Irretrievable Breakdown of Marriage

This means the couple can no longer live together as man and wife. Both partners, and one
partner, must prove to the court that the marriage broke down so badly that there is no
reasonable chance of getting back together.

The Hindu Marriage Act recognize few grounds for dissolution of marriage in Section 13. But
with the change in the social mores and in view of the changing nature of marriage in the
society, the supreme court has shown special concern over the matter of making the
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.

Merits of the theory

The only merit of the theory as has been propounded by the jurists is that a marriage, which in
practice is considered to be sacramental institution, should be based on ground on which a
sound marriage is based that is tolerance, adjustment and respecting each other. If any of the
party to marriage is not ready to live with the other party the relationship will not be a happy
relationship. Stretching such a relationship will do no good, rather will develop hatred and
frustration among the parties for each other. Therefore to protect the sanctity of marriage, to
reduce the number of unhappy marriages and to prevent from getting wasted the precious years
of life of the spouses, it is necessary to dissolve such a marriage.

However here the point to be noted is that the parties to marriage do not get separated out of
their own free volition but on the basis of court coming to conclusion that marriage is beyond
repair or cannot be saved by any means.

Status under Indian Law

Irretrievable breakdown of marriage is not a special ground for divorce under Hindu Marriage
Act, 1955 unlike the other three theories of divorce. 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-

(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

(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.
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.

Grounds of mutual consent (section 13B)

The requirements which have to be met to seek divorce under Hindu Marriage Act are as follows:

I. The parties have been living separately for a period of at least one year
II. They have not been able to live together, and
III. They have mutually agreed that marriage should be resolved.

The first requirement is that the parties should be living separately for a period of at least one year
before filing the divorce petition. It is necessary to understand what does the term “living separately’
means.

It is not necessary that parties should be living under separate roofs. They might be living in the same
house but not as husband and wife.'' "They have not been able to live together" means that there is a
state of the complete breakdown of the marriage.
Where husband and wife were living separate for a period of more than one year and not able to live
together and they were mutually agreeing to dissolve the marriage, it was held all ingredients of the
section are fulfilled.

After the presentation of the petition, the parties are required to wait for six months though not for more
than eighteen months, and then to move a motion in the court that divorce be granted. However in a
petition filed by Wife on ground of cruelty cannot be converted into a petition of mutual consent by
treating answers given by husband on cross-examination as three ingredients of Section 13B need to be
fulfilled.

The parties are also free to withdraw the petition at any time. If no motion is moved within eighteen
months, the petition shall stand dismissed. The period of 18 months is an upper limit for the withdrawal
of the petition.