INTRODUCTION
Irretivable breakdown of marriage is undoubtedly supported by the history of marriage as viewed via its laws. At different points in time, marriage has signified different things. It has changed from being a patriarchal institution to a more equal relationship founded on equality and freedom, and from being a religiously revered institution to a contractual legal one. Marriage has been interpreted in a variety of ways over time.[1] Since, there are problems in every phase of life and marriage is also one of the phases of the life, it can also stand at a position where a re-consideration is required.
Therefore, the institution such as divorce is required and Irretrievable Marriage of Breakdown is one such ground though not mentioned in the legislation pertaining to matrimonial affairs. This ground has evolved through a number of judicial precedents as discussed hereinafter. According to Black’s law Dictionary, “Irretrievable breakdown of marriage as a no-fault ground for divorce means a condition in which either or both spouses are unable or unwilling to cohabit as husband and wife and for which there are no prospects for reconciliation. In some jurisdictions, it is the sole ground for so-called no-fault divorce.”[2]
A marriage that is irretrievably broken is one that cannot be saved. In this case, there is no chance of a successful marriage, since the parties have been living apart for several years and/or are no longer willing or able to live together. Many nations have started recognizing irretrievable marital disintegration as a distinct basis for divorce. In order to understand the concept of irretrievable marriage of breakdown, a short glance at concept of marriage and divorce is a required ado.
WHAT IS MARRIAGE?
In India, it is believed that marriages are built in paradise, but because modern marriages are fragile and complicated, the institution of divorce is just as significant as marriage itself. Hindus considered marriage to be sacramental and one of the fundamental ‘Sanskara’ in ancient times. It is seen as a holy and lasting relationship. Given that the spouses’ marital bonds were formed rather than based on a contract, Hindu marriage was regarded as an absolute and necessary sacrament. A man and woman decide to live together and support one another within the bounds of the set responsibilities and duties as a consequence of the legally binding agreement between a bride and bridegroom. Although under Muslim Law, procreation and the legalization of children between a man and a woman are both possible through marriage and it is a legal contract.[3] According to Manu, a woman may not be released by her husband by sale or abandonment, which means that the marriage cannot be ended in any way.[4] However, over the past several decades, there has been a significant shift in judicial and legislative perspectives on marital laws, which has resulted in a significant change to divorce laws.
DIVORCE: ENCOMPASSING THEORIES
The action or an instance of legally dissolving a marriage, is divorce.[5] Divorce comes from the Latin word ‘divortium’ which means separation. Traditionally, marriage was regarded as a holy and unbreakable relationship in Hindu Dharma Shastra. There are some theories of divorce which have been crisply illustrated below:
Indissolubility of Marriage Theory: According to the notion, a husband and wife’s marriage is unshakeable. It has been said that marriage is an enduring bond.
Will Theory of Divorce: The Indissoluble Marriage Theory is completely at odds with this theory. According to the will hypothesis, a husband and wife are free to divorce their spouse whenever they so want.
Fault/Guilt/Offence Theory of Divorce: This hypothesis used to only function and be accepted by society when a spouse committed a serious crime against marriage or while the marriage was still in place.
The Frustration of Marriage Theory: This hypothesis focuses on the potential for marital parties to become frustrated with one another. Nonetheless, there may be no indication of guilt or any indication that any marital violation has been committed. This could occur, if one of the partners experiences mental illness, religious conversion, abandonment, or renunciation from the world. According to the Act, these are the most typical grounds for divorce in the modern world.
Consent theory of Divorce: According to this view, if the husband and wife agree, they can end their marriage because forcing them to live together can lead to mental health issues and other marital issues.[6]
Irretrievable Breakdown of Marriage Theory: This notion is predicated on the idea that a marriage has reached a breaking point at which there is no chance of the former relationship being restored. The couple can choose to end their relationship amicably and without resentment in such a circumstance. Irretrievable dissolution of marriage is not a ground for divorce under Section 13 of the Act.
A BRIEF HISTORY
The phrase was actually first used in New Zealand in 1921, when the court in the words of Salmond J. ruled in Lodder v. Lodde that “it is not in the interests of the parties nor in the interest of the public to keep the man and woman bound as husband and wife in law when matrimonial relations have ceased to exist,” adding that “in the event of such separation, the essential purpose of marriage is frustrated and its further continuation is not merely useless but mischievous.”[7] A marriage or civil union in New Zealand can only be dissolved if it has irreconcilably broken down, according to Section 39 of the Family Proceeding Act.[8]
The concept of breakdown was introduced in England in the Masarati v. Masarati case,[9] and the House of Lords’ 1943 ruling in the Blunt v. Blunt case[10] solidified the notion that there was no public benefit to legally preserving a wedding that had ultimately diminished. In Canada and Australia, the idea of an irretrievable breakdown of a marriage is accepted as a basis for divorce. According to Section 48 of the Family Law Act 1975,[11] which regulates family law matters in Australia, a divorce order may be issued if the court determines that the marriage has irretrievably broken down and that the parties have been apart for a minimum of 12 months.
LEGAL PROVISIONS
The Hindu Marriage Act, 1955 (“HMA”)provides for various grounds of divorce but does not include ‘irretrievable breakdown’ as a valid ground. The grounds for divorce under HMA include Adultery, Cruelty, Desertion, Conversion, Insanity, Leprosy, Venereal Disease, Renunciation, Presumption of Death, and Spouse missing for 7 or more years.[12] There are additional ground for divorce for women which includes Bigamy by husband, Rape, sodomy, or bestiality by the husband, and Repudiation of marriage if married before 15 years of age.[13]
In 1978, the Law Commission of India suggested ‘irretrievable breakdown of marriage’ as a distinct reason for filing for divorce. A point of separation with a limited likelihood of reunion was identified as the prerequisite for such a breakdown. The Law Commission of India strongly suggested in its 71st Report that ‘irretrievable breakdown of marriage’ be added to the list of grounds for divorce under Hindu law. Additionally, it highlights the three-year separation duration as a breakdown condition.[14] The Marriage Laws (Amendment) Bill, 1981[15] was subsequently introduced in Parliament based on the Report. Nevertheless, it was unsuccessful because of the ongoing and persistent resistance from a few women’s associations. The concept of irretrievable breakdown gained informal legitimacy since it was invoked in several court rulings awarding divorces, but it never became a legal statute. The resulting legal ambiguity was a major factor in the Law Commission’s decision to revisit the matter as a suo motu matter. In March 2009, the 217th Law Commission of India Report recommended that irretrievable breakdown be included to the list of grounds for divorce.[16]
ARTICLE 142 OF THE CONSTITUTION OF INDIA [17]
Without an enabling legislative measure, a divorce based on an irretrievable breakdown of marriage cannot be granted because the grounds for divorce under the Hindu Marriage Act and Special Marriage Act are exhaustive. The Hon’ble Supreme Court of India may exercise its authority if it is required to provide full justice, as permitted by Article 142 of the Indian Constitution.[18] The Indian Supreme Court has repeatedly granted divorces based on the irretrievable dissolution of marriages. In Shilpa Sailesh v. Varun Sreenivasan,[19] the Supreme Court of India outlined the extent and character of its authority under Article 142.
The five-judge Constitution Bench has ruled that in situations where a marriage cannot be saved, the authority granted by Article 142 may be used to issue a divorce. The Supreme Court of India has made it clear that Article 142 does not grant the parties the right to divorce if their marriage has failed; rather, it is a question of discretion that can only be used by the Supreme Court after considering a number of criteria which includes: how and when long the parties had lived together after marriage; the type of accusations made by the parties against one another and their family members; the orders from earlier court cases and how they affected their personal relationship; the number of attempts to resolve the conflicts through mediation or court intervention; and the length of the separation period which is to be 6 years and beyond. Prior to issuing a divorce decision, the parties’ economic and social standing, as well as their educational background, are taken into consideration.
JUDICIAL PRECEDENTS
Naveen Kohli v. Neenu Kohli[20]: THE LANDMARK CASE
After being married in 1975, the couple’s marriage soured after a few years, and accusations of abuse and adultery surfaced. The wife claimed that he had a concubine, and the husband claimed to have discovered her in a degrading relationship with another guy. As a sign of her determination to make his life miserable, the wife filed numerous civil and criminal lawsuits against her husband. The husband also filed some lawsuits and lived apart from the wife for almost a decade. Therefore, it was clear from the case’s facts that the marriage was irreparably damaged. The trial judge declared the marriage to be irreparable and ended it. The Supreme Court maintained the trial court’s position, citing the irretrievable breakdown of the marriage tie, despite the High Court’s determination to reverse it.
Ms. Jorden Diengdeh v. S.S. Chopra[21]
In this instance, the marriage seemed to have irretrievably broken down. The continuation of a marriage that has so obviously and thoroughly failed serves no purpose or goal. However, as neither mutual consent nor an irretrievable breakdown of marriage is a basis for divorce under the Indian Divorce Act, the couple will remain bound to one another if the High Court’s conclusions are upheld.
Poonam v. Surendar Kumar[22]
The Supreme Court noted that the couples were unable to fulfil the primary purpose of marriage, which is companionship, because they had been living apart for more than nineteen years. Divorce was thus granted on the grounds that the marriage had irretrievably broken down. The Supreme Court has cautioned against taking a strict stance, nevertheless.
Amarendra N. Chatterjee v. Smt. Kalpana Chatterjee[23]
The Supreme Court referenced this opinion in light of various facts. It was decided that the Hindu Marriage Act does not allow for the dissolution of a marriage by decree on the grounds of irretrievable breakdown, and as a result, the court cannot issue a decree based solely on that basis.
V. Bhagat v. D. Bhagat[24]
It was stated in this case that although it is not a basis for divorce on its own, that irretrievable collapse may be taken into account when examining the evidence for statutory grounds.
The above-mentioned cases suggest the cases where the Supreme Court has actively resolved the matrimonial agony through the remedy of the irretrievable measure but there are certain instances where the court has chosen to abstain from providing this relief. The one of the case is the recent case of Nirmal Singh Panesar v. Paramjit Kaur Panesar.[25] The Supreme Court denied relief because the wife was prepared and eager to fulfil her responsibilities under the marriage. Moreover, in the case of Delma Lubna Coelho v. Edmond Clint Fernandes,[26] , the Hon’ble Supreme Court through Hon’ble Justices Abhay Oka and Rajesh Bindal stated: “we do not find this to be a fit case for exercise of power under Article 142 as good sense may prevail on the parties. They had only shared a home for forty days.”
From the discussion of judicial paradigms discussed above it can be interpreted that the Hon’ble Supreme Court has not stated the water-tight formula on matters to be considered for this relief. However, the Hon’ble Supreme Court has taken a liberal approach which is considered to be right in today’s practice as ‘constant evolution to match the needs of the society is the pressing priority.’
COMPARISON: DIVORCE BY MUTUAL CONSENT & IRRETRIEVABLE BREAKDOWN OF MARRIAGE
According to Section 13B of the Hindu Marriage Act of 1955, mutual consent is a ground for divorce. In order to file for divorce, this section requires both parties to provide their assent. The procedure permits an 18-month window before the divorce decree is issued. Sub-section 1 of Section 13B explains that the six to eighteen-month term is meant to give the parties time to think back on their deeds and contemplate making amends.[27] This “transitional period is given to the parties to rethink about saving the marriage and solve all their differences.”[28] Before submitting the petition, the couple must also have been legally separated for a minimum of a year.
In a divorce by consent, both spouses file a joint petition stating their mutual desire to end the marriage, and the court issues a divorce judgment. As an alternative, one side could submit a petition claiming the other spouse’s permission. Before issuing the divorce, the court makes sure that matters like property, support, and child custody have been settled amicably.
On the other hand, a joint petition is not necessary for divorce based on the dissolution of a marriage. Either party may apply for divorce; mutual consent is not required. “It is important to note that mutual consent requires the consent of both parties, and if one party does not cooperate, this ground is not available.”[29]The court uses its discretionary authority to review the facts and evidence in circumstances of irretrievable breakdown. The court may issue a divorce order if it determines that the marriage is irreparable and that all attempts at reconciliation have failed.
SUGGESTIONS & CONCLUSION
People from all walks of life would have equal access to this remedy if all personal laws recognized the irretrievable breakdown of marriage as a separate basis for divorce. Laws must change as society develops to take into account shifting perspectives and situations. The idea of irretrievable breakdown can help create a more equitable legal system that preserves justice, honors personal freedom, and fosters dignity in marital conflicts by tackling these problems comprehensively. Here are some suggestions:
> The misunderstanding of irretrievable breakdown of marriage with mutual divorce is one of the main problems. Legislative definitions and classifications should be made explicit in order to address this.
> Many people don’t fully comprehend their legal rights and options when it comes to marital conflicts.
> For people to obtain justice without needless delays or problems, the processes for submitting petitions under the irretrievable breakdown of marriage should be made simpler.
> In situations of irretrievable breakdown, promoting the use of ADR procedures like arbitration or negotiation can help resolve disputes more quickly and amicably.
The legal system’s recognition of failed relationships and the changing dynamics of society are reflected in the irretrievable breakdown of marriage. It acknowledges the fact that some marriages cannot be saved despite efforts at reconciliation and that keeping them together just causes the parties to continue experiencing emotional pain. Although the idea provides a practical remedy for unworkable marriages, its effective application depends on its careful incorporation into the current legal system. To reduce misunderstanding, the clause needs to be clearly stated and distinguished from mutual divorce. Making this remedy available to those in need also requires streamlining the legal system, guaranteeing judicial consistency, and increasing public awareness.
Furthermore, it is crucial to protect the provision against abuse in order to prevent vulnerable people especially women from suffering unjustly. People from all walks of life would have equal access to this remedy if all personal laws recognized the irretrievable breakdown of marriage as a separate basis for divorce. Laws must change as society develops to take into account shifting perspectives and situations. The idea of irretrievable breakdown can help create a more equitable legal system that preserves justice, honors personal freedom, and fosters dignity in marital conflicts by tackling these problems comprehensively.
[1] Renata Grossi, Looking for Love in the Legal Discourse of Marriage 17 (2014).
[2] Irretrievable Breakdown of Marriage, Black’s Law Dictionary (12th ed. 2024).
[3] Hedaya 1.
[4] Manusmriti.
[5] Divorce, Merriam Webster Dictionary, https://www.merriam-webster.com/dictionary/divorce.
[6] The Hindu Marriage Act, 1955,No. 25 of 1955, § 13B (Ind.).
[7] Lodder v. Lodde, [1921] New Zealand Law Reports, 876.
[8] The Family Proceeding Act, 1980, § 39 (N.Z.).
[9] [1969] 1 WLR 393.
[10] [1943] AC 517.
[11] The Family Law Act, 1975 (Cth),§ 48 (Austl.).
[12] The Hindu Marriage Act, 1955, No. 25 of 1955, § 13(1) (Ind.).
[13] The Hindu Marriage Act, 1955, No. 25 of 1955, § 13(2) (Ind.).
[14] Department of Legal Affairs, Ministry of Law & Justice, Gov’t of India, Report No. 71 The Hindu Marriage Act, 1955-Irretrievable Breakdown of Marriage as a Ground of Divorce, 40 (1978), https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022080518.pdf.
[15] The Marriage Laws Amendment Bill, 2010, Bill No. XLI of 2010.
[16] Department of Legal Affairs, Ministry of Law & Justice, Gov’t of India, Report No. 217 Irretrievable Breakdown of Marriage-Another Ground For Divorce, 24 (2009), https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081084-2.pdf.
[17] India Const. art.142.
[18] Id.
[19] Shilpa Sailesh v. Varun Sreenivasan, 2023 SCC OnLine SC 544.
[20] Naveen Kohli v. Neenu Kohli, AIR 2006 SCC 1675.
[21] Ms. Jorden Diengdeh v. S.S. Chopra, 1985 SCC OnLine SC 164 (para 2,7) (Ind.).
[22] Civil Appeal No. 5195/2022.
[23] Irretrievable Breakdown of Marriage, Legal Service India, https://www.legalserviceindia.com/helpline/Irretrievable_breakdown_marriage.htm.
[24] 1994 AIR 710.
[25] Nirmal Singh Panesar v. Paramjit Kaur Panesar, 2023 SCC OnLine 1297.
[26] 2023 SCC OnLine SC 440.
[27] supra note 6.
[28] Suman v. Surendra Kumar, AIR 2003 RAJ 155.
[29] supra note 6.
Keywords: Irretrievable breakdown of marriage, Hindu Law, Law Commission, Theories of Divorce, Article 142.
