Irretrievable Breakdown of Marriage  

By Akash Mishra, WBNUJS

Editor’s Note: This paper discusses the evolution of irretrievable breakdown of marriage as a ground for divorce. Irretrievable breakdown of marriage comes under the breakdown theory where the marriage is supposed to have reached a point wherein there is complete breakdown of the institution with no scope for retrieval of that previously existing bond. In India, the first major proponent of this concept was through the 71st Report of the Law Commission of India (1978) which dealt with the question if the granting of divorce should be based on fault theory or on breakdown theory. There has been a gradual shift from a fault theory to a no fault theory. Even though irretrievable breakdown of marriage has not been stated under the Hindu Marriage Act, 1955 as a ground for divorce, there have been many judgments which gave decisions based on the principle.

INTRODUCTION

Marriage according to the long-established norms in India was regarded as completely sacramental. This holy union was considered to be indissoluble and undying in nature. This traditional view, however, has been through a sea of change with the enactment of the Hindu Marriage Act, 1955 owing to the neoteric concepts of divorce and judicial separation being recognized under the law. This Act has been through various changes while accommodating the different requirements of the society and it in this scope that the concept of Irretrievable breakdown of marriage is to be understood.

Even though divorce by mutual consent was introduced through an amendment in 1976, there still existed issues wherein both parties suffered from a marriage which lacked any substance and had no hope for re-conciliation but one party continued the long legal procedure and did not let the divorce take place. So, the concept of irretrievable breakdown of marriage was pitched in. Irretrievable breakdown of marriage comes under the breakdown theory where the marriage is supposed to have reached a point wherein there is complete breakdown of the institution with no scope for retrieval of that previously existing bond. The irreparable nature of the situation gives rise to the alternative of providing the couple an option to leave each other’s company without bitterness and distress.[1]

Justice V.R Krishna Iyer had famously explained this concept:

“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 recognize what is a fact and accord a divorce”.[2]

EVOLUTION

In context of the common law countries, progress with regard to this aspect started from The (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920 wherein a separation clause for a span of three or more years was introduced as a ground to file a petition for divorce with the judgment being in the hands of the courts to understand the breakdown principle and decide the case for divorce.[3]

In India, the first major proponent of this concept was through the 71st Report of the Law Commission of India (1978) which dealt with the question if the granting of divorce should be based on fault theory or on breakdown theory. It emphasized that restricting divorce grounds based on faults shall cause injustice to those couples who are stuck in situations where neither party have any fault with the marriage having become a merely an external appearance without any efficacy.

Salmond J. in Lodder v. Ladder[4] enunciated this concept by stating that “when a matrimonial tie has ceased to exist de facto for that period it should cease to exist de jure as well” because the essential purposes of the marital bond stand frustrated. The 1981 Bill for Irretrievable breakdown of marriage as a ground did not get through as it was considered that such a bill shall encourage devious husbands who shall desert their spouses under the aegis of an irretrievable breakdown.

SHIFT TO NO FAULT THEORY

There has been a gradual shift from a fault theory to a no fault theory. Previously, the provision was that after obtaining an order for restitution of conjugal rights, the party which wronged could not obtain divorce rather only the person who was wronged could move the court for a divorce order if the restitution does not get executed. The Amendment of 1976 helped introduce the concept of irretrievable breakdown as it was understood that making the right available only to one party when the marriage is barely a form with no substance underneath.

In the case of Dastane v. Dastane[5], the couple were involved in judicial proceedings for over a decade with the petition of the husband for judicial separation being dismissed. This case drew the point for the concept of irretrievable breakdown as a necessity. In Varalakshmi v. N.V Hanumanth Rao[6], the husband having obtained a decree for judicial separation, was not allowing the wife to recommence co-habitation. After completion of the specified period, the husband petitioned for a decree of divorce. So, here it was argued that the husband cannot be granted divorce here because that shall lead to his gaining advantage out of his own fault. But the divorce was granted because co-habitation has to be through mutual agreement.[7]

SCOPE OF THE CONCEPT

Even though irretrievable breakdown of marriage has not been stated under Section 13 of the Hindu Marriage Act, 1955 as a ground for divorce, there have been many judgments which gave decisions based on the principle. To further understand the scope of the model, few landmark case laws have been discussed :[8]

Jayachandra v. Aneel Kaur[9]The issue involved here was if in the event of a long drawn litigation process, a couple can claim divorce to shorten the agony due to the lengthy procedure through the model of irretrievable breakdown of marriage?

The husband in the case complained about the “obnoxious and humiliating” behavior of the wife and seeked divorce by mutual consent under section 13 of the Hindu Marriage Act, 1955 so as to avoid unnecessary complications.

However, the court went through the evidence and provided a decree for judicial separation. Supreme Court in the appeal rather decided that there did exist cruelty and it deduced from the facts & circumstances that the marriage had irretrievably broken down. The court further stated that it knows that this concept can be used to provide a decree for marriage but it continued with a view to complete justice and shorten the mental agony of the parties.

It was explained in the case of Ajay Sayajirao v. Rajashree Ajay Desai[10] that when there is no alleged fault ground proved, relief cannot be granted on ground of irretrievable breakdown of marriage. However, a differing stance was taken in the case of Dinesh Kumar Mandal v. Mina Devi[11] where it was held that a couple living separately for many years justify the fact that the marriage is broken beyond repair and even though the alleged ground of adultery was not proven here, divorce was granted.[12]

Another landmark case relating to the concept is of Kanchan Devi v. Promod Kumar[13] wherein the parties were staying separately for over a period of ten years and every attempt at any reconciliation turned futile.[14] In its order, the court invoked its jurisdiction under Article 142 of the Constitution which has the provision to provide “any decree or order as is necessary for doing complete justice in any case or matter pending before it[15].

The memorandum of settlement clearly explained that this was a case of divorce by mutual agreement but the observations of the court clearly reinforced the fact that irretrievable breakdown of marriage as a model to claim divorce has seeped into the decisions of the courts.

The landmark judgments of Savitri Pandey v. Prem Chandra Pandey[16] and Naveen kohli v. Neelu Kohli[17]also reiterated the need for inclusion of irretrievable breakdown of marriage as a ground for divorce.[18]

CURRENT LAW

The Marriage Laws(Amendment) Bill, 2010 was approved by the parliament in March, 2012 with the introduction of the Section 13C, 13D and 13E. Section 13C(1) states the usage of irretrievable breakdown of marriage as a new ground for divorce alongside Section 13C(2) which requires the parties to have been living separately for not less than a period of 3 years before the parties filed the petition.[19]

The statement of objects and reasons of the Amendment bill[20] also state that:

“The rights to apply for divorce on the ground that co-habitation has not been resumed for  space of 2 years or more, from date of decree for restitution of conjugal rights, should be available to both, husband and wife, as in such cases, it is clear that marriage had proved a complete failure. Therefore, there is no justification tying the parties to the bond of marriage”

Thus, finally Irretrievable breakdown of Marriage has finally been inducted as a ground for divorce in the Indian legal context. Four decades after the first time the concept being brought to the fore by the 71st Law Commission Report and after numerous judgments re-iterating its necessity, this concept has been introduced to understand the changing needs of the society. 

CONCLUSION

Divorce in India is either provided through mutual consent or through marital wrongs. However, with the introduction of this concept of irretrievable breakdown, we have moved towards the model of no fault theory. This amendment provides scope for individuals to take advantage of their own wrong as even the erring party can cite this ground for a divorce petition. Thus, it might foster divorces rates with women being a victim to scrupulous spouses who can use the amendment to their advantage.

However, it must be noted that irretrievable breakdown of marriage is a concept that is necessary to be recognized judicially. This concept surely leads to divorce being provided by the courts more easily but it also necessary to underline the fact that according to the provisions, such divorces have to be granted only after a thorough understanding of the circumstances by the courts and an assessment if the marriage is actually broken beyond repair. 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 lacks any substance irretrievably is better off broken. Since decades, there have been numerous judgments that re-iterated the need for this concept and having finally been enacted, this amendment comes as a blessing for numerous couples stuck in a broken marriage without any recourse.

Edited by Hariharan Kumar

[1] Kusum, Family Law Lectures (2nd Edn., Lexis Nexis Butterworths, 2007)

[2] Paras Diwan, Marriage and Divorce Law Reforms [ The Marriage Laws (Amendment) Act, 1976] (1977) 2 SCC (Jour) 1

[3] 71st Report of the Law Commission of India (1978)

[4] 1921 New Zealand Law Reports 786

[5] AIR 1975 SC 1534

[6] 1978 HLR 246

[7] Kusum, Family Law Lectures (2nd Edn., Lexis Nexis Butterworths, 2007)

[8] Ibid

[9] 2005 (2) SCC 22

[10] AIR 2005 Bom 278

[11] AIR 2005 Jhar 77

[12] ibid

[13] AIR 1996 SC 3192

[14] Paras Diwan, Family Law (2nd Edn. Orient Publishing Company, 2002)

[15] Kanchan Devi v. Promod Kumar AIR 1996 SC 3192

[16]AIR 2002 SC 591

[17] AIR 2006 SC 1675

[18] Kusum, Family Law Lectures (2nd Edn., Lexis Nexis Butterworths, 2007)

[19] Marriage Laws( Amendment) Bill, 2010, Vide Gazette of India, Part 2, pg 86.

[20] ibid

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