IRRETRIEVABLE BREAKDOWN OF

MARRIAGE: A GOOD GROUND

FOR DIVORCE

Source : LawEscort

This article has been authored by Savita Gangwar, a third-year law

student at Army Law Institute, Mohali.

Introduction

Marriage being regarded as a sacrament under Hindu Law is also

believed to be made in heaven. This leaves one with the question:
does the sacramental nature make it eternal or indissoluble, or do we
have a choice to quit in between?

A successful marriage is not defined by merely living together for

years but living together happily. There have been umpteen cases
where the couple puts an effort to grow together yet develops
animosity, ultimately leads to separation.

Earlier the grounds for divorce were too scanty as divorce was
considered, a taboo and was not acknowledged. In considerable
cases, divorce was not an option for women and they were
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 compelled to spend their lives in the vicinity of husband and in-laws
only. Even if they were given divorce, their socio-economic position
ostracized them from the society. However, their position in the
current society has improved and that’s why divorce is now feasible
for them.

Although, up to certain limits, enactment of Hindu Marriage Act,

1955 (‘HMA’) has solved the problem. In relation to the inclusion of
‘Irretrievable Breakdown of Marriage’ as a ground for divorce,
opponents argue that ‘divorce by mutual consent’ has already been
inserted in 1976 which covers maximum cases. It is important to
accept that divorce by mutual consent requires the consent of both
the parties and if either of them does not accede, the divorce won’t
be granted, as held in Savitri Pandey v. Prem Chandra.

Irretrievable Breakdown of Marriage

If in certain circumstances, it is known that there are no prospects of

advancement of the marriage, continuing to drag the marriage
legally acts as cruelty to the spouse. It is only under the Hindu
Personal Laws where such severe restrictions related to divorce
exist. Muslim, Parsee and Christian marriage laws allow divorce more
easily. Grounds for divorce are laid down under Section 13 and
13(1A) of Hindu Marriage Act 1955. Furthermore, Section 27 and
Section 28 of Special Marriage Act, 1954 also hold grounds in case
of solemnized marriage. However, these legislations do not contain
irretrievable breakdown of marriage as a ground for divorce.

If the marriage has lost the actual substance and sanctity, it is prima
facie that the marriage has broken down irretrievably. Historically,
divorce grounds are based upon two theories, mentioned in HMA,
1955- (1) Fault Theory (2) Mutual Consent Theory.

Earlier, in Ms Jorden Diengdeh v S. S Chopra, the Supreme Court has

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 emphasized the fact that irretrievable breakdown and mutual
consent should be taken into consideration in every case of divorce
which was also supported in Naveen Kohli v Neelu Kohli, where the
Supreme Court had the opinion that the Central Government should
strongly consider amending the HMA and recognizing the principle
of irretrievable breakdown of marriage as a ground for divorce.

Historical Aspect

The concept originated in New Zealand in 1921 through the historical

decision in Lodder v. Lodder[i], embracing irretrievable breakdown
as a ground for divorce. If the parties reside in separation for more
than 3 years, it is assumed that the marriage has irretrievably broken
down.

The House of Lords in Blunt v Blunt accepted the fact that stretching
legally a broken marriage to the extent that it becomes burdensome,
neither benefits the couple nor serves the public interest.

On May 22, 1969, the General Assembly of the Church of Scotland

suggested that there should be a substitution of irretrievable
breakdown in place of matrimonial offences and exclaimed that
continuous separation of at least 2 years consequent upon a
decision of at least one of the parties of not living together should
act as a sole evidence of breakdown of marriage.

In India, incorporation of such ground for divorce in Hindu Marriage

Act, 1955 or Special Marriage Act, 1954 has not yet been made but it
has been strongly suggested by 71st Law Commission Report, 217th
Law Commission Report and also a Bill was presented in this regard
in the Parliament titled The Marriage Laws (Amendment) Bill, 2010.

Current Position and Status in India

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 With regards to the current status of irretrievable breakdown of
marriage in India, it can be said that the legislature has failed to
include such breakdown as a ground for divorce, though Supreme
Court in various cases like Bhagat v Bhagat, Krishna Banerjee v. B.
Bandopadhyay has analyzed the importance of such breakdown as a
ground. In Kanchan Devi v Pramod Kumar Mittal and a very recent
case of R. Srinivas Kumar v R Shametha Supreme Court has well
utilized its power under Article 142 of Indian constitution and has
dissolved considerable marriages on the same ground.

Also Marriage Laws (Amendment) Bill, 2010 looks for making it as a

ground for divorce especially protecting women. As it entitles that
wife can reject the plea of divorce filed by husband but husband
can’t, if the wife seeks for divorce under the said ground.

Legal Attitude

Irretrievably broken-down marriage becomes a fiction though

supported by a legal tie and when court refuses to sever that tie it is
unfair on their part, stretching the hopeless marriage to face more
atrocity. There have been innumerable cases where courts have
denied the grant of divorce decree solely on the basis of such
breakdown and presented a rationale of not proving the fault in the
case, like Smita Dilip Rane v. Dilip Dattaram Rane and Tapan Kumar
Chakraborty v. Smt. Jyotsna Chakraborty facsimile so.

In Samar Ghosh v. Jaya Ghosh, Supreme Court referred to the 71st

Report of the Law Commission of India and in Sanghamitra Singh v
Kailash Chandra Singh it was held that whether the husband has
clandestinely remarried or not, neither of the spouses now wants to
continue the marriage so it has broken down irretrievably and
granted the divorce.

Recently, in R. Srinivas Kumar v R Shametha used its power under

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 Article 142 of the Constitution for the dissolution of marriage on the
ground of irretrievable breakdown of marriage and exclaimed that
despite the wife wants to continue marriage, the fact of them living in
separation for more than 22 years has left with no hope of
reconciliation.

A Good Ground of Divorce

Irretrievable breakdown of marriage is considered as a good ground

of divorce in various countries, also the full bench of Delhi High
Court in Ram Kali v Gopal Das took note on the modern trend and
observed, it is 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 chances of reconciliation.

Lacunae

Divorce so granted can sometimes, if not taken care of, deteriorate

the circumstances. The importance and sanctity of marriage would
be hampered to a great extent as it would be in the hands of one
party to provide for the breakdown, which might shoot the divorce
rates exorbitantly. Women in such cases are prone to get affected
more. Also, it might allow the guilty spouse to dissolve the marriage
for his/ her own pleasure taking the advantage of his/ her own fault
leaving other as a victim.

Conclusion and Suggestions

Court shows the scant regard for the feelings and emotions of the
parties by not considering the broken marriage. Law cannot turn a
blind eye to miserable situations where one of the spouses finds it
laborious to continue. As is often put pithily, the marriage is merely a
shell out of which the substance is gone.[ii] Such a course would
encourage continuous bickering, perpetual bitterness, and may often
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 leads to immorality.[iii] No divorce can be granted when the party
being at fault seeks for divorce but can be granted where the parties
have levelled such allegations against each other that marriage
appears to be practically dead.

The Hindu Law should be liberalized and should adopt provisions in

conformity with other countries. Irretrievable breakdown of Marriage
should hence, be made a ground for divorce when the parties are
living separately for a continuous period of at least 3 years or when
none of them, being living in separation has filed a petition for
restitution of conjugal rights or any one of the spouses has been
tortured with mental or physical cruelty or in cases where the court
infers that all possible means of reconciliation have been tried out
but have failed.

While giving divorce on the said ground, the courts should keep in
mind a few safeguards. Firstly, where a marriage is worth preserving,
it ought to be preserved and secondly, while providing divorce on the
said ground the persons who are likely to suffer by that like children
must be taken care of.

Since judiciary is the last hope for its citizens, it should not shut the
doors and should acknowledge that: -

“No reason to stay is a good reason to go”

[i] Lodder v. Lodder, (1921) New Zealand Law Reports 876 quoted in
Jeffries.
[ii] 71st Law Commission Report, pg. 12, cl. 3.2.
[iii] Ibid.
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