Irretrievable breakdown of Marriage: Need of an hour

Submitted by
Jyoti Sharma
UID- SF0116020
2nd Year, 4th Semester

Faculty in Charge
Mr. Thangzakhup Tombing

NATIONAL LAW UNIVERISTY AND JUDICIAL ACADEMY, ASSAM

GUWAHATI

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 Table of Content
1. Introduction
1.1 Literature Review
1.2 Scope and Objectives
1.3 Research Questions
1.4 Research Methodology
2. Concept of Irretrievable breakdown of marriage
3. Evolution of Irretrievable breakdown of marriage
4. Judicial Precedents
5. Irretrievable breakdown of marriage: A dream or reality
6. Conclusion
7. Bibliography

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 Chapter-1
Introduction
Marriage in Hindu Law is seen as a sacrament as opposed to a contract. Before the enactment of
the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), divorce was not provided for
in Hindu law since marriage was seen as a permanent union of two people. The Act for the first
time permitted filing a petition for divorce on certain specified grounds. These grounds were
based on fault on the part of the respondent. Subsequently, in 1964 grounds partially based on
breakdown of marriage were added and in 1976 divorce by mutual consent was introduced.
Whenever the question of inclusion of irretrievable breakdown of marriage as a ground for
divorce is mooted, the opponents argue that “divorce by mutual consent” introduced in the Hindu
Marriage Act in 1976 more than covers the situation. It is important to note that “mutual
consent” requires the consent of both the parties and if one or the other does not cooperate, the
said ground is not available. ‘Irretrievable breakdown of marriage’, on the other hand, is a
ground which the Court can examine and if the Court, on the facts of the case, comes to the
conclusion that the marriage cannot be repaired/saved, divorce can be granted. The grant of
divorce is not dependent on the volition of the parties but on the Court coming to the conclusion,
on the facts pleaded, that the marriage has irretrievably broken down. Irretrievable breakdown of
marriage comes under the breakdown theory where the marriage is supposed to have reached a
point wherein there is complete breakdown of the institution with no scope for retrieval of that
previously existing bond. In India, the first major proponent of this concept was through the
71st Report of the Law Commission of India (1978) which dealt with the question if the granting
of divorce should be based on fault theory or on breakdown theory. 
This project is an attempt to do an in-depth study on irretrievable breakdown of marriage as a
ground for divorce. It will briefly discus about the evolution of irretrievable breakdown of
marriage and would also deal with various judicial precedents. Further it would go on to assess
the legal effects of the judgment.

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1.1 Literature Review

1. Law of Marriage and Divorce, Paras Diwan, Universal Law Publishing Co.
Pvt Ltd, 2011
This book mainly deals with the conceptual framework on Irretrievable breakdown of marriage.
It also deals with the merits and demerits of the irretrievable breakdown of marriage. In this book
irretrievable breakdown of marriage is also dealt under Hindu marriage law and Islamic law.

2. Family law: Marriage, Agnes Flavia, Oxford Publications, 2011

This book focuses on irretrievable breakdown of marriage as a ground for divorce. It also deals
with the historical perspective of the theory of irretrievable breakdown of marriage. This book
examines family law in the light of social realities, contemporary rights discourse, and the idea
of justice.

3. Irretrievable breakdown of marriage: A ground for divorce, Kusum, Indian

Law Institute, Vol 20:2
This article mainly deals with the various judicial precedents given by the court on irretrievable
breakdown of marriage as a ground for divorce. It also deals with the legal effects of those
judgments as well as on the current scenario of the theory of irretrievable breakdown of
marriage.

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1.2 Scope and Objectives
The main scope and objectives are:
 To study the concept of Irretrievable breakdown of marriage.
 To study the evolution of Irretrievable breakdown of marriage
 To analyse the Judicial precedents
 To analyse the current scenario of the theory of irretrievable breakdown of marriage?
1.3 Research Questions
1. What is irretrievable breakdown of marriage?
2. What is the historical perspective of irretrievable breakdown of marriage?
3. What are the judicial decisions on irretrievable breakdown of marriage?
4. What is the current scenario of the theory of irretrievable breakdown of marriage?
1.4 Research Methodology
1. APPROACH TO RESEARCH
In this project doctrinal research was involved. Doctrinal Research is a research in which
secondary sources are used and materials are collected from libraries, archives, etc. Books,
journals, articles were used while making this project.

2. TYPE OF RESEARCH
Explanatory type of research was used in this project because the project topic was not relatively
new and unheard of and also because various concepts were needed to be explained.

3. SOURCES OF DATA COLLECTION

Secondary source of data collection was used which involves collection of data from books,
articles, websites, etc. No surveys or case studies were conducted.

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 Chapter-2
Concept of Irretrievable break down of marriage
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. The Irretrievable breakdown theory of divorce is the fourth and the most controversial
theory in legal jurisprudence, based on the principle that marriage is a union of two persons
based on love affection and respect for each other. If any of these is hampered due to any reason
and if the matrimonial relation between the spouses reaches to such an extent from where it
becomes completely irreparable, that is a point where neither of the spouse can live peacefully
with each other and acquire the benefits of a matrimonial relations, than it is better to dissolve
the marriage as now there is no point of stretching such a dead relationship, which exist only in
name and not in reality. The breakdown of relationship is presumed de facto. The fact that parties
to marriage are living separately for reasonably longer period of time (say two or three years),
with any reasonable cause (like cruelty, adultery, desertion) or even without any reasonable
cause (which shows the unwillingness of the parties or even of one of the party to live together)
and all their attempts to reunite failed, it will be presumed by law that relationship is dead now.1

This means that the couple can no longer live together as husband and wife. Both partners, and
one partner, must prove to the court that the marriage broke down so there is no reasonable
chance of getting back together. 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 than 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
1
Paras Diwan, “Law of marriage and divorce”, Universal law publishing Co. Pvt Ltd, 2011

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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 the Legislature
must consider irretrievable breakdown of marriage as a ground for grant of divorce under the
Hindu Marriage Act, 1955.

The only merit of the theory as has been propounded by the jurists is that a marriage, which in
practice is considered to be sacramental institution, should be based on grounds on which a
sound marriage is built- that is tolerance, adjustment and respecting each other. If any of the
party to marriage is not ready to live with the other party the relationship will not be a happy
relationship. Stretching such a relationship will do no good, rather will develop hatred and
frustration among the parties for each other. Therefore to protect the sanctity of marriage, to
reduce the number of unhappy marriages and to prevent from getting wasted the precious years
of life of the spouses, it is necessary to dissolve such a marriage. But the theory also has some
demerits i.e. The Law Commission of India in Chapter 4 of the 71st report has dealt in detail the
demerits of the irretrievable breakdown theory. The two main oppositions discussed in the report
are as follows: (i) it will make divorce easy. It will allow the spouses or even to any one of the
spouses to dissolve the marriage out of their own pleasure. (ii) It will allow the guilty spouse to
take the advantage of his own fault by getting separated and dissolving the marriage.2

Thus, irrespective 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 courts face some difficulties in granting
the decree of divorce due to some of the technical loopholes in the existing theories of divorce.
Both the Supreme Court and Law Committee consider the implementation of such a theory as a
boon to parties who for one or the other reasons are unable to seek the decree of divorce.
Therefore in the opinion of the Supreme Court and Law Commission of India, it is very essential
to make it a special and separate ground mission that introduction of irretrievable breakdown of
marriage, as a special ground will do any public good.

2
Paras Diwan, “Law of marriage and divorce”, Universal law publishing Co. Pvt Ltd, 2011

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 Chapter-2
Evolution of Irretrievable breakdown of marriage
The concept of irretrievable breakdown of marriage was for the first time introduced in New
Zealand where it was recognized that it needn’t be necessary for there to be some fault or other
for a spouse to want to opt out of a marriage and hence the law has to recognize and cater to that
requirement. In England, it was the case of Masarati v. Masarati that had opened the gate for the
theory3and the House of Lords 1943 decision in Blunt v. Blunt4 made it increasingly accepted
that no public interest was served by keeping legally in existence a marriage which had in fact
broken down. The Law Commission of England in a report had said that there are two objectives
to good divorce laws: (1) To buttress rather than undermine the stability of marriage (2) When
regrettably a marriage has broken down, to enable the empty shell to be destroyed with
maximum fairness and minimum bitterness, humiliation and distress.56

In India, the first major proponent of this concept was through the 71 st Report of the Law
Commission of India (1978) which dealt with the question if the granting of divorce should be
based on fault theory or on breakdown theory. It emphasized that restricting divorce grounds
based on faults shall cause injustice to those couples who are stuck in situations where neither
party have any fault with the marriage having become a merely an external appearance without
any efficacy. There are two theories that are prevalent in Divorce Law in India, i.e., the Fault
Theory and the Mutual Consent Theory. Even though they cater to a large part of the divorce-
seeking couples, it is imperative to provide provisions wherein there has been, for example, such
emotional damage to marriage, something that a couple might not want to disclose to people
outside their marriage, and there’s no hope or chances of reconciliation. They should have the
choice and the ability to dissolve the marriage and part ways without having to go through the
ordeals of the legal system and having to appeal to higher courts as till now it has only been the
higher courts that have shown the authority to be able to dissolve marriages on the grounds of
irretrievable breakdown.

3
[1969] 1 WLR 393, CA;
4
[1943] AC 517, HL
5
Paras Diwan, “Law of marriage and divorce”, Universal law publishing and Co., 6th Edition, 2011, pg. 29
6
Agnes Flavia, “Family Law: Marriage”, Oxford Publications, 2011

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 Chapter-3
Judicial Precedents
Even though irretrievable breakdown of marriage has not been stated under Section 13 of the
Hindu Marriage Act, 1955 as a ground for divorce, there have been many judgments which gave
decisions based on the principle. To further understand the scope of the model, few landmark
case laws have been discussed:

1. Jorden Diengeh v. S.S. Chopra AIR 1985 SC 395: On 10th May 1985 Supreme Court of
India through Justice Chinnappa Reddy and Justice R.B. Mishra held that “law relating to
judicial separation, divorce and nullity of marriage is far, from uniform. Surely the time has
come for a complete reform of the law of marriage and make a uniform law applicable to all
persons irrespective of religion or caste. It appears to the necessary to introduce irretrievable
break down of marriage and mutual consent as grounds of divorce in all cases”. The Supreme
Court observed that it appears to be necessary to introduce irretrievable breakdown of marriage
and mutual consent as grounds of divorce in all cases. They suggested that it would also provide
for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy
situation in which couples like the present have found themselves. There is no point or purpose
to be served by the continuance of a marriage which has so completely and signally broken
down.
2. Naveen Kohli v. Neelu Kohli AIR 2006 SC 1675: In Naveen Kohli v. Neelu Kohli the
Supreme Court recommended to the Union of India to seriously consider bringing an amendment
in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground
for divorce in the following words: “Before we part with this case, on the consideration of the
totality of facts, this Court would like to recommend the Union of India to seriously consider
bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown
of marriage as a ground for the grant of divorce.” The parties were living separately for more
than 10 years, and a very large number of civil and criminal proceedings were initiated by the
respondent against the appellant. The court held that the matrimonial bond between the parties is
beyond salvage. The court further held that preservation of such marriage would be a greater
source of misery for both the parties. 7

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Kusum, “Irretrievable breakdown of marriage: A ground for divorce”, Indian Law Institute, Vol 20:2

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3. Satish Sitole v. Smt Ganga AIR 2008 SC 3093: On 10th July 2008, Justice Altamas Kabir
and Justice Aftab Alam of Supreme Court held that “ Having dispassionately considered the
materials before us and the fact that out of 16 years of marriage the appellant and the respondent
had been living separately for 14 years, we are also convinced that any further attempt at
reconciliation will be futile and it would be in the interest of both the parties to sever the
matrimonial ties since the marriage has broken down irretrievably. We are of the view that since
the marriage between the parties is dead for all practical purposes and there is no chance of it
being retrieved, the continuance of such marriage would itself amount to cruelty and
accordingly, in exercise of our powers under Article 142 of the Constitution we direct the
marriage of the appellant and the respondent shall stand dissolved”

4. Samar Ghosh v. Jaya Ghosh (2007) 4 SCR 428: In this case on 26th March 2007 Justice B
N Agrawal, P P Naolekar and Dalveer Bhandari held that “when we take into consideration that
parties are living separately for more than sixteen and half years, the irresistible conclusion
would be that matrimonial bond has been ruptured beyond repair because of the mental cruelty
caused by the respondent”. The appellant husband and respondent wife were IAS officers and
respondent had a female child from her first marriage. They married in 1994 but the respondent
declared her decision unilaterally not to give birth to child for two years and the appellant should
keep himself aloof from her as far as possible. Since 1990 they started living separately and no
interaction thereafter for more than sixteen and half years. When the appellant was seriously ill
and the surgical intervention of bye-pass surgery had to be restored to, even on that occasion,
neither the respondent nor any member of her family bothered to enquire about the health of the
appellant even on telephone. This instance is clearly illustrative of the fact that now the parties
have no emotion, sentiments or feelings for each other. This is a clear case of irretrievable
breakdown of marriage, it is impossible to preserve or save the marriage. Any effort to keep it
alive would prove to be totally counterproductive.

Chapter-4
Irretrievable breakdown of marriage: A dream or reality

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It is true that the legislature failed to amend the law to include irretrievable breakdown of
marriage as a ground for divorce though the Law Commission of India recommended the same
way back in 1978 (71st Report) as well as in 2009 (217th Report) and the Supreme Court also in
Jorden Diengdeh v. S.S. Chopra and in Naveen Kohil v. Neelu Kohil it was observed the
importance of irretrievable breakdown of marriage. Besides, Supreme Court of India in a number
of cases has taken the view that in cases of irretrievable breakdown of marriage, there is no point
or purpose to be served by the continuance of a marriage which has so completely broken down
and in exercise of powers under Article 142 of the Constitution dissolved such marriages.
Marriage Laws (Amendment) Bill, 2010, introduced in Rajya Sabha on 2nd May 2012, seeks to
make “Irretrievable breakdown of marriage” a new ground for grant of divorce. According to the
amendments while a wife can oppose a husband’s plea for a divorce under the new “Irretrievable
breakdown of marriage” clause, the husband will have no such rights to oppose if the wife moves
the court on the same grounds. The Union Cabinet of India on 23rd March 2012 approved the
redrafted Marriage Laws (Amendment) Bill, 2010 to give the wife and children a clearly-defined
share in the husband’s immovable property in case of divorce. On 26th August 2013, Rajya
Sabha passed the bill to amend the Hindu Marriage Act as well as Special Marriage Act that
provide for Irretrievable breakdown of Marriage as a ground for divorce and grants women the
right to share in the property of husband. But the Supreme Court on 1st July 2013 while deciding
this case, viz. Darshan Gupta v. Radhika Gupta failed to take into consideration the latest legal
changes and the proposed Marriage Laws amendment Bill which was pending before the Rajya
Sabha. 8

The Delhi High Court in 1971 in the case of Ram Kali v. Gopal Das 9 took note of the modern
trend prevailing in many countries, ‘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 inhumane to compel the parties to keep up the facade of marriage even though
the rift between them is complete and there are no prospects of their ever living together as
husband and wife”. After 40 years of the mentioned decision, when the world has progressed
much in every sphere of life, enacted various legislations to ensure the freedom and liberty of

8
Kusum, “Irretrievable breakdown of marriage: A ground for divorce”, Indian Law Institute, Vol 20:2

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(1971) I.L.R.1 Delhi 10 (F.B)

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individual, compelling the husband and wife to continue the matrimonial tie even when for a
considerable period they have ceased to be in such relationship as the marriage have been
frustrated, so the forced continuance is useless and mischievous adding only misery to the
parties.

Moreover, Family Courts and High Courts in India were following the above principles during
these years and granted divorce on the ground of irretrievable break down of marriage. Thus,
finally Irretrievable breakdown of Marriage has finally been inducted as a ground for divorce in
the Indian legal context not completely but in partial manner. Four decades after the first time
the concept being brought to the fore by the 71 stLaw Commission Report and after numerous
judgments re-iterating its necessity, this concept has been introduced to understand the changing
needs of the society.

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 Conclusion

Divorce in India is either provided through mutual consent or through marital wrongs. However,
with the introduction of this concept of irretrievable breakdown, we have moved towards the
model of no fault theory. This amendment provides scope for individuals to take advantage of
their own wrong as even the erring party can cite this ground for a divorce petition. Thus, it
might foster divorces rates with women being a victim to scrupulous spouses who can use the
amendment to their advantage.

However, it must be noted that irretrievable breakdown of marriage is a concept that is necessary
to be recognized judicially. This concept surely leads to divorce being provided by the courts
more easily but it also necessary to underline the fact that according to the provisions, such
divorces have to be granted only after a thorough understanding of the circumstances by the
courts and an assessment if the marriage is actually broken beyond repair. Owing to the present
understanding of marriage which is part sacramental and part contractual, it is to be understood
that a marriage which is not working and lacks any substance irretrievably is better off broken.
Since decades, there have been numerous judgments that re-iterated the need for this concept and
having finally been enacted, this amendment comes as a blessing for numerous couples stuck in a
broken marriage without any recourse.

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 Bibliography

1. Diwan Paras, “Law of marriage and divorce”, Universal Law Publishing Co. Pvt Ltd, 2011.
2. Flavia Agnes, “Family law: Marriage”, Oxford Publications, 2011
3. Kusum, “Irretrievable breakdown of marriage: A ground for divorce”. Indian law institute,
Vol20:2

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