IRRETRIEVABE

BREAKDOWN
OF MARRIAGE
COMPILED BY: SUBMITTED TO:

1. MUSKAN KAPILA (28) 7. SHAVY (41) DR ASHISH

VIRK
2. NAZAM WADHERA (29) 8. TAMANNA (45)
3. PARAS AHLUWALIA (31) 9. TANVEER (46)
4. POOJA JAGLAN (34) 10. NAVDEEP
5. PRATHIBHA SINGH (35)
6. PUNEET BHUSHAN (37)
 ACKNOWLEDGEMENT
We are using this opportunity to express my gratitude to everyone who
supported us throughout the course of this project. We are thankful for their
aspiring guidance, invaluably constructive criticism and friendly advice during
the project work. We are sincerely grateful to them for sharing their truthful and
illuminating views on a number of issues related to the project.
We express our warm thanks to DR ASHISH VIRK for their support and
guidance at PURC, LUDHIANA.
We would also like to thank all the people who provided us with the facilities
being required and conductive conditions for our project.
 
Thank you

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

 CONTENTS
CHAPTER 1 : INTRODUCTION AND
HISTORY
CHAPTER 2 : INTERNATIONAL
PERSPECTIVE
CHAPTER 3 : NATIONAL
PERSPECTIVE
CHAPTER 4 : SOCIAL LEGAL
ASPECTS
CHAPTER 5 : LEGAL PERSPECTIVE
CHAPTER 6 : CONCLUSION

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

 INTRODUCTION
Irretrievable Breakdown of marriage theory states “If it is
proved to the court that a marriage has been broken down
irretrievably, then the court without asking any
cause/ground for divorce can dissolve the marriage”.
Here “Irretrievable Breakdown” refers to the removal of
substance to the marriage while the form of marriage
remains. According to Mortimer Committee’s report “It is a
situation where when a marital relation has failed such that
there is no probability that both the spouses can again live
together as husband and wife”.1
Acc to this report, when both the parties present a joint
petition in the court for divorce on this ground, then the
court without much looking into this matter can grant
divorce. But when only one party files petition on this
ground for termination of marriage, then the court after an
enquiry and on being satisfied that the marriage has been
broken down, can grant divorce even if the other party has a
desire to stay.
There are two modes on the basis of which such a divorce can
be granted:
 The legislature has not laid down a criterion for the
breakdown of marriage. It is up to the courts the courts
to determine whether the marriage has broken down or
not.2The courts try to buttress a marriage before
1
Dr. Paras Diwan, Modern Hindu Law, Allahabad Law Agency, Faridabad
2
www.legalserviceindia.com>break_marriage

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

 dissolving it. It is observed in USSR, East European
countries etc.
 The legislature lays down a criterion for the
breakdown of marriage. The courts have no option
rather than to dissolve the marriage. It is followed in
England, New Zealand etc.

As far as the situation in India is concerned, a back door entry

has been made by this theory. It is not in a codified form in
India.
The Hindu Marriage Act, 1955 provides under Sec 13
provisions that give a way to this theory. These are under
Sec 13 1A:
 when no resumption of habitation has taken place
within a period of 1 year or more after a decree of
judicial separation has been passed
 when no restitution of conjugal rights has taken
place within a period of 1 year or more after a
decree of restitution of conjugal rights has been
passed.
Apart from these, even various judgments have been passed by
SC that supports this theory. For e.g. In Kanchan Devi V
Pramod Kumar case,3 ithe couple had been living separately
since a period of 10 years. All efforts to reconcile them
failed. So the court referred article 142 of the constitution
that stated that the SC can in exercise of its jurisdiction pass
a decree as is necessary for doing complete justice in any
3
www.supremecourtcases.com

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 cause or matter pending before it. It granted divorce based
on this theory. Even in Naveen Kohli V Neelu Kohli case4
divorce was granted on the bases of this theory. Therefore,
now the question of concern is the codification and
inclusion of this theory in Hindu Marriage Act.
ii

HISTORY
Irretrievable breakdown of Marriage Theory has a history that
shows its onset as a theory. As per the Law Commission
report, New Zealand was the first country in the world to
grant divorce on the basis of separation agreement of 3
years or more in 1920. In 1921, first divorce was granted in
New Zealand on the grounds of irretrievable breakdown.
This resulted in the making of irretrievable breakdown as a
theory5. In 1944 USSR adopted it. After this it was
introduced in England in Masariti v Masiriti case where
both the husband and wife accused each other of guilty. In
Australia it was introduced under the marital clause act
1956. After this it was introduced in many other countries
including the ones that were deeply entrenched into fault
theory. These countries used to follow two methods:
I. They used to keep on increasing the grounds for
divorce for e.g. Incompatibility of temperament was
also added as a ground for divorce.
II. They gave wide interpretation to these grounds for e.g.
In Gollins V Gollins case divorce was granted on
4
www.lawoctopus.com
5
https://blog.ipleaders.in

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 grounds of cruelty when a husband was financially
dependent on his wife and did not took up a job.6
So this theory was deficient and not all inclusive and therefore
they adopted this theory. In India fault theory and mutual
consent theory are recognized under Sec. 13 but this theory
is not supported anywhere. The report of 71st law
commission of India states that the objectives of a good
divorce law are:
 To buttress a marriage rather than undermining its
stability
 If a marriage has been broken down irretrievably then
it is better to destroy an empty shell with maximum
fairness and minimum pain.
On the basis of this report a Marriage Law Amendment bill,
1981 had been introduced but it was allowed to lapse as it
had to face opposition from some women’s organizations.
After this a Marriage Law Amendment Bill 2013 was
introduced but it could not be passed by UPA govt.
However NDA government has contemplated to present
this bill on the table.7 But no signs of this bill seeing the
light of the day are there in the near future.

6
Dr. Paras Diwan, Modern Hindu Law, Allahabad Law Agency, Faridabad
7
https://indiankanoon.org

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

INTERNATIONAL
PERSPECTIVE

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The irretrievable breakdown of marriage theory is recognized
by the laws of many countries. In or about nineteen fifties, a
trend towards this theory became discernible in those
countries also which were deeply entrenched in the fault
theory.
Sweden
The Swedish Marriage Law of 1920 provides a very good
illustration of this trend. It was laid down that both the
spouses could present a joint petition for separation decree on

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the ground of “profound and lasting disruption”. Such an
application could be presented by one of the spouses to the
marriage also. In the case of joint application, the court was
required to pass a decree without looking into the matter.

In the modern law, the irretrievable breakdown of marriage

theory has found its way in two modes:
(i) The law lays down that if a marriage has broken down
beyond any possibility of repair then it should be dissolved.
The determination of the question whether in fact a marriage
has broken down or not is left to the courts. In other words,
the legislature does not lay down any criterion on which a
marriage may be deemed to have broken down. It leaves it to
the court to find out whether a marriage has in fact broken
down of not in each individual case. Most of the East
European States also adopt this form of breakdown theory.
(ii) In its second mode, the legislature lays down the
criterion of a marriage and if that is established, the courts
have no option but to dissolve the marriage. For instance, the
petitioner must show that before the presentation of the
petition, he has been living separate from the respondent for a
specific period. This goes to establish that marriage has
broken down beyond all possibilities of repair. The law of
New Zealand and about eighteen States of the U.S.A also
contain a similar ground.

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Another version of this form of breakdown theory is the one
which requires that before a petition is presented, the parties
must have lived apart from each other for some specific
period. The Royal Commission on Marriage and Divorce
recommended that either spouse may be able to obtain divorce
on the ground that they had lived separate from each other for
a period of seven years, but if one of the parties objected to
divorce, divorce could not be granted. In its yet another
version, two periods of separation have been suggested, one
longer and the other shorter. In the latter case, divorce can be
given only if the other party consents to it. In the former,
divorce can be obtained even if the other party withholds its
consent. Following the recommendations of the Law
Commission of England, the Divorce Reform Act, 1969 laid
down that if parties to the marriage have lived apart for a
continuous period of at least two years immediately preceding
the presentation of the petition and the respondent consented
to the decree being granted, decree dissolving the marriage
could be passed. It also recognized separation for a period of
five years or more as a ground for divorce, irrespective of the
fact whether the other party consented or did not consent to
divorce.

This is also the form in which the breakdown theory is

recognized in Australia and Canada though under the law of
the latter, the period of separation is three years. In that event,
the consent or dissent of the other party is immaterial. These
grounds have been hedged with sufficient safeguards for the
parties to the marriage and for the children of the parties.

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CASE LAWS
WILLIAMS V. WILLIAMS
Plaintiff, Alghia Williams, instituted a suit for divorce against
his wife, Heredia Harrell Williams, on the ground of adultery.
He filed another suit against his wife and Yolanda Williams,
seeking the disavowal of the said Yolanda Williams, who was
born during the alleged separation of plaintiff and his wife.
From judgments dismissing both suits, which were
consolidated for trial, plaintiff prosecutes this appeal.

In neither suit does the plaintiff allege the date or place of the
alleged adultery or the name of the co-respondent.

Defendants deny any acts of adultery. Defendant, Heredia

Harrell Williams, avers that there was cohabitation between
the husband and wife until April, 1954, less than nine months
before the birth of the child, Yolanda Williams, on December
30, 1954.

On the trial of the case plaintiff failed to prove any acts of

adultery. He offered evidence to the effect that the defendant,
Heredia Harrell Williams, was seen in the company of other
men in certain night clubs and other public places, and that on
*709 one occasion she was seen entering a hotel with another
man. All of this testimony was denied by the defendant,
Heredia Harrell Williams.

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The District Judge, who saw and heard the witnesses,
concluded that there was no proof of adultery and accordingly
dismissed both suits. Our reading of the record leads us to the
same conclusion.

Prior to trial, plaintiff filed a motion asking that an order be

entered to require the defendants, Heredia Harrell Williams
and Yolanda Williams, to submit to a physical examination
involving blood typing or blood grouping. He contends that he
is entitled to such an order under the provisions of LSA-
Revised Statutes 13:3783, which reads:

"A. In an action in which the mental or physical condition of a

party is in controversy, the court in which the action is
pending or in which the judgment was originally rendered
may order him to submit to a physical or mental examination
by a physician. The order may be made only on motion for
good cause shown and upon notice to the party to be
examined and to all other parties and shall specify the time,
place, manner, conditions, and scope of the examination and
the person or persons by whom it is to be made."
GOLLINS V. GOLLINS
The parties disputed the duty of the wife to continue
cohabitation with her husband after a finding that he was
guilty of cruelty toward her. The House was also asked as to
the nature of ‘unreasonable behaviour’.
Lord Reid said: ‘A judge does and must try to read the minds
of the parties in order to evaluate their conduct. In

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matrimonial cases we are not concerned with the reasonable
man as we are in cases of negligence. We are dealing with this
man and this woman’ and ‘No one has ever attempted to give
a comprehensive definition of cruelty and I do not intend to
try to do so.
Much must depend on the knowledge and intention of the
respondent, on the nature of his (or her) conduct, and on the
character and physical or mental weakness of the spouses, and
probably no general statement is equally applicable in all
cases except the requirement that the party seeking relief must
show actual or probable injury to life, limb or health’.
Lord Pearce said: ‘It is impossible to give a comprehensive
definition of cruelty, but when reprehensible conduct or
departure from normal standards of conjugal kindness causes
injury to health or an apprehension of it, is, I think, cruelty if a
reasonable person, after taking due account of the
temperament and all the other particular circumstances would
considered that the conduct complained of is such that this
spouse should not be called on to endure it’.

CONCEPT OF
DIVORCE
A decree absolute8 of divorce ends9 the legal status of
marriage which has hitherto existed between the parties.

8
All decrees of divorce are, in the first instance, decrees nisi; and the marriage is only finally terminated when
the decree is made absolute.
9
It follows that a decree can only be granted if the court is satisfied that there is a valid marriage to dissolve,
and the burden of proof is on the petitioner: see R. v. Nottingham Country Court, ex prate Byers [1985] 1
W.L.R. 403

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

Thereafter, neither party has the legal rights or owes the legal
duties of a spouse.
The history of Hindu Law goes back to more than 3000 years;
its origin can be traced back from the Vedas. During the
Vedic age (1400 BC- 1000 B C) Hindu Marriage was
considered as indissoluble union and a religious sacrament. In
Vedic times the glorification of women was limited to
literature alone. On one hand Manu stipulates that women
should be honoured and adored by father, brother, husband
and brother-in-law. His ultimate verdict is that where women
are honoured there the t house and no religious rituals yield
any reward10. But on the other hand Manu he says that woman
as only child procreating machine. It was considered to be the
duty of a woman to be most obedient her husband. He was so
much biased and prejudiced against women that he denies her
any property and marital rights11. Even certain verses of the
Vedas proclaim that the mind of a woman is uncontrollable
and there can be no friendship with women for they have
wicked hearts.
Amazingly enough, the western philosophers too were not to
be left behind in their condemnation of women. According to
Aristotle, women is to the man as the slave to the master the
manual to the mental worker, the barbarian to the Greek
Women is an unfinished man left standing on a lower step in
the scale of development. The male is by nature superior and
the female inferior. The institute of marriage may have
evolved out of the need, based on quid pro quo, the role of the
man in this institution being that of a protector especially in

10
G. Buhler. The Laws of Manu, Chapter Ill Verse 54-59 Page 85 verse see, Kulluk Bhatta, Manusmriti Chapter Ill
Verses 54-59, page 91 Motilal Banarasi Das (1983).
11
Ibid, Verses II 213-214k IV, 205-206,V,146-148, VIII, 416, IX, 2-3, 14-20, 45-46,104,IX,36-37.

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view of the woman's procreative powers and of the woman in
rendering unquestionable service. As the institution of
marriage became unquestionably the most vital social
institution the question of her subservience became eternal.
Since marriage is the most important of all social institutions,
the law must decide as to what is meant by marriage.

The benefit of the community is in a married partnership,

which treats each party on an equal basis. Law has come far
from the original approach which treated the wife as a mere
chattel under the control of her husband. Originally marriage
was seen in terms of contract, dissolution in terms of property
and marital offence. But the recognition of the individuality of
married women has been a slow process. What is equally
important as physical freedom is economic independence.
Law must recognize that the unity of married life lies in the
oneness of the husband and wife; however this should not be
used to justify the preservation of the unity of family life at
any cost and to reduce the wife to a subordinate position.
Once the institution of marriage is recognised legally,
divorce must be recognised per se. Yet the Smrti, srutis and
the scriptures prima facie denied the right of divorce.
However, Narada and Parasara recognize the contingent
situations where a woman should be permitted to remarry.
Narada and Parasara mention five circumstances in
which a woman may abandon her husband and take another
when:
1. the husband is missing (for a long time).

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 2. the husband is dead.
3. the husband becomes an ascetic.
4. the husband is fallen (patita or out-caste12).
5. the husband becomes impotent.13
Parasara Smriti is in agreement with Narada Smriti.
According to Parasara a woman may marry again for all the
reasons cited by Narada. The word "Patita" used by Parasara
is of wide significance for this word is capable of several
interpretations. Within it is included a man who is
excommunicated, a man who is suffering from sinful diseases
like leprosy, venereal diseases and a man who is guilty of
crimes like rape, adultery, murder, incest etc.

Kautilya is crystal clear on the concept of divorce but he

excludes the first four types of marriage from the rights of
divorce. The first four superior form of marriage are those that
Kautilya refers to as dharmya, namely Brahma, Prajapatya,
Arsa, Daiva. For the remaining four types i.e. Gandharva,
Asura, Rakshasa and Paisacha he concedes divorce 14.
According to him “a woman may abandon her husband if he
is of bad character, if he is absent for a long time, if he has
become a traitor, or is likely to endanger her life, is an out-
caste and lost his virility”15.A disaffected wife is not to be
granted divorce from the husband who is unwilling nor the
husband from the wife, By mutual disaffection alone a divorce
shall be granted, or if the husband seeks divorce because of
the wife’s offence he shall give her whatever he may have
taken. If the wife seeks divorce because of the husband’s
offence, he shall not give her whatever may have been
received.
12
Narada, XII, 81; Parasara, X, 26-35.
13
Narada Smriti Ch XIII Verse 16,24,97,98 as referred to in Bhagbat N. Deshpanday. “Divorce and Hindu

Smritis”, AIR 1934 Jour 204 See also Krishna Nath Chatterjee, “Hindu Marriage Past and Present”, Tara
publications, Varanasi (1972) p 263.
14
V. K. Gupta, Kautilyan Jurisprudence, Book III. Ch. III Verse 15-19 B.D.Gupta Publication E1987), also
R.P.Kangle, the Kautilya‟s Arthasastra, 3.3.15-19 Part l of Bombay (1969).
15
Kautilya III.

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Very clear concepts emerge from the above discussion of
Kautilya in that he recognises desertion, cruelty, apostasy,
impotency and mutual consent.
Manu, whose precepts are largely anti women, says about
marriage that16 neither by sale nor by repudiation is a wife
released from her husband, such we know the law to be which
the lord of Creatures (Prajapati) made of old 17. Still even in
Manu’s work, there are certain discrepancies, Manu says if
the husband went abroad for some sacred duty,(she) must wait
for him eight years if (he went) to (acquire) learning of fame,
six years; if (he want) for pleasure three years 18. He is silent
on what should the women do after the expiry of the waiting
period even though he admits that there is a possibility of her
becoming corrupt19. Buhler20 opines that she must remain
chaste and support herself by blameless occupation, which by
Manu’s own admission does not appear to be possible. The
only logical consequence could be that Manu may have
implied by his eloquent silence that she should seek another
husband.

LAW COMMISSION
REPORT
In the said Report, it is mentioned that restricting the ground
of divorce to a particular offence or matrimonial disability,
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 such a situation has arisen in which the marriage cannot
16
Kulluka Bhatta, Manu Smriti, Ch. IX Verses 46,101,102 Edited by J.L. Sastri, Motilal Banarasidas (1983).
17
F. Max Muller, The Scared Books of the East. Ch. IX Verse 46
18
Ibid. Ch. IX Verse 76.
19
Ibid. Ch. IX Verse 74.
20
G. Buhler, “The Laws of Manu”, Motilal Banarasi Das (1964).

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

survive. The marriage has all the external appearances of
marriage, but none in reality. As is often put pithily, the
marriage is merely a shell out of which the substance is gone.
In such circumstances, it is stated, there is hardly any utility in
maintaining the marriage as a facade, when the emotional and
other bonds which are of the essence of marriage have
disappeared.
It is also mentioned in the Report that in case the marriage has
ceased to exist in substance and in reality, there is no reason
for denying divorce, then the parties alone can decide whether
their mutual relationship provides the fulfilment which they
seek. Divorce should be seen as a solution and an escape route
out of a difficult situation. Such divorce is unconcerned with
the wrongs of the past, but is concerned with bringing the
parties and the children to terms with the new situation and
developments by working out the most satisfactory basis upon
which they may regulate their relationship in the changed
circumstances.
The amendment may also provide that the court before
granting a decree for divorce on the ground that the marriage
has irretrievably broken down should also examine whether
adequate financial arrangements have been made for the
parties and children.
The report explicitly mentions the difference between mutual
consent and irretrievable breakdown. 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.

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 CURRENT STATUS
The marriage law (amendment) bill 2013 was the latest effort
by the government to bring forward the concept of
irretrievable breakdown of marriage. It was only passed in
Rajya sabha and therefore was not successful.
The highlights of the bill are as follows:
1. In this bill a petition for the dissolution of marriage by a
decree of divorce by either party on the ground of
irretrievable breakdown of marriage can be made.
2. The court hearing a petition shall not hold the marriage
to have broken down unless it is satisfied that the parties
to the marriage have lived apart for a continuous period
of not less than three years. The court may reduce this
period to a lesser duration if it is satisfied that the parties
to the marriage are not in a position to reconcile the
differences.
3. Where the wife is the respondent to a petition for the
dissolution of marriage by a decree of divorce she may
oppose the grant on the ground that the dissolution of the
marriage will result in grave financial hardship to her and
that it would in all circumstances be wrong to dissolve
the marriage.
4. The court shall not pass the decree unless it is satisfied
that adequate provision for the maintenance of children
born out of marriage has been made.

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 IRRETRIEVABLE
BREAKDOWN
THEORY
The basic postulate of breakdown theory is that if a marriage
had broken down without any possibility of repair (or
irretrievably) then it should be dissolved, without looking to
the fault of either party. The breakdown theory holds the view
that what we are concerned with is the fact of breakdown of
marriage; if a marriage has broken down irretrievably, and
then divorce should be granted, as there is no use in retaining
the empty shell. Thus the law recognizes an unhappy situation
and says to the petitioner: If you can satisfy the court that your
marriage has broken down irretrievably, and that you desire to
terminate a situation that has become intolerable to you, then
your marriage shall be dissolved whatever may be the cause21.
A look at the provisions of the Hindu Marriage Act, 1955
reveals that most of the grounds under sub-sections (1) and (2)
of section 13 are based on fault or guilt theory of divorce.
According to this theory a marriage can be dissolved only if
one of the parties to marriage has committed some
matrimonial offence recognized as a ground for divorce. A
21
Dr. Basant Kumar, ―Hindu Law‖, 3rdedn.2011, p. 118-120; B. M. Gandhi, ―Hindu Law‖ 2ndedn.2003,

p.243-263; M.A. Qureshi, ―Muslim Law of Marriage, Divorce and Maintenance‖, 1992, p.185-200; Dr. Paras
Diwan, ―Muslim Law in Modern India‖, 1stedn.1977, p.71-90; Mulla, ―Principles of Mahomedan Law‖,
19thedn.2003, p. 258-275; Tahir Mahmood, ―The Muslim Law of India‖, 3rdedn. 2002, p. 88-110.

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

law of divorce based mainly on fault is inadequate to deal
with a broken marriage. Under the fault theory, guilt has to be
proved; divorce courts are open with concrete instances of
human behaviour as to bring the institution of marriage into
disrepute. Once a marriage has broken down beyond repair, it
would be unrealistic for the law not to take note of that fact, as
it would be harmful to society and injurious to the interest of
the parties. Also under the fault theory the petitioner should
be innocent. That means if it is proved in the court of law that
the other party is also guilty of the faults mentioned in section
13A of Hindu Marriage Act then the petition will be
dismissed. Irretrievable breakdown theory covers up this
lacuna of the fault theory as its main focus is not the fault but
rather the breakdown of marriage itself.
When the marriage is dead both emotionally and physically
and there is no possibility of its revival, the normal course of
action that any court would take would be to dissolve the
marriage unconditionally. But the question that arises is
whether the Supreme Court can grant a decree of divorce on
the ground of irretrievable breakdown of marriage when there
are instances of mental as well as physical cruelty alleged
against each other as in the instant case under comment.

The logic behind granting divorce on breakdown of marriage

is that what could not be mended should be ended22. The guilt
or fault theory of divorce should be replaced, though
gradually, in exceptional cases by breakdown of marriage
theory. This will enable the embattled couple, who failed to
secure conjugal happiness, a fresh start in life. A marriage
could be broken down on account of fault of either party or
both parties or on account of fault of neither party. It may
happen that relations of husband and wife became so strained
22
AnamAbrol, ―Irretrievable Breakdown of Marriage as a Ground for Divorce‖ CULR 1988(12) at 71.

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

that they stopped living with each other. In such a situation, it
is desirable that the relationship is brought to an end by a
decree of divorce on the ground of irretrievable breakdown of
marriage without fixing any responsibility on either party in
the interest of both the parties and also the society. It is good
to give de jure recognition to what exists de facto to enable
them to resettle their life.

GOVERNMENT’S
VIEW POINT
The government of India, Ministry of education, Department
of Social welfare, has expressed the review that making
irretreivable breakdown of marriage a ground for a grant of a
decree of divorce is redundant in the light of the fact that
sufficient grounds covering “irretreivable breakdown of
marriage” exist in the Hindu Marriage Act,1955 and the
marriage laws amendment Act, 1976, for the purpose of
seeking divorced

Government is not supporting the codification of this theory

& inclusion Hindu Marriage Act:-

1. It will make divorce easy. It will allow the spouses or even

to anyone of the spouse to dissolve the marriage put of their
own pleasure.

2. It will allow the guilty spouse to take the advantage of his

own fault by getting separated & dissolving the marriage .
IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53
IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53
 SOCIO-LEGAL
ASPECT OF
IRRETRIEVABLE
BREAKDOWN OF
MARRIAGES
Marriage is, no doubt, an individual relationship, but more
than that it is a social institution having complex social
dimensions. The true happiness that the institution of marriage
can bestow upon a man/woman is found only in the continued
pursuit of harmony by a couple. The indiscreet and unguided
divorce law may destroy all that is good in marriage
institution. Even if we take marriage as a mere contract, it
cannot be said that it is the parties whose interest have to be
considered in divorce proceedings. It is larger social interest
which should be put above the individual interest of parties.
Most of the developed countries of the world have recognised
irretrievable breakdown of marriage as an independent ground
of divorce. The New Zealand Divorce and Matrimonial
Causes Amendment Act 1920 recognises that a separation
period of three years or more would be a ground of divorce.
The Court was given a discretion to either grant or withhold
the divorce. The Swedish Marriage Law of 1920 provides a
very good illustration of this trend. The Australian Family
Law Act 197560 has also recognised irretrievable breakdown
of marriage as a sole ground for dissolution of marriage. The

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

ground shall be held to have been established, and a decree of
dissolution shall be made, if and only if the Court is satisfied
that the parties separated and therefore lived separately and
apart for a continuous period of not less than twelve months
preceding the date of filing of the divorce petition. It is
significant to note that separation can be established
notwithstanding the fact that cohabitation was brought to an
end by the action or conduct of one of the parties, and even
though they continued to reside in the same residence, or that
either party rendered some household services to the other. A
decree of divorce may be refused if the Court feels that there
is a reasonable likelihood of resumption of cohabitation.
In our country owing to various factors, it is becoming
difficult for the disgruntled couples to live together on the
ground of compatibility. Divorce by Mutual Consent (Section
13-B) recognized this reality and a right to apply for divorce
by mutual consent was conferred. There are some couples
who cannot avail the remedy of divorce by mutual consent
because one of the parties tries to bargain or put in a condition
which will eventually result in harassment for the other party.
Giving recognition to divorce by irretrievable break down of
marriage would be next logical step in fine tuning our divorce
laws according to changing societal needs.Today’s wife is not
prepared to live at the mercy of her husband and members of
his family. She is filled with confidence and self-respect. She
is keen to become self-dependant and face the challenges of
life. She would rather live separately than to stay united while
unhappy.
Supreme Court in various decisions while citing 71st   and
217th Law Commission Report has held that marriage is
sharing of happiness and misery which life has to offer.
Living apart is an indication of disruption of the essence of
marriage, and if it continues for a fairly long period, it would
imply irretrievable break down of marriage. If a marriage is
emotionally and practically dead and there was no chance of

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

its revival and continuation then in these circumstances
divorce should be granted on the ground of irretrievable break
down of marriage.
Till date, there is still no systematized law for lost breakdown
of marriage. The Hindu Marriage Act perceives few
justifications for disintegration of marriage in Section 13. Yet
with the change in the social spirit's and in perspective of the
changing nature of marriage in the general public, the Apex
Court of the Country has indicated exceptional concerns over
the matter of making unrecoverable breakdown of marriage as
a ground for separation.
The Supreme Court, with a perspective to do complete justice
and abbreviate anguish of the parties occupied with long-
drawn fight, regulated disintegration of marriage. To be sure,
these were uncommon cases, as the law does not particularly
accommodates the disintegration of marriage on the grounds
other than those given in Hindu Marriage Act, 1955.
Hopeless breakdown of marriage is not a ground for
separation under the Hindu Marriage Act, 1955. Due to the
change of circumstances and for an extensive number of
situations where the relational unions are for all intents and
purpose dead and unless this idea is pressed into legal
procedures, the separation can't be allowed. At last, it is for
the Legislature whether to incorporate unrecoverable
breakdown of marriage as a ground of separation or not.
However Legislature must think about lost breakdown of
marriage as a ground for stipend of separation under the
Hindu Marriage Act, 1955.

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

 WHY
IRRETRIEVABLE
BREAKDOWN ?
The term Irretrievable simply stands for that couple can no
more live together as husband and wife. Both the parties
involved must demonstrate that the marriage has broken down
so seriously that there is no sensible chance of getting back
together. The theoretical basis for including the irretrievable
breakdown of marriage as a ground for divorce is now
commonly known among lawyers and jurists. Restricting the
ground of divorce to a particular offence or matrimonial
disability 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 wish to
divulge it, yet there has arisen a situation in which the
marriage cannot be worked; that is, where the marriage has all
external appearances of marriage but none of the reality. In
such circumstances, there is hardly any utility in maintaining
the marriage as a façade, when the emotional and other
bounds which are 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. Divorce should
be seen as a solution and a way out of a difficult situation

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

 ARGUMENTS
AGAINST
INTRODUCTION OF
IRRETRIEVABLE
BREAKDOWN OF
MARRIAGE
A law of divorce based mainly on fault is inadequate to deal
with a broken marriage. Under the fault theory, guilt has to be
proved; Courts are presented with concrete instances of
human behaviour which bring the institution of marriage into
disrepute. The irretrievable breakdown of marriage is not a
separate ground of divorce by itself. But while scrutinising the
evidence on record to determine whether the grounds on
which divorce is sought are made out, the circumstances can
be taken into consideration.
No divorce can be granted on the ground of irretrievable
breakdown of marriage if the party seeking divorce on this
ground is himself or herself at fault. The decree of divorce on
the ground that the marriage has been irretrievably broken
down can be granted in those cases where both the parties
have leveled such allegations against each other that the
marriage appears to be practically dead and the parties cannot
live togetherThe power of the Court to grant divorce on the

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

ground of irretrievable break down of marriage should be
exercised with much care and caution in
exceptionalcircumstances only in the interest of both the
parties.21 A decree of divorce between the parties cannot be
granted on ground of marriage having been irretrievably
broken down, in the absence of one or more grounds as
contemplated under Section 13 (1).2
The institution of marriage occupies an important place and
plays an important role in the society in general and,
therefore, it would not be appropriate to apply the doctrine of
irretrievable breakdown of marriage as a straitjacket formula
for dissolving the marriage. This aspect has to be considered
in the background of other facts and circumstances of the
case. The sanctity of marriage cannot be left at the whims of
one of the annoying spouses. It is only in extreme
circumstances that the Court may use this ground of divorce.

ARGUMENTS FOR
INTRODUCTION OF
IRRETRIEVABLE
BREAKDOWN OF
MARRIAGE
IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53
There has been a demand from jurists, academicians and
common people for the introduction of Irretrievable
Breakdown of Marriage as a separate ground of divorce.
Before proceeding further it will be good to define what
Irretrievable Breakdown of Marriage means. The twin objects
of marriage are: Maintenance of stable sexual relationship and
providing care and protection to children from the
marriage.35 The marriage can be said to be broken down
when the objects of the marriage cannot be fulfilled.
It was recognised as early as 1972 by the Bombay High
Court36 in the following words: “the enactment of Section 13
(1-A) in 1964 is a legislative recognition of the fact that if
there has been a breakdown of marriage there is no purpose in
keeping the parties tied together”.37 The intention of the
Parliament becomes clear when we look at the statement of
objects and reasons of the amended Bill. The Sections 13 (1-
A) and 13-B of the Hindu Marriage Act 1955 are insufficient
to deal with all the situations pertaining to the matrimonial
remedies. Under the fault grounds though the marriage may
have broken down, the parties may be compelled to live
together. The fault of the accused is to be put under the pigeon
holes provided under the law there are accusations and
counter accusations by both the parties. There is a lot of mud-
slinging by the parties. It also happens that the petitioner may
ultimately be denied relief on the non production of evidence
after a long drawn legal battle. The working of the divorce
laws over a period of few decades reveals that obtaining a
divorce on the basis of matrimonial grounds specified under
the law is not only time consuming and nerve breaking but
also involves a lot of harassment.
Section 13-B also may not be used in certain conditions. It is
contingent on the mutual consent of the parties to the divorce.
Once the marriage has broken down beyond repair, it would
be unrealistic for the law not to take notice of that fact, and it
would be harmful to society and injurious to the interest of the

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

parties. Where there has been a long period of continuous
separation, it may fairly be surmised that the matrimonial
bond is beyond repair. The marriage becomes a fiction,
though supported by a legal tie, by refusing to severe that tie.
The law in such cases does not serve the sanctity of marriage;
on the contrary, it shows scant regard for the feelings and
emotions of the parties. Public interest demands not only that
the married status should, as long as possible and whenever
possible, be maintained, but where a marriage has been
wrecked beyond the hope of salvage, public interest lies in the
recognition of that fact. Since there is no acceptable way in
which a spouse can be compelled to resume life with the
consort, nothing is gained by trying to keep the parties tied
forever to a marriage that in fact has ceased to exist. Human
life has a short span and situations causing misery cannot be
allowed to continue indefinitely. A halt has to be called at
some stage. Law cannot turn a blind eye to such situations,
nor can it decline to give adequate response to the necessities
arising therefrom. 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 separate ground of divorce.

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

SUPREME COURT’S
VIEW POINT
ATTITUDE OF SUPREME COURT

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
then those given in Hindu Marriage Act, 1955.

CASE LAWS

Sanghmitra Ghosh V. Kajal Kumar Ghosh, 2007 2 SCC

page 200
PETITIONER:
Sanghamitra Ghosh

RESPONDENT:
Kajal Kumar Ghosh
IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53
 DATE OF JUDGMENT: 20/11/2006

BENCH:
G.P. MATHUR & DALVEER BHANDARI

The marriage of the petitioner was solemnized on 8.11.1999

with the respondent as per Hindu rites and customs and was
duly registered with the Registrar of Marriage. The parties
have closely known each other before marriage and the
marriage was solemnized according to the wishes of the
petitioner and the respondent.
According to the allegations of the peti tioner, Sanghamitra
Ghosh, she was physically and mentally tortured by the
respondent and his parents. According to her, the degree of
torture increased day by day and eventually on 14.1.2001 she
was driven out of the marital home along with her minor
child. Thereafter, the petitioner moved to her parents and
started with them from 15.1.2001. The respondent never cared
to inquire about the petitioner and her child and has never sent
any money either for the maintenance of the petitioner or her
child.
In these circumstances, she was forced to file a criminal
complaint on 4.8.2002 under Section 498A of the Indian
Penal Code read with Sections 3 & 4 of Dowry Prohibition
Act.
In order to maintain herself and her child, she took up a petty
job in the ICICI bank on a meagre salary. The petitioner now
has been transferred to Bangalore, as a result of which it had
become extremely difficult for her to attend the court
proceedings in West Bengal. It is very expensive and time
consuming. In these circumstances, the petitioner had filed a
transfer petition praying that matrimonial suit no.437 of 2002
titled as "Kajal Kumar Ghosh versus Sanghamitra Ghosh"
filed by the respondent-husband under Section 9 of the Hindu
Marriage Act, 1955 for restitution of conjugal rights and

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

pending in the court of District Judge, Barasat be transferred
to the court of competent jurisdiction at Bangalore.
This Court on 26.3.2004 issued a show-cause notice on the
transfer petition. Reply to the transfer petition was filed by the
respondent.
During the pendency of this petition, the parties have explored
the possibility of an amicable settlement. The matter was
adjourned from time to time to give the parties adequate time
to mutually and amicably settle their differences. The parties,
despite persuasion of the Court, have not been able to sort out
their differences and decided to live separately. According to
the parties, their marriage has been irretrievably broken down
and reconciliation is out of question.
Learned counsel for the parties have prayed that in the
peculiar facts and circumstances of this case, this Court may
grant a decree of divorce by mutual consent. On 15.9.2006,
the parties have jointly filed a petition where they have spelt
out the Terms of Compromise. The Terms of Compromise
read as under: "1. Shri Kajal Ghosh/husband agrees to pay a
sum of Rs.10 lacs (Rupees ten lacs) as full and final
settlement to his wife Smt. Sanghamitra Ghosh. This amount
shall be paid by Shri Kajal Kumar Ghosh in the Court by way
of Demand Draft in favour of the petitioner.
2. Both the parties further agree to let the mother/Smt.
Sanghamitra Ghosh have the permanent custody of the minor
son.
3. However, the father, Kajal Ghosh will be entitled to have
visitation rights to the child at the residence of the petitioner
at a mutually convenient date with prior permission.
4. Both the parties also agree to forthwith withdraw/close all
cases filed against each other and pending before the various
courts in Kolkata and Bangalore.
5. Both the parties undertake that they shall adhere to the
terms of compromise/settlement and that they shall not litigate
in future and have no claim against each other whatsoever in
future."

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

6. Both the parties submit that their marriage has broken down
irretrievably and that there is no possibility of the parties
living together. In these circumstances, both parties would
humbly request this Court in exercise of its powers to grant a
decree of divorce by mutual consent.
7. Both the parties undertake that they shall adhere to the
terms of compromise/settlement and that they shall not litigate
any further and will have no claim against each other
hereafter."
Learned counsel appearing for the parties have prayed that in
the peculiar facts and circumstances and in the interest of
justice, this Court, in exercise of its jurisdiction under Article
142 of the Constitution, may grant a decree of divorce by
mutual consent.

A. Jayachandra V. Aneel Kaur, AIR 2005, SC 534

PETITIONER:
A. Jayachandra

RESPONDENT:
Aneel Kaur
DATE OF JUDGMENT: 02/12/2004

BENCH:
RUMA PAL, ARIJIT PASAYAT & C.K.THAKKER

The appellant (hereinafter referred to as the 'husband') and the

respondent (hereinafter referred to as the 'wife') tied nuptial
knot on 10.10.1978. They were blessed with two children.
Both are majors by now. The marriage was what is commonly
known as "love marriage". Appellant and the respondent were
co-students in the medical college.
They belong to different parts of the country; the appellant-
husband is a Telugu Brahmin while the respondent-wife
belongs to Sikh religion. They were both working in the

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

hospital which was established by the appellant's father Dr. A.
Ram Murthy. Allegedly finding the behaviour of the
respondent-wife obnoxious, humiliating and amounting to
mental cruelty, a notice was given by the appellant-husband
on 5.3.1997 seeking divorce by mutual consent to avoid
unnecessary complications. It was stated therein that they had
not shared the bed and there was no physical contact between
them for over two years.
It was indicted in the notice that the respondent had treated
appellant with cruelty and her conduct amounted to desertion
for two years and was, therefore, neither safe, desirable nor
advisable to continue marital relationship. A response was
given by respondent on 21.3.1997 denying the allegations. It
was suggested that there should be a free and heart to heart
discussion to sort out the problems for a harmonious married
life.
The aforesaid task which admittedly took place did not bring
any result and ultimately a petition under Section 13 of the
Hindu Marriage Act, 1955 (in short the 'Act') was filed before
Family Courts, Hyderabad. It was categorically stated therein
that the behaviour and conduct of the respondent was causing
immense emotional stress, mental agony, and there being no
sharing of the bed and cohabitation for more than two years,
prayer was made to grant decree of divorce for dissolving the
marriage between the parties.
It was specifically stated that the respondent has ill-treated her
husband, abused him in vulgar language in the home and at
the hospital and at other places thereby causing mental agony,
damage and loss personally and professionally and also in the
social circle; allegations were made about his character.
Caveats were filed at different places with a view to forestall
legal action, and create an impression of innocence.
At this juncture it would be relevant to note that after the
petition was filed by the appellant-husband, a suit for
injunction bearing OA No. 89/97 in respect of right to practise
in the hospital was filed by the respondent. The said suit was

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

not objected to by the appellant and the suit was decreed on
20.11.1997. Subsequently, an execution petition was filed
praying for attachment of hospital equipments belonging to
the appellant, and also for civil detention of the appellant for
alleged disobedience of the order of injunction. It was
categorically stated by the respondent during trial that she was
not willing to withdraw the application until divorce case was
finalized.
An application for maintenance was also filed before the
Family Court, Hyderabad, where the matter was pending
claiming a sum of Rs.13,000/- p.m., though admittedly the
respondent is a professional doctor. Subsequently, another suit
was filed for perpetual and mandatory injunction bearing O.S.
No. 43/1999 against the appellant for allowing respondent and
the staff appointed by her use of certain portion of the hospital
and use of the medical instruments.
Evidence was led by the parties. The respondent stated in her
evidence that she had complete faith and trust in her husband
and no doubt about his integrity and character. But at the same
time, she stated that she had advised him on five counts to be
discreet and decent in his behaviour. By judgment dated
18.6.2001 Family Court, Hyderabad, passed decree for
judicial separation with effect from the date of the decree.
Though the Family Court found that unfounded allegations
which caused mental agony were made by the respondent, and
her alleged acts clearly caused mental agony and mental
cruelty, yet keeping in view the welfare of the children instead
of decree for divorce a decree for judicial separation was felt
to be more appropriate. Both the appellant and respondent
challenged the judgment before the High Court.
While the appellant-husband took the stand that a decree for
divorce should have been passed, the respondent-wife
questioned legality of the decree for judicial separation. By
the impugned judgment a Division Bench of the High Court
dismissed the husband's appeal while allowing the wife's
appeal.

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

 It was held that the materials on records were not sufficient to
prove any mental cruelty. The entire evidence led by the
appellant did not even emit smell of cruelty. It was noted that
even if it was a fact that the respondent was using abusive
language and making allegations of adultery with nursing
staff, the husband ought to have examined some witnesses
from the hospital and since it was not done, cruelty was not
established.
Learned counsel for the appellant submitted that the approach
of the High Court is clearly erroneous. It did not examine the
evidence led in detail and upset the findings recorded by the
trial Court after analyzing the evidence in great detail. It was
not even pointed out as to how the evidence led by the
appellant was in any way deficient to prove cruelty. Mere
non-examination of staff of the hospital cannot be a ground to
discard the cogent and credible evidence led by the appellant.
It was further submitted that mental cruelty was clearly
established and in any event the marriage has broken down
irretrievably and on that score alone the decree of divorce
should have been passed.

Sandhya Rani V. Kalyanram Narayan, 1994 2 SCC 588

PETITIONER:
SANDHYA RANI
Vs.
RESPONDENT:
KALYANRAM NARAYANAN
DATE OF JUDGMENT10/01/1994
BENCH:
KULDIP SINGH (J)
YOGESHWAR DAYAL (J)

JUDGMENT:
ORDER
1.We have heard the parties in person. Learned counsel for the

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

parties have also assisted us. It is not disputed that the parties
are living separately for the last more than three years. We
have no doubt in our mind that the marriage between the
parties has irretrievably broken down. There is no chance
whatsoever of their coming together. The parties have made
joint request.-for mutual divorce. The written request by the
parties has been Placed on the record. In order to do complete
justice between the parties, we are inclined to grant decree in
divorce on the following agreed terms:
"1. The respondent Kalyanram Narayanan gives in V.G.P.
Pushpa Nagar which is in the name of the petitioner Sandhya
Rani. The said plot measures 3200 sq. yds.;
2. Two-third share in the said plot shall go to Kartak Narain
son born out ofwedlock. The remaining 1/3 share shall be
owned by the petitioner Sandhya Rani;
3. The title deed in respect of.' the property has been handed
over to the petitioner Sandhya Rani; and
4.the petitioner Sandhya Rani shall not claim any maintenance
past or future, for herself or for her son Kartak Narain from
the respondent."
2.We grant decree for divorce in the above terms. The
Divorce Petition No. O.P. 1019 of 1992 filed by the
respondent (husband) pending before the Principal Family
Court, Madras shall stand disposed in the above terms. No
costs.

Naveen Kohli V. Neelu Kohli AIR 2006 SC 1675

PETITIONER:
Naveen Kohli

RESPONDENT:
Neelu Kohli

DATE OF JUDGMENT: 21/03/2006

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

BENCH:
B.N. AGRAWAL,A.K. MATHUR & DALVEER
BHANDARI

The appellant, Naveen Kohli got married to Neelu Kohli on

20.11.1975. Three sons were born out of the wedlock of the
parties. The appellant constructed three factories with the
intention of providing a separate factory for his three sons. He
also constructed bungalow no.7/36 A for their residence. The
parties got all their three sons admitted and educated in a
public school in Nanital.
According to the appellant, the respondent is bad tempered
and a woman of rude behaviour. After marriage, she started
quarrelling and misbehaving with the appellant and his
parents and ultimately, the appellant was compelled to leave
the parental residence and started to reside in a rented
premises from May 1994. According to the version of the
appellant, the respondent in collusion with her parents got
sufficient business and property transferred in her name.
The appellant alleged that in the month of May 1994, when he
along with the respondent and their children visited Bombay
to attend the golden jubilee marriage anniversary of his
father-in-law, he noticed that the respondent was indulging in
an indecent manner and found her in a compromising position
with one Biswas Rout. Immediately thereafter, the appellant
started living separately from the respondent since May 1994.
The appellant suffered intense physical and mental torture.
According to the appellant, the respondent had withdrawn
Rs.9,50,000/- from the Bank Account of the appellant and
deposited the same in her account.
The appellant alleged that the respondent got a false first
information report registered against him under Sections
420/467/468 and 471 IPC which was registered as Case
No.156 of 1995. According to him, the respondent again got a
case under Sections 323/324 I.P.C. registered in the police
station Panki, Kanpur City and efforts were made to get the

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

appellant arrested.
The appellant filed a Civil Suit No. 1158/1996 against the
respondent. It was also reported that the appellant was
manhandled at the behest of the respondent and an FIR
No.156 of 1996 was filed by the eldest son at the behest of the
respondent against the appellant in police station, Panki
complaining that the appellant had physically beaten her son,
Nitin Kohli.
The respondent in her statement before the Trial Court had
mentioned that she had filed an FIR against the appellant
under Section 420/468 IPC at the Police Station, Kotwali and
the respondent had gone to the extent of filing a caveat in the
High Court in respect of the said criminal case so that the
appellant may not obtain an order from the High Court against
her filing the said FIR.

The respondent in her statement had admitted that she had

opposed the bail of the appellant in the criminal case filed at
the Police Station, Kotwali on the basis of legal advice. In that
very statement she further admitted that after the police had
filed final report in both the criminal cases relating to Police
Station, Kotwali and Police Station, Kohna, she had filed
protest petition in those cases.
This clearly demonstrates the respondent's deep and intense
feeling of revenge. The respondent in her statement had also
admitted that she had filed a complaint in the Women Cell,
Delhi in September 1997. According to the appellant, the
respondent had filed a complaint no.125 of 1998 against the
appellant's lawyer and friend alleging criminal intimidation
which was found to be false.
According to the appellant, the respondent filed a forged
complaint under sections 397/398 of the Companies Act
before the Company Law Board, New Delhi and in the
affidavit of the respondent she stated that the appellant was
immoral, alcoholic, and was having affairs with numerous
girls since marriage. She also called him a criminal, infidel,

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

forger and her manager to denigrate his position from the
proprietor to an employee of her company.
The appellant also mentioned that the respondent filed a false
complaint in Case No.1365 0f 1988 using all kinds of abuses
against the appellant.
On 8.7.1999, the respondent filed a complaint in the
Parliament Street Police Station, New Delhi and made all
efforts to ensure the appellant's arrest with the object of
sending him to jail. The appellant was called to the police
station repeatedly and was interrogated by the police and only
after he gave a written reply and the matter on scrutiny was
found to be false, the appellant with great difficulty was able
to save himself from imprisonment.
On 31.3.1999 the respondent had sent notice for breaking the
Nucleus of the HUF, expressly stating that the Family
Nucleus had been broken with immediate effect and asking
for partition of all the properties and assets of the HUF and
stating that her share should be given to her within 15 days.
According to the appellant, this act of the respondent clearly
broke all relations between the appellant and the respondent
on 31.3.1999.
The appellant had deposited Rs.5 lacs on Court's directions
but that amount was not withdrawn by the respondent. On
22.1.2001 the respondent gave an affidavit before the High
Court and got non-bailable warrants issued against the
appellant. Consequently, the appellant was harassed by the
police and ultimately he got the arrest order stayed by the
High Court. The respondent admitted in her statement that she
got the advertisement published in the English National
Newspaper 'Pioneer'. The advertisement reads as under :
PUBLIC NOTICE Be it known to all that Mr. Naveen Kohli
S/o Mr. Prem Kumar Kohli was working with my
Proprietorship firm as Manager. He has abandoned his job
since May 1996 and has not resumed duties.
He is no more in the employment of the firm. Any Body
dealing with him shall be doing so at his own risk, his

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

authority to represent the firm has been revoked and none
should deliver him orders, cash cheques or drafts payable to
the firm.
NEELU KOHLI Sole Proprietor M/s NITIN RUBBERS 152-
B, Udyog Nagar, Kanpur The respondent in her statement
before the Court did not deny the contents of the affidavit but
merely mentioned that she did not remember whether she
called the appellant a criminal, infidel and a forger in the
affidavit filed before the Company Law Board.
The respondent did not deny her using choicest abuses against
the appellant but merely stated that she did not remember.
The respondent also filed a contempt petition in the Company
Law Board against its order of the Company Law Board dated
25.9.2000 in order to try and get the appellant thrown out of
the little apartment and urged that the appellant be sent to jail.
Before the Family Court, the respondent stated about
solemnization of the marriage with the appellant on
20.11.1975. In her written statement she had denied the fact
that she was either a rude or a quarrelsome lady. The
respondent also denied that she had mentally, physically and
financially harassed and tortured the appellant. She also stated
that she never refused cohabitation with the appellant. She
also denied indulging in any immoral conduct. She averred in
the written statement that the appellant has been immorally
living with a lady named 'Shivanagi'.
The Trial Court stated that many a times efforts have been
made for an amicable settlement, but on the basis of
allegations which have been levelled by both the parties
against each other, there is no cordiality left between the
parties and there is no possibility of their living together.
According to the Trial court, there was no possibility to
reconnect the chain of marital life between the parties. Hence,
the Trial Court found that there is no alternative but to
dissolve the marriage between the parties. The Trial Court
also stated that the respondent had not filed any application
for allowing permanent maintenance and Stridhan but, in the

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

interest of justice, the Trial Court directed the appellant to
deposit Rs.5,00,000/- toward permanent maintenance of the
respondent. The Trial Court also ordered that a decree of
dissolution of marriage shall be effective after depositing the
payment of Rs.5,00,000/- by the appellant. Admittedly, the
appellant had immediately deposited the said amount.
The appellant preferred a Special Leave Petition before this
Court. We have carefully perused the pleadings and
documents on record and heard the learned counsel appearing
for the parties at length.
Both the parties have levelled allegations against each other
for not maintaining the sanctity of marriage and involvement
with another person. According to the respondent, the
appellant is separately living with another woman, 'Shivanagi'.
According to the appellant, the respondent was seen indulging
in an indecent manner and was found in compromising
position with one Biswas Rout. According to the findings of
the Trial Court both the parties failed to prove the allegations
against each other. The High Court has of course reached the
conclusion that the appellant was living with one 'Shivanagi'
for a considerable number of years. The fact of the matter is
that both the parties have been living separately for more than
10 years. Number of cases including criminal complaints have
been filed by the respondent against the appellant and every
effort has been made to harass and torture him and even to put
the appellant behind the bars by the respondent. The appellant
has also filed cases against the respondent.
We would like to examine the facts of the case in the light of
the settled position of law which has been crystallized by a
series of judgments.
In the light of facts and circumstances of this case we would
also like to examine the concept of Irretrievable Breakdown
of Marriage particularly with reference to recently decided
cases.
Impact of Physical and Mental Cruelty in Matrimonial
Matters.

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VIEWPOINT OF SUPREME COURT
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.
The Supreme Court in Ms. Jorden Diengdeh v S.S. Chopra,
has made judicial recommendation for a complete reform of
law of marriage by introducing inter alia irretrievable
breakdown of marriage as a ground for divorce.

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

 MERIT OF
IRRETRIEVABLE
BREAKDOWN
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 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
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.

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

 DEMERITS OF
IRRETRIEVABLE
BREAKDOWN
The Law Commission of India in Chapter 4 of the 71 st
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 advantages
of his own fault by getting separated and dissolving
the marriage.

IRRETRIEVABLE BREAKDOWN OF MARRIAGE Page 53

 CONCLUSION
In a nutshell , it can be concluded from the above discussion
that sick marital relations indeed pose a problem for the
concerned spouses. Therefore, there is no justification tying
the parties to the bond of marriage. 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 lack any substance irretrievably is better off
broken.   

Justice Krishna Iyer had also opined that:

" Daily trivial differences get dissolved in the course of time
and may be treated as the teething trouble of early
matrimonial adjustment while the stream of life lived in
married mutuality may wash away small pebbles, what is to
happen if intransigent incompatibility of minds breaks up the
flow of stream? In such a situation we have the breakdown of
marriage itself and the only course open for law is to
recognise what is a fact and accord a divorce."

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ii