimonial relations, than it’s better to dissolve the marriage as now there’s no point of stretching such a dead relationship, which exist only in name only and not actually . The breakdown of relationship is presumed de facto. The fact that parties to marriage live separately for reasonably longer period of your time (say two or three years), with any reasonable cause (like cruelty, adultery, desertion) [2]or even without any reasonable cause (which shows the unwillingness of the parties or even of one of the parties to live together) and all their attempts to reunite failed, it will be presumed by law that relationship is dead now.

Merits of the Theory

The only merit of the idea as has been propounded by the jurists is that a marriage, which in practice is taken into account to be sacramental institution, should be supported ground on which a sound marriage is predicated that’s tolerance, adjustment and respecting one another. If any of the party to marriage isn’t able to accept the opposite party the connection won’t be a cheerful relationship. Stretching such a relationship will do no good, rather will develop hatred and frustration among the parties for every other.[3] Therefore to guard the sanctity of marriage, to scale back the number of unhappy marriages and to stop from getting wasted the valuable years of lifetime of the spouses, it is necessary to dissolve such a marriage.

Demerits of the Theory

The Law Commission of India in chapter 4 of the 71st report has dealt intimately the demerits of the irretrievable breakdown theory. The two main oppositions discussed within the report are as follows:

• It will make divorce easy. It will allow the spouses or maybe to anybody of the spouses to dissolve the wedding out of their own pleasure.
• It will allow the guilty spouse to take the advantage of his own fault by getting separated and dissolving the marriage. Status under Indian Law irretrievable breakdown of marriage isn’t a special ground for divorce under Hindu Marriage Act, 1955 unlike the opposite three theories of divorce. However an attempt has been made to introduce the concept in section (13) (1A) which states that: Either party to marriage, whether solemnized before or after the commencement of this act can also present a petition for the dissolution of the wedding by a decree of divorce on the ground-
• That there has been no resumption of cohabitation as between the parties to marriage for a period of [one year] or upward after the passing of decree for judicial separation during a proceeding to which they were parties
• There has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upward after the passing of the decree for restitution of legal right during a proceeding to which they were parties. In either case if the parties aren’t ready to resume cohabitation for one year, any of the party to marriage can obtain a decree for divorce. Thus the common feature is that the condition of living separately for a fairly longer period of your time. However the judiciary in India has started raising the demand of such a special ground under this law effective.

CONCLUSION:

The legislature hesitates in enacting such provision since they fear that such a provision would degrade the sanctity of marriage and divorce would be claimed on trivial issues, which quite remains a possibility, and therefore adequate laws providing such safeguards and protection from hardships need to be implemented. The idea here is that cohabitation shouldn’t considered as such an important part of this ground as it can cause frustration among the parties to carry the baggage of their broken marriage just for the sake for proving it in the court as irretrievably broken down. The Supreme court in the case of Naveen Kohli vs Neelu Kohli[4] recommended the Union of India to seriously include irretrievable breakdown of marriage as a ground for divorce for the marriages which cease to exist in substance and in reality and no point is left to deny divorce.

REFERENCES:

Reports

• 71st Law Commission Report on the Hindu Marriage Act, 1955- Irretrievable Breakdown of Marriage as a ground of divorce
• 217^th Law Commission report on Irretrievable Breakdown of Marriage- Another ground for divorce

Websites

• https://indiankanoon.org
•  http://www.legalservicesindia.com/article/676/Irretrievable-Breakdown-of-Marriage.html

[1] Vinita Saxena vs Pankaj Pandit JT  2006  (3)  557

[2] Vadalasethi vs Vadalasethi, 1994 A.P 13

[3] Gaurav Nagpul vs Sumedha Nagpul, 2009  SC  1675

[4] AIR 2006 SC 1675

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