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
THEORIES OF DIVORCE not in reality.The dissolution of the
relationship is assumed to have occurred de
IRRETRIEVABLE facto. The fact that married couples have
BREAKDOWN OF THE been living apart for a reasonable amount
MARRIAGE of time (say two or 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
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
03 other reason.
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 husbands to terminate a attractive and easy option, the
social marriage relationship at introduction of objective factors to
stigma, will determine breakdown will ensure that
especially to this ground is not opted for on whim or
the wife 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 It should be noted that no court
in the country except the
for divorce. Thus the common
feature is the condition of Supreme Court can grant
divorce on the ground of
living separately for a
reasonably longer period of irretrievable breakdown of
matrimonial relationship.
time.

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