WHAT IS IRRETRIEVABLE BREAKDOWN

THEORY OF MARRIAGE

NAME : AISHWARYA S. NAIR

CLASS : BA LLB [2A]

BATCH : 2020-2025

ENROLLMENT NO. : 757

MOBILE NO. : 9315573120

EMAIL : aishwaryasnair@icloud.com
SUBMITTED TO : Mr. Gunjan Agrahari
SUBMISSION DATE : 5 Nov 2021
 TABLE OF CONTENTS

LEGAL STATUS OF THE

01 INTRODUCTION 06
THEORY

HISTORY OF THEORY OF
02 IRRETRIEVABLE BREAKDOWN OF 07 END
MARRIAGE

CURRENT SCENARIO IN
03
INDIA

EVIDENCE COURT WILL ACCEPT

04 AS PROOF OF IRRETRIEVABLE
BREAKDOWN:

REASONS FOR NOT

05
INTRODUCING THE THEORY
 INTRODUCTION
The Hindu Marriage Act, 1955 came into existence, eight years after the independence of the country. Section 13 of the Hindu Marriage
Act deals with the grounds on which the parties can seek a decree of divorce from a competent court having jurisdiction to entertain such
petition. In the literal sense "divorce" means a legal separation of two persons of the opposite sex who desire to respect and honor each
other.
IRRETRIEVABLE BREAKDOWN
OF THE MARRIAGE

If either of these is hindered for any reason,

and the matrimonial relationship between
the spouses deteriorates to the point where
FAULT THEORY it is entirely irreparable, that is, a point
where neither spouse can live peacefully
with the other and reap the benefits of a
matrimonial relationship, it is best to
dissolve the marriage because there is no
CONSENT THEORY point in prolonging such a dead relationship
which exists only in name and not in
THEORIES OF DIVORCE reality.The dissolution of the relationship is
IRRETRIEVABLE assumed to have occurred de facto. The fact
that married couples have been living apart
BREAKDOWN OF THE for a reasonable amount of time (say two or
MARRIAGE three years), for any reasonable reason
(such as cruelty, adultery, or desertion) or
even without a reasonable reason (which
demonstrates the parties’ or even one of the
parties’ unwillingness to live together), and
their efforts to reunite failed, the
relationship will be presumed to be dead.
 HISTORY OF THEORY OF IRRETRIEVABLE
BREAKDOWN OF MARRIAGE

The concept of Irretrievable breakdown of

marriage was for the first time introduced in In 2009 once again, the Law Commission of
New Zealand where it was recognized that it India has, vide is 217th Report, recommended the
needn’t be necessary for there to be some incorporation of irretrievable breakdown of the
fault or other for a spouse to want to opt out marriage as another ground for divorce. Pursuant
of a marriage and hence the law has to to that and Apex court recommendations, another
recognize and cater to that requirement. The bill was introduced- The Marriage Laws
first divorce in the ground of Irretrievable (Amendment) Bill 2010 and then the Marriage
breakdown of marriage was granted by the Laws (Amendment) Bill, 2013.
court in New Zealand in 1921.

From the Indian context, The Law Commission of

India, in its seventy-first report recommended the
introduction of irretrievable breakdown of marriage as
a ground for divorce. Then in 1981, a bill was
introduced providing for irretrievable breakdown of
marriage as a ground for dissolution of the marriage
but it did not get through as some groups felt that
unscrupulous husbands would desert their wives and
take advantage of this provision
Under Hindu Law, marriage is regarded as sacrament
which is eternal and indissoluble. But there is also a
concept of divorce in Hindu law. The term ‘divorce’
is the legal cessation of a matrimonial bond. Things
have, however changed now and marriage is no
longer viewed as an indissoluble union. In view of
the needs of changing times, divorce laws has been
substantially liberalized. The Hindu Marriage Act,
1955 revolutionised the matrimonial laws and
provided for divorce on several grounds. Initially the
grounds were based on fault on the part of the
respondent.
The Supreme Court in its various landmark
cases have shown its concern of making
irretrievable breakdown of marriage as a
ground for divorce. But, ultimately it is for
the legislature to decide 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 to grant divorce under
the Hindu Marriage Act, 1955.
So, when a “Wedlock becomes deadlock” the court
analyses the case and if the circumstances goes to such
an extent that the marriage is beyond repair then
accordingly the court grant dissolution of marriage
based on the concept of breakdown theory. However
irretrievable breakdown of marriage has not been
inducted as a ground for divorce in the Indian legal
context but if in the future if it is incorporated in law
then it should be hedged with sufficient safeguards
and applied with utmost discretion.

Later the theory of breakdown was further advanced
by amendment in s. 13(1) clause (viii) and (ix) in
1964 and in 1976 divorce by mutual consent was
introduced.Thus over the years, the Indian
legislature has attempted to introduce irretrievable
breakdown of marriage as a ground for divorce
according to the changing needs of the society.
However discussions and deliberations for so many
years have not led to any consensus on whether
irretrievable breakdown of marriage as a ground for
divorce should be introduced or not.
Marriage Laws (Amendment) Bill, 2010 seeks to make
Irretrievable breakdown of marriage as a ground for divorce.
The amendment which was included in this bill provided
advantage to the women. The amendments states that a wife can
oppose a husband’s plea for a divorce under the “Irretrievable
breakdown of marriage” clause but the husband will have no
such right to oppose if the wife moves the court on the same
ground. On 26th August 2013 the bill was passed by the Rajya
Sabha however it was not taken up for discussion in Lok Sabha.

KIND OF EVIDENCE THE COURT

WILL ACCEPT AS PROOF OF
IRRETRIEVABLE BREAKDOWN:

04
01 One partner deserted the other
The couple has not lived or abused the other, for
together like husband and wife example the husband keeps
for a period of time. assaulting the wife or one
partner is an alcoholic or a
drug addict.

02
One partner had sexual
intercourse with somebody
else and because of this the
05
other partner finds it The partners no longer love
impossible to continue living each other - they may be too
together as husband and wife. different, or they married when
they were too young. - One of
the partners finds it impossible
to live together as husband and
wife for any other reason.
03
One partner is in prison after being declared
an 'habitual criminal'. (This means he or she
keeps committing crimes, and because of
this was sentenced to 10-15 years in prison.)
 REASONS FOR NOT INTRODUCING
IRRETRIEVABLE BREAKDOWN OF MARRIAGE AS A
GROUND FOR DIVORCE

However, except in the Islamic law, Irretrievable

breakdown of marriage is not found in any legislation
as a specific ground for divorce. There are five central This ground could be
concerns about bringing the ground of irretrievable misused by an errant
breakdown of marriage into the divorce statute. These husband
are:

That subjective elements

exist in the understanding
of irretrievability and
breakdown.

Marriage relationship is
accorded sanctity in our
society, which would be
treated with levity if this
ground of divorce is
available
Divorce This ground permits While this ground may seem an
carries social husbands to terminate a attractive and easy option, the
stigma, marriage relationship at will introduction of objective factors to
especially to determine breakdown will ensure that
the wife this ground is not opted for on whim or
an impulse.

LEGAL STATUS OF IRRETRIEVABLE

BREAKDOWN OF MARRIAGE AS A GROUND FOR
DIVORCE
i) 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 in a proceeding
to which they were parties; or
In either case if the parties are
not able to resume cohabitation
for one year, any of the party to
marriage can obtain a decree for
divorce. Thus the common
feature is the condition of living
separately for a reasonably
longer period of time.
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.

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 may also present a petition for
the dissolution of the marriage by a
decree of divorce on the ground-
(ii) 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 conjugal
rights in a proceeding to which they
were parties.
The Supreme Court has exercised
its power under Article 142 of the
Constitution even in the case of
matrimonial matters that has been
pending for long time in the
Tribunal/High Court.

THANK YOU