Irretrievable Break-Down of Marriage Under Hindu Law

There was a time when it was believed that the marriages were arranged in heaven, and it used to be a relation of flesh with flesh and bone with bone. So the question of separation from each other was a far cry. But slowly and steadily this concept did not find favour with social reformers, who wanted that a woman must not be chained with a man who is completely devoid of all the virtues that a reasonable husband should have.



Apart from the three remedies available to parties that is: Restitution of conjugal rights, Judicial separation and Divorce, the judiciary in India is demanding irretrievable breakdown of marriage as a special ground for divorce, as sometimes court face some difficulties in granting the decree of divorce due to some of the technical loopholes in the existing theories of divorce.

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It cannot be said in case a marriage is found to have been broken down to an extent that it was beyond all reconciliation, then whether any ground as laid down by law exists or not the court ought to hold or can take circumstances alone, as a ground for dissolving the marriage. Irretrievable breakdown of the marriage is not contemplated as a ground for dissolution of marriage s.13 of the Hindu Marriage Act and as such cannot by itself be taken as ground for decree for dissolution of marriage

This sacramental character of marriage has given rise to certain anomalies. The declaration of Manu that neither by sale nor by desertion is wife released from the husband was applied only to women and not men. Thus there was an element of inherent injustice on the wife in Hindu law. "To counter such inequalities among spouses and to protect the sacramental aspect of marriage, Hindu Marriage Act, 1955 was enacted which provided certain matrimonial remedies."

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Irretrivable Break Down of Marraige

This simply means that the couple can no longer live together as man and wife, and out of the two, one partner must prove to the court that the break down is so bad that there is no resonable chance of them getting back together.

Till now, the laws which are prevailing in India regarding the issue of divorce have not recognized a situation where the couple are facing such situation that despite the fact that they live under the same roof, there marraige is equivalent to a sepration. This is because, there is still no codified law for irretrievable breakdown of marraige. Sec 13 B of Hindu Marraige act recognizes few grounds for dissolution of marraige. The Supreme Court has  a view to do complete justice and shorten agony of the parties engaged in long drawn battle, directed dissolution of marriage. Indeed, these were exceptional cases, as the law does not specifically provides for the dissolution of marriage on the grounds other then those given in Hindu Marriage Act, 1955.  Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into services, the divorce cannot be granted.

Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955.

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-

  1. 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
  2.  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.

However the judiciary in India has started raising the demand of such a special ground under the present law in force. The Supreme Court of India in a recent case of Naveen Kohli v Neelu Kohli even asked the parliament to seriously consider the matter and bring an amendment in the present law. The apex court said that: “Before we part with the facts, on the consideration of the totality of the facts, this court would like to recommend to the Union Of India to seriously consider for the bringing of the amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for grant of divorce. A copy of this judgment be sent to the Secretary, Ministry of Law & Justice, Department of Legal Affairs, Government of India for taking appropriate steps”

In fact the Law Commission Of India, on reference made by the Central Government, in its 71st report has made a detailed analysis of the theory and has described how exactly it could be incorporated in the present law. In 217th report the law commission has further urged the government to make amendments to introduce the theory.

Recommendations of the Law Commission 

In spite of recommendations of the Law Commission in its 1st Report, the Legislature did not consider it advisable to introduce irretrievable breakdown of marriage as one of the grounds for a decree of divorce.

In Saroj Rani vs Sudarshan Kumar Chadha the Supreme Court has first laid down in upholding a decree of divorce following a consent decree for restitution of conjugal rights that it is evident that for whatever be the reasons this marriage has broken down and the parties can no longer live together as husband and wife, if such is the situation it is better to close the chapter

This view of the Supreme Court was referred to in Amarendra N. Chatterjee v Smt. Kalpana Chatterjee, in the context of different sets of facts and it has been held that the Hindu Marriage Act does not contain any provision for dissolution of marriage by a decree on the ground of irretrievable breakdown of marriage and as such the court cannot grant a decree on that ground alone.

In Apurba Mohan Ghosh Vs Manashi Ghosh, it has been held that in view of the provisions of s. 23 of the Act, the court would grant relief only when any of the statutory grounds mentioned in the Act is found to exist.

In V. Bhagat Vs D. Bhagat  it has been held that irretrievable break-down of the marriage is not a ground by itself for a decree of divorce. While scrutinising the evidence on record it may be relevant to determine whether the ground alleged is made out.

If the theory of irretrievable breakdown of marriage is introduced in marriage law of India, there may be increase in the number of divorce cases, but that wiII not destroy the institution of marriage nor wiIl it affect the quality of family life.The Supreme Court in Ms. Jorden Diengdeh v S.S Chopra,  has made judicial recommendation for a complete reform of law of marriage by introducing inter alia irretrievable breakdown of marriage as a ground for divorce. The Law Commission in its 71st Report on the Hindu Marriages Act 1955 has made the following recommendation on "Irretrievable Breakdown of Marriage as a Ground of Divorce."

Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in Life, an experience of the joy that comes from enjoying in common things of the matter and of the spirit and from showering love and affection on one's offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage 'breakdown' and if it continues for a fairly long period, it would indicate destruction of the essence of marriage-'irretrievable breakdown'."

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71st Report of The Law Commission Of India (1978)

The Law Commission in its 71st report, submitted in 1978, dealt with the concept of irretrievable breakdown of marriage. The report deals with an important question concerning the Hindu Marriage Act, 1955, whether irretrievable breakdown of marriage can be made a ground for divorce under that Act and if so, to what extent and subject to what conditions?

The Report mentions that as far back as 1920, New Zealand was the first of the Commonwealth countries to introduce the provision that a three-year or more separation agreement was grounds for filing a petition in the courts for divorce.

In 1921, in the first case of the granting of divorce on these grounds in New Zealand, the court laid down that when matrimonial relations have, in fact, ceased to exist it is not in the interests of the parties or in the interest of the public to keep a man and woman bound as husband and wife in law. In the event of such a separation, the essential purpose of marriage is frustrated and its further continuance is not merely useless but mischievous. This formulation has become a classic enunciation of the breakdown principle in matrimonial law.

The commission concludes that where a marriage has ceased to exist both in substance and in reality, divorce should be seen as a solution and an escape route out of a difficult situation. Such a divorce should be concerned with bringing the parties and the children to terms with the new situation and working out a satisfactory basis for regulating relationships in the changed circumstances. Not to dwell on the ‘wrongs’ of the past.

Fault Theory V. Breakdown Theory

In most of the cases, the question confronted by the Hon’ble Supreme Court is should divorce be granted solely on the basis of who is at fault? Or should ‘irretrievable breakdown’ of a marriage be cause for divorce?

The Hindu Marriage Act governing marriages between Hindus, and the Special Marriage Act governing marriage between individuals regardless of religious persuasion, are premised on the ‘fault’ or ‘matrimonial offence’ theory for the purpose of divorce. This, in effect, means that a person can be granted a divorce if, for example, it is established that the spouse has committed adultery, or has treated the person cruelly or deserted for more than two years. Thus the person has been at fault in some way. In addition, the wife can ask for a divorce on grounds that after marriage her husband was guilty of rape, sodomy or bestiality.

Part of the fault theory is that a person cannot take advantage of his/her own wrong. Divorce can only be sought by the hurt or aggrieved party who has been at the receiving end of the other party’s offending conduct. There has been an ongoing debate about whether divorce should be granted solely on the basis of the fault of the party or whether it should be based on the breakdown of marriage. Opinions remain divided among sociologists, lawmakers, reformers and even activists and feminists.

Marriage as a sacrament, society’s stake in the continuance of marriage, the duty of judges to effect reconciliation between the parties, and public interest are some of the major factors that feature in this debate. Would introducing irretrievable breakdown as grounds for divorce work against the interests of women, given the gender disparities and large number of women deserted by their husbands?

In the recent case of Naveen Kohli V. Neelu Kohli, the Supreme Court held that situations causing misery should not be allowed to continue indefinitely, and that the dissolution of a marriage that could not be salvaged was in the interests of all concerned. The court concluded that the husband was being mentally, physically and financially harassed by his wife. It held that both husband and wife had allegations of character assassination against them but had failed to prove these allegations. The court observed that although efforts had been made towards an amicable settlement there was no cordiality left between the parties and, therefore, no possibility of reconnecting the chain of marital life between the parties.

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, 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, 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.

Click here to read more on Divorce- Types, Concept and Grounds 

Position of Children born out in the period of wedlock

The court won't pass a declaration of separation unless it is fulfilled that sufficient procedure for support of young ones borne out of the marriage has been made by money related limit of gatherings to the marriage. Young ones the end goal of the alteration demonstration incorporates:

1. Minor Children including embraced children or;

2. Unmarried or widowed little girls who don't havemthe budgetary assets to maintain them or;

3. Children who are not physically and rationally equipped for taking care of themselves and don't have satisfactory money related assets to bolster themselves.

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Thus to conclude, "it can be said that marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist. This foundation presupposes the existence of a platform build on the basis of sound understanding between the spouses". If this understanding is missing between the spouses and the marriage is a continuous malady, then it is desirable that the marriage should be dissolve with the intervention of the court. There is no useful purpose surved by continuing such a marriage. Thus, on the basis of "irretrievable breakdown theory" such marriage should be dissolved for the common betterment of both the spouses.

This is the reason why the attitude of legislature changed from the "guilt theory" to the "divorce by mutual consent" (the consent theory). There may be a case where relation of the parties has broken down irretrievably and there is no chance of reconciliation and they are also not ready for divorce by mutual consent. In that eventuality continuing such relation is futile and as per Irretrievable Breakdown of Marriage theory such marriage should be dissolved.