IRRETRIEVABLE BREAKDOWN AS A GROUND FOR DISSOLUTION

This article is written by Mahak Jain of Dharmashastra National Law University, Jabalpur, an intern under Legal Vidhiya

Abstract

Marriage is considered a fundamental building block of social structure, deeply rooted in cultural and religious traditions. Hindu law perceives marriage as a sacred and indissoluble institution, creating challenges when marriages face irreconcilable breakdowns. In the framework of Hindu law, this article explores the idea of an irretrievable collapse of marriage as a basis for divorce. It explores historical perspectives, legislative developments, and judicial interpretations regarding divorce in India, particularly under the Hindu Marriage Act of 1955. The article examines the complexities surrounding the recognition of irretrievable breakdown as a basis for divorce, addressing legal, social, and ethical considerations. It also evaluates the advantages and disadvantages of adopting the irretrievable breakdown theory, highlighting its potential impact on marital relationships, societal norms, and the administration of justice. Through an analysis of case law and scholarly discourse, the article advocates for a nuanced approach that balances the sanctity of marriage with the need to provide individuals with a legal recourse when marriages become untenable.

Keywords

Marriage, Hindu, Legislation, Divorce, Dissolution.

Introduction

The fundamental building block of social structure is marriage. Hindu law views marriage as an eternal, indissoluble institution.[1] Some inconsistencies have arisen as a result of marriage’s sacramental nature. Manu’s statement, which states that a wife cannot be freed from her husband by sale or desertion, exclusively applies to women, not men. [2]

An irretrievable collapse of the marriage is a legal term that refers to a circumstance in which a marriage has broken down beyond repair. This suggests that there is no longer any possibility of a reconciliation and that the couple cannot continue to live together as husband and wife. Divorce is permitted in many jurisdictions when a marriage cannot be saved.

Thus, Hindu law included a provision that was inherently unfair to the wife. The Hindu Marriage Act of 1955[3], which established specific marital remedies, was passed in order to combat these disparities between spouses and safeguard the sacramental element of marriage. The general public has a strong stake in the preservation of marriage as an institution. It is the cornerstone of the family, which supports society, and without it, civilization is impossible. Only a divorce order based on one of the grounds listed in Section 13[4] of the Hindu Marriage Act, 1955[5] may dissolve a solemnised marriage, regardless of when the Act went into effect. No spouse may get remarried before their Hindu marriage is dissolved in accordance with the Act. Therefore, it is clear from the Act’s multiple sections that monogamy is firmly enforced under current Hindu law. The husband is not automatically granted plurality of marriage under Islamic law. Muslim law as it has historically been read and enforced in India allows for multiple marriages as long as one of the parties can support the other, albeit the ability to fairly administer the law between co-wives is a must.

Hindu law, which is applied by Indian courts, states that divorce is not permitted as a way to dissolve a marriage because marriage is a sacrament, with the exception of situations in which it is permitted by custom. Severance should only be permitted in the ways and for the reasons or causes stipulated by law, according to public policy, morality, and societal interests, if at all. A legitimate tradition to dissolve a marriage is one of the reasons that is legally sanctioned. Therefore, a legitimate custom to the contrary may apply to the laws governing monogamy and the dissolution of marriage. This demonstrates the inverse relationship between a recognised, legal custom and Hindu marriage and divorce laws.

Indian Law Regarding Divorce

It used to be thought that marriages were prearranged in heaven and that a person should marry another person of the same gender or of a different gender entirely. Therefore, the idea of being apart from one another seemed absurd. However, social reformers gradually lost popularity with this idea, believing that a woman shouldn’t be forced to marry a man who lacks any of the qualities that a decent spouse ought to possess. Even while Hindu reformers occasionally called for drastic modifications to the rules of Hindu Law, the British Government disapproved of such attempts.[6]

Eight years after the country’s independence, the Hindu Marriage Act of 1955 was enacted. The Hindu Marriage Act’s Section 13[7] addresses the grounds on which a party may petition a competent court with competence to grant a divorce decree. “Divorce” literally refers to the formal separation of two people of different sexes who nonetheless want to treat each other with dignity and respect.

Irretrievable Breakdown of Marriage

As a result, the couple’s marital status has been terminated. The court must be convinced by both partners, as well as by one partner, that there is no realistic prospect of the marriage succeeding. [8]

As of right now, India’s divorce rules do not acknowledge a scenario in which a couple’s marriage is deemed to be identical to a separation even though they share a residence.
That is, the irretrievable breakup of a marriage is still not covered by codified law. In Section 13[9], the Hindu Marriage Act acknowledges a limited number of grounds for dissolution of marriage. However, because of the changing nature of marriage in society and the shift in social mores, the Supreme Court has voiced special concern over the issue of making an irretrievable collapse of marriage a reason for divorce.

The Supreme Court has ordered the dissolution of marriage in order to provide full justice and lessen the suffering of the parties involved in a protracted legal battle. These were certainly uncommon occurrences, since the Hindu Marriage Act of 1955[10] expressly allows for the dissolution of marriage on grounds other than those listed there. The Hindu Marriage Act of 1955[11] does not grant a divorce on the grounds of an irretrievable collapse of marriage.

Due to shifting conditions and the large number of cases when marriages are practically dissolved, divorce cannot be given; thus, this concept needs to be pushed into services.
The Legislature will ultimately decide whether or not to recognise irretrievable marriage breakdown as a basis for divorce, but in our opinion, the Hindu Marriage Act of 1955 requires the Legislature to take this into consideration.

The court will accept the following types of evidence as proof of irretrievable breakdown:

• For a while now, the couple has not lived as husband and wife.
  It is hard for one partner to continue living together as husband and wife since the other partner has sex with someone else.
• Due to their designation as “habitual criminals,” one partner is incarcerated. (This indicates that the offender continues to commit crimes and was given a sentence of 10 to 15 years in jail as a result.)
• One spouse abandoned the other.
• One partner mistreated the other; for instance, the husband may repeatedly beat the wife.
• One spouse struggles with alcoholism or drug addiction.[12]

The couple is no longer in love with one another; perhaps they were married at an early age or are too different from one another. For whatever other reason, one of the spouses finds it impossible to cohabitate as husband and wife.

In the cases of Naveen Kohli v. Neelu Kohli[13] and N.G. Dastane v. S. Dastane[14], the Supreme Court directed the government to include irretrievable collapse of marriage as a justifiable ground for divorce. The instances highlight the need of covering this ground, especially for the sake of small children, who are big victims caught in the middle of their parents’ irretrievable marriage.
Finally, the decision adds that many industrialised countries now recognise irretrievable collapse of marriage as a separate reason for divorce, and that divorce laws have evolved over time to provide married couples with a quick legal recourse.

This type of case was looked at by the Supreme Court in A. Jayachandra v. Aneel Kaur[15]. Following a discussion of the facts, the court came to the following conclusion: When the respondent prioritises her career over her husband’s freedom, it clearly indicates discord, dispersion, and dissolution of the marital unity, from which the court can infer an irreversible breakdown of the marriage. The husband was granted a divorce by the court upon finding that the marriage was irretrievably broken down.

This is remarkable, though, because in cases identical to this one, the court has frequently ordered the restitution of conjugal rights instead of awarding a divorce ruling, citing the sanctity of Hindu marriage as the basis for this decree.

Given that consent is necessary for a marriage to be deemed valid, consent also serves as the foundation for the idea that a marriage cannot be saved. When one or both parties feel that the marriage has failed, they may file for divorce because consent is given priority at the time of marriage. The process of filing for divorce by “mutual consent” can begin when both parties acknowledge that their marriage has failed.

Even when the other person is reluctant to end the relationship, it would be facilitating for one party to file for divorce on the grounds that the marriage has failed when only one of the parties feels that way.

Nevertheless, irretrievable marital collapse is not included in any law as a specific basis for divorce, with the exception of Islamic law. Including the basis of an irretrievable collapse of marriage in the divorce statute raises five main difficulties.

These are the following:

• In our society, marriage relationships are revered, thus if there was a basis for divorce, they would be viewed with indifference;
• Divorce is socially stigmatised, particularly for the wife;
• This reason allows husbands to end a marriage at any time;
• An unfaithful husband could abuse this foundation, and
• There are subjective components to the concept of irretrievability and disintegration.[16]

To acknowledge the irreversible disintegration of a marriage as grounds for divorce, we must relinquish our convictions regarding the sanctity of the matrimonial relationship. Such relationships are sanctified only because of the extraordinary trust and sharing they entail; they are not sanctified by ideas of unity and duty that come from beyond. This is related to the stigma problem, which we should tackle rather than the addictions that result from these kinds of connections. This would be quite important in assisting the woman in regaining some confidence.

The final three objections can be addressed collectively by establishing the criteria for irretrievable breakdown, implementing sufficient safeguards that incorporate objective elements to identify irretrievable breakdown, and requiring the resolution of ancillary issues in the marriage relationship before granting a divorce. This would include dividing up the spouses’ property, arranging for the children’s custody, and providing financial assistance to the spouse and kids, among other things. If one of the spouses filing for divorce has done something improper, this may have an impact on how much maintenance the other spouse receives. Although this ground might appear to be a desirable and simple choice, the addition of objective criteria to assess breakdown will guarantee that this ground is not chosen hastily or impulsively.

What Causes Irretrievable Failure?

Lawyers and jurists are increasingly familiar with the theoretical underpinnings of adding the irretrievable collapse of marriage as a ground for divorce.

If there is no fault or a fault of such a kind that the parties concerned do not want to discuss it, but a situation has developed where the marriage cannot work, or if there are all the outward signs of marriage but none of the real thing, then restricting the basis for divorce to a specific offence or matrimonial disability is unfair.

When the emotional and psychological boundaries that are essential to marriage have vanished, there is very little point in keeping the marriage a façade under such situations.

Following the actual and substantive dissolution of the marriage, there is no justification for refusing a divorce. It is up to the parties to decide whether or not their mutual relationship is strong and authentic on an emotional and social level in this kind of situation. Divorce need to be viewed as a remedy and a means of getting out of a trying circumstance. Instead, then focusing on the wrongs of the past, such a divorce should aim to help the parties and the kids come to terms with the new circumstances and developments by figuring out the most agreeable foundation for their future relationship. One of the factors that can be used to infer an irreversible breakdown is whether or not the husband and wife have lived apart consistently for an extended period of time. Living apart, though, ought to be the sole indication of an irreversible breakdown. Therefore, the parties’ assertion that the marriage has irretrievably broken down is insufficient. The fact that a couple hasn’t lived together for an extended length of time can be seen as concrete evidence of a marriage’s dissolution, but such an assertion needs to be supported.

In Sandhya Rani v. Kalyanram Narayanan[17], as reported in (1994) Supp. 2 SCC 588, this Court reaffirmed and adopted the position that, given the parties’ more than three-year separation, it is beyond a reasonable doubt that their marriage has irretrievably failed. There is absolutely no possibility of them getting together. As a result, the court issues a divorce decree in these circumstances.

Marriage and divorce are sensitive human and emotional relationships. It necessitates respect, trust, love, tenderness, and enough play to allow for fair changes with the partner. Additionally, the connection needs to follow social conventions.

These days, laws designed with the altered social order and these norms in mind regulate marriage behaviour. The goal of controlling matrimonial standards is to create a cohesive, healthy community that is not unstable or permeable, while also serving the interests of the individual. In general, society places a great deal of importance on the institution of marriage. As a result, using any statement of an “irretrievably broken marriage” as a prisoner’s formula to obtain divorce relief would be inappropriate. This component needs to be taken into account in light of the case’s other facts and circumstances.

Advantages and Disadvantages of the Irretrievable Breakdown Theory:

Before discussing the pros and cons of the irretrievable breakdown theory, it is important to consider whether the Hindu Marriage Act can be changed to make the irretrievable collapse of a marriage a legitimate basis for the issue of a divorce decree.

We must consider the evolving character of the family when trying to find an answer to the question. The modern family is become more egalitarian and democratic. In certain situations, the husband and wife split the couple’s income in addition to the family home. The family is becoming more of a coalition due to the increase in female engagement.

As a result, if the coalition is unable to continue, its legal support must be terminated.
One way to meet the need that the grounds for an irretrievable dissolution of marriage be particular is to say that the petitioner needs to show the court that they have been living apart for a sufficient amount of time, which is a real fact. Therefore, the evidence in front of judges must be used to determine whether or not the parties have been living apart for the necessary length of time, not some abstract idea.

A fault-based divorce legislation is insufficient to address a damaged marriage. According to the flawed hypothesis, guilt must be shown, and divorce courts are shown specific examples of activity that discredits the institution of marriage. Judges and solicitors are occasionally cast in the position of scavengers due to the divorce of matrimonial offence. The worst obscenities in a married existence are sought out and exposed by the lawyers, and the courts are forced to face them.

Therefore, it should come as no surprise that various accusations are freely thrown around the courtroom under the current adversarial system. We should not have to rely on antiquated divorce laws that require both men and women to be proven guilty or innocent.

The public washing of dirty linen that occurs in protracted cases of cruelty or cases based on fault should be discontinued. Such a sad show will not occur if divorce is permitted on the grounds of marital dissolution.

It is not possible to claim that the respondent’s marriage has improved if tens of thousands of men and women are unable to regularise their status in the community despite their intense desire to do so. It should be legal for people to remarry in situations when they are able to get a death certificate for a marriage that has long since ended.

We have already addressed the criticism that using irretrievable breakdown as a basis for divorce is ambiguous.

Some criticisms of it could be addressed as follows:

Irretrievable breakdown changes the definition of marriage from a lifelong partnership to one that can be dissolved at any time by the couple, or even just one of them.

The fundamental tenet that no man should be permitted to profit from his own wrongdoing dictates that a spouse who caused a marriage to fail cannot use that failure as justification for getting a divorce against the wishes of their spouse. The law will have formally recognised the idea that someone may exploit their own wrong for the first time by allowing one spouse to divorce the other against the latter’s will following a predetermined amount of time spent apart.

The Hindu Marriage Act has not always upheld the belief that one cannot profit from one’s own wrongdoing. Clause (ii) of subsection (1A) of section 13[18] of the Act states that any party to a marriage, whether solemnised before or after the Act’s commencement, may file a petition for the marriage to be dissolved by a divorce decree on the grounds that the parties have not restored their conjugal rights to each other for a year or longer following the issuance of a decree for the restitution of rights in proceedings in which they were parties.

This clause clearly states that even the party who was at fault for disobeying a decree regaining conjugal rights may also file for divorce on the grounds that no rights between the parties to the marriage have been restored for a year or more after the decree regaining conjugal rights was issued in a proceeding in which they were parties. This party would still be taken advantage of for its own fault even though it was at fault. Therefore, it is impossible to claim that the Hindu Marriage Act’s current provisions allow anyone to profit from their own wrongdoing.

Therefore, if the legal bond is sought to be maintained despite the disappearance of the emotional substratum, it would be unrealistic for the law to ignore the fact that the marriage has broken down beyond repair and detrimental to both society and the parties’ interests. Such a path would promote constant squabbling, enduring resentment, and frequently result in immorality. When a couple has been apart for an extended length of time, it’s reasonable to assume that their marriage is irreparably damaged. Despite having a formal connection, the marriage becomes a farce. The law’s refusal to break that tie in these situations does not uphold the sanctity of marriage; rather, it demonstrates a lack of consideration for the partners’ sentiments and emotions.

The public interest requires that the married status be maintained as much as possible, whenever possible, and that the court have the authority to declare what is already defunct de jacto defunct de jure. When a marriage has collapsed beyond repair, it is in the public interest to acknowledge that fact.[19]

Maintaining the charade is undoubtedly more favourable to immorality and could be detrimental to the public interest than ending the marriage contract.

There is no benefit to trying to keep the parties permanently bound to a marriage that has actually ceased to exist because there is no lawful method to force a spouse to resume living with the consort. Marriage is a lifetime of living together at home. Once there is no longer any chance of cohabitation, the legal connection should be severed.

The Law Commission of India’s 71st Report (1978)

In 1978, the Law Commission examined the concept of an irretrievable breakdown in marriage in its 71st report.[20]

The crucial concern regarding the Hindu Marriage Act of 1955[21] is addressed in the report.

Whether the Act permits the irretrievable dissolution of a marriage to serve as a basis for divorce, and if so, to what degree and under what circumstances?

As early as 1920, New Zealand became the first Commonwealth country to institute the rule that a separation agreement lasting three years or more might serve as the foundation for a divorce petition to be filed in court. In 1921, the court determined, in the first case of its kind in New Zealand, that it serves neither the public interest nor the interests of the parties to keep a man and woman legally linked as husband and wife after matrimonial relations had actually ended[22]. When that occurs, the primary objective of marriage is undermined, and continuing later is not only meaningless but also dishonest. This phrase has evolved to symbolise the breakdown idea in marital law in a traditional manner.

The Law Commission states that it is unfair to those who have no fault at all or who have fault of a nature that they do not want to discuss but the marriage cannot succeed, to restrict divorce to circumstances involving matrimonial infirmity. It depicts a situation where the emotional and other bonds that make up a marriage have been severed, leaving only a façade in place. The commission concludes that when a marriage has failed both materially and realistically, divorce should be seen as a remedy and a route out of a difficult situation. In a situation like this, the emphasis should be on assisting the parties and the children in adjusting to the new circumstances and coming up with a practical structure for managing the parties’ relationships in the changed setting in order to get past the wrongs committed in the past.

Conclusion

In conclusion, the institution of marriage holds immense societal importance, serving as the foundation of the family and civilization itself. However, when marriages encounter insurmountable challenges, maintaining the façade of unity serves no beneficial purpose. When reconciliation is no longer possible, the idea of an irretrievable breakdown of marriage provides a practical solution that enables spouses to part ways graciously. By shifting from fault-based divorce to a consent-based approach, the legal system acknowledges the complexities of modern relationships and provides individuals with the autonomy to pursue happiness and fulfillment. While the adoption of irretrievable breakdown as a ground for divorce poses challenges, including potential abuse and societal stigma, its recognition reflects a maturation of legal and social norms. Ultimately, embracing this concept empowers individuals to navigate the complexities of marriage and divorce with dignity and respect, fostering a more equitable and compassionate society.

References

1. The Hindu Marriage Act, Act No. 25 of 1955.
2. Dr Poonam Pradhan Saxena, Family Law Lectures Family Law II, 5^th Edition
3. Changing Dimensions of Institutions of Marriage in India: A Socio-Legal Evaluation, International Journal of Law Management and Humanities, Volume 4, Issue 2, Page 58 – 72, http://doi.one/10.1732/IJLMH.26015.
4. Restitution of Conjugal Rights Under Hindu Law, https://racolblegal.com/restitution of-conjugal-rights-under-hindu law/#:~:text=The%20declaration%20of%20Manu%20that,his%20wife%20and%20vice%20versa.
5. Law Pedia, TOI, Grounds for Divorce in India, https://timesofindia.indiatimes.com/readersblog/lawpedia/grounds-for-divorce-in-india-35652/
6. Shri Rakesh Raman v. Smt. Kavita, 2013, https://www.livelaw.in/pdf_upload/sc-marriage-dissolution-irretreivable-breakdown-470130.pdf.
7. Irretrievably Broken Down Marriage Can Be Dissolved On Ground Of ‘Cruelty’ : Supreme Court, LIVELAW NEWS NETWORK, https://www.livelaw.in/top-stories/irretrievable-breakdown-of-marriage-cruelty-divorce-supreme-court-dissolution-227340?infinitescroll=1.
8. Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, https://www.scconline.com/Members/SearchResult.aspx.
9. N.G. Dastane (Dr) v. S. Dastane, (1975) 2 SCC 326, https://www.scconline.com/Members/SearchResult.aspx.
10. A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22, https://www.scconline.com/Members/SearchResult.aspx.
11.  Marriage Considered ‘Pious’ In Indian Society: Divorce On Ground of ‘Irretrievable Breakdown of Marriage’ Not Always Desirable: Supreme Court, https://www.livelaw.in/top-stories/marriage-considered-pious-in-indian-society-divorce-on-ground-of-irretrievable-breakdown-of-marriage-not-always-desirable-supreme-court-239856.
12. Sandhya Rani v. Kalyanram Narayanan, 1994 Supp (2) SCC 588, https://www.scconline.com/Members/SearchResult.aspx.
13. Bruce C. Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy- Balancing the Individual and Social Interests, Volume 81, Issue 3, https://repository.law.umich.edu/cgi/viewcontent.cgi?article=4662&context=mlr.
14. Irretrievable Breakdown of Marriage as a Ground for Divorce, https://www.scconline.com/blog/post/2022/04/15/irretrievable-breakdown-of-marriage-as-a-ground-for-divorce/#:~:text=In%20its%2071st%20Report%2C%20the,as%20a%20criterion%20of%20breakdown.
15. Vani Chandra, Navigating the Legal Landscape of Irretrievable Breakdown of Marriage in India, https://sociallawstoday.com/navigating-the-legal-landscape-of-irretrievable-breakdown-of-marriage-in-india/.

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[1] Shyam Prakash Pandey, Changing Dimensions of Institutions of Marriage in India: A Socio-Legal Evaluation, International Journal of Law Management and Humanities, Volume 4, Issue 2, Page 58 – 72, http://doi.one/10.1732/IJLMH.26015.

[2] Satarupa Sarkar, Restitution of Conjugal Rights Under Hindu Law, March 12, 2017, https://racolblegal.com/restitution-of-conjugal-rights-under-hindu-law/#:~:text=The%20declaration%20of%20Manu%20that,his%20wife%20and%20vice%20versa.

[3] The Hindu Marriage Act, Act No. 25 of 1955.

[4] The Hindu Marriage Act, § 13, Act No. 25 of 1955.

[5] Ibid.

[6] Law Pedia, TOI, Grounds for Divorce in India, Jul 25, 2021, 22:47 IST, https://timesofindia.indiatimes.com/readersblog/lawpedia/grounds-for-divorce-in-india-35652/.

[7] Ibid.

[8] Shri Rakesh Raman v. Smt. Kavita, 2013, https://www.livelaw.in/pdf_upload/sc-marriage-dissolution-irretreivable-breakdown-470130.pdf.

[9] The Hindu Marriage Act, § 13, Act No. 25 of 1955.

[10] Ibid.

[11] Id.

[12] Irretrievably Broken Down Marriage Can Be Dissolved On Ground Of ‘Cruelty’ : Supreme Court, LIVELAW NEWS NETWORK, 27 Apr 2023 1:35 PM, https://www.livelaw.in/top-stories/irretrievable-breakdown-of-marriage-cruelty-divorce-supreme-court-dissolution-227340?infinitescroll=1.

[13] Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, https://www.scconline.com/Members/SearchResult.aspx.

[14] N.G. Dastane (Dr) v. S. Dastane, (1975) 2 SCC 326, https://www.scconline.com/Members/SearchResult.aspx.

[15] A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22, https://www.scconline.com/Members/SearchResult.aspx.

[16] Sheryl Sebastian, Marriage Considered ‘Pious’ In Indian Society: Divorce On Ground of ‘Irretrievable Breakdown of Marriage’ Not Always Desirable: Supreme Court, 11 Oct 2023, 1:23 PM, https://www.livelaw.in/top-stories/marriage-considered-pious-in-indian-society-divorce-on-ground-of-irretrievable-breakdown-of-marriage-not-always-desirable-supreme-court-239856.

[17] Sandhya Rani v. Kalyanram Narayanan, 1994 Supp (2) SCC 588, https://www.scconline.com/Members/SearchResult.aspx.

[18] Ibid.

[19] Bruce C. Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy- Balancing the Individual and Social Interests, Volume 81, Issue 3, https://repository.law.umich.edu/cgi/viewcontent.cgi?article=4662&context=mlr.

[20] Loli Shukla, Irretrievable Breakdown of Marriage as a Ground for Divorce, April 15, 2022, https://www.scconline.com/blog/post/2022/04/15/irretrievable-breakdown-of-marriage-as-a-ground-for-divorce/#:~:text=In%20its%2071st%20Report%2C%20the,as%20a%20criterion%20of%20breakdown.

[21] Ibid.

[22] Vani Chandra, Navigating the Legal Landscape of Irretrievable Breakdown of Marriage in India, December 15, 2023, https://sociallawstoday.com/navigating-the-legal-landscape-of-irretrievable-breakdown-of-marriage-in-india/.

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