In this blog post, Abhiraj Thakur, a 1st-year student of NALSAR University of Law, Hyderabad, writes about the concept of irretrievable breakdown of marriage as a solid ground for divorce. The author uses various case laws to solidify his views. 

When a relationship is not going good and is unnecessarily maintained on papers, where the feelings of trust, love do not exist, and no scope of recovery of relationship is there it is better to end the relationship, incompatibility is often a major reason for unhappiness. When friends can end their relationship, why can’t a couple?”[1] 

Marriages in India have always been considered more than just a union, in fact as defined, marriages in India are considered a sacrament.[2] For the reason that the institution of marriage is considered so sacred, for something like divorce to be accepted and be given legal and social recognition was quite a big step. Divorce Law in India still follows the ideology that only in the cases of extreme problems should marriages be dissolved and that too only after every other means of reconstitution the union is exhausted.

 

Theories of Divorce

Divorce Law in India is based on two theories:

• The Fault theory: The Fault theory refers to the dissolution of marriage on the grounds of either party to the marriage committing a matrimonial offense, like adultery, desertion, etc., or has been suffering from mental disorder. In toto, there are nine grounds under this theory to get a divorce under the Hindu Marriage Act, 1955.
• Mutual Consent theory: Mutual Consent theory is the concept that if two individuals have the discretion to get married, then they should also be allowed to move out of the union if they wish to do so. It is enumerated under Section 13iA and 13iB of the Hindu Marriage Act, 1955.

What the Indian Law fails to address and cater to is the situations of marriage when all the sanctity and meaning of it has broken down with no fault of either of the parties, yet there is no provision in law to seek a divorce. This is what is called as the No-Fault Theory of Divorce or Irretrievable Breakdown of Marriage.

 

History of Irretrievable Breakdown as a Ground for Divorce

The concept of irretrievable breakdown of marriage was for the first time introduced in New Zealand where it was recognized that it needn’t be necessary for there to be some fault or other for a spouse to want to opt out of a marriage and hence the law has to recognize and cater to that requirement.

In England, it was the case of Masarati v. Masarati[3] That had opened the gate for the theory and the court of appeal had held that “today we are perhaps faced with a new situation as regards the weight to be attached to one particular factor that is the breakdown of marriage” and the House of Lords 1943 decision in Blunt v. Blunt[4] made it increasingly accepted that no public interest was served by keeping legally in existence a marriage which had in fact broken down.

The Muslim Law too gives both the husband and the wife the right to give Talaq and recognizes the breakdown theory.

In the Mortimer Committee’s report, the breakdown of marriage is defined as: “such failure in the matrimonial relationship or such circumstances adverse to that relation that no reasonable probability remains for the spouses again living together as husband and wife”.[5]

The Law Commission of England in a report had said that there are two objectives to good divorce laws:

• To buttress rather than undermine the stability of marriage
• When regrettably a marriage has broken down, to enable the empty shell to be destroyed with maximum fairness and minimum bitterness, humiliation and distress.[6]

The idea being that though marriage is a union of two individuals and is about companionship and love, the option to opt out of it and dissolve the union should also be available with the same amount of dignity and ease, rather than be put in a situation where a fault has to be brought out to prove to the court as to why the marriage wouldn’t work.

There are two theories that are prevalent in Divorce Law in India, i.e., the Fault Theory and the Mutual Consent Theory. Even though they cater to a large part of the divorce-seeking couples, it is imperative to provide provisions wherein there has been, for example, such emotional damage to marriage, something that a couple might not want to disclose to people outside their marriage, and there’s no hope or chances of reconciliation. They should have the choice and the ability to dissolve the marriage and part ways without having to go through the ordeals of the legal system and having to appeal to higher courts as till now it has only been the higher courts that have shown the authority to be able to dissolve marriages on the grounds of irretrievable breakdown.

 

Irretrievable Breakdown in India

The concept of irretrievable breakdown of marriage is a lot more problematic in the context of the Indian society because the institution of marriage in India has a lot more sentiment and divinity attached to it. For a society that looks at marriage as a sacrament[7] And has evolved from looking at marriage as eternal love and promise, the idea of divorce wherein partners want a dissolution for no particular reason is quite hard to digest.

 

Recognition by Supreme Court of India

In the case of Naveen Kohli v. Neelu Kohli[8] The parties had gotten married in 1975, within a few years, the marriage had turned sour, and there were allegations of cruelty, adultery. The husband alleged that he’d found his wife in a comprising position with another man, and the wife had alleged that he had a concubine. The wife initiated several civil and criminal proceedings against husband indicating her resolve to make his life miserable, the husband also initiated some legal proceedings and was living separately from the wife for more than ten years. Thus, it was evident from the facts of the case that the marriage has been wrecked beyond redemption.

The trial court had held that the allegations were of such nature that there was no cordiality left between the parties and thus no possibility to reconnect the chain of marital life between them. Hence, it found that there was no alternative but to dissolve the marriage. Though the High Court took the stand that the trial court had erred in granting a divorce, the Supreme Court upheld the trial court’s decision that the matrimonial bond is beyond repair.[9] “When the marriage becomes a fiction, the legal tie has to be severed.”

 

Can it be a ground for divorce?

In the case of Vishnu Dutt Sharma v Manju Sharma[10], It was submitted on behalf of the husband that the Supreme Court had, in earlier cases, dissolved a marriage on grounds of irretrievable breakdown. The court observed that the earlier cases had not taken into account the legal position as laid down in Section 13 of the Act.[11] The judgment held that a mere direction of the court in earlier cases, without considering the legal position, was not a precedent to be followed by the courts. The court observed that the granting of the divorce on grounds of irretrievable breakdown would mean adding a clause to Section 13 of the Act through a judicial verdict. 

It held that adding a new clause making irretrievable breakdown of marriage grounds for a divorce could only be done by the legislature, not by the courts. Taking this into consideration, the Supreme Court rejected Sharma’s plea for dissolution of the marriage on grounds of irretrievable breakdown of marriage.[12] The court further said that though the irretrievable breakdown of marriage was recognized in Neelu Kohli’s Case, the divorce was granted on grounds of cruelty.

 

The legislature does not make laws every day, but the courts hear cases…

The Indian judiciary keeping due regard to the nature of marriage under Indian personal laws and relying on developments of the concept of divorce though has recognized irretrievable breakdown of marriage, but it still can’t be exercised as a ground to get a divorce as it lacks legislative recognition. With the rapid changing social scenario of the country, marked by the spread of Western ideals and adoption of different outlook towards the institution of marriage, irretrievable breakdown of marriage is a progressive change to the field of personal laws. The impact of not having it as a ground for divorce in the country must be a thing to be looked for with concern in our country.

 

 

 

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Footnotes

[1] Justice Krishna Iyer, Aboobacker v. Manu, AIR 1971 KLT 663

[2] Paras Diwan, Family Law, 6^th Edition, 2001

[3] [1969] 1 WLR 393, CA; both the parties to the marriage had committed adultery. Thus the court on the wife’s petition observed breakdown of marriage and granted a divorce.

[4] [1943] AC 517, HL

[5] Paras Diwan, Modern Hindu Law, 17^th Edition, 2006, pp. 68-77

Vijender Kumar, Irretrievable Breakdown of Marriage: Right of a Married Couple, Vol.5: No.1, NALSAR Law Review, 15, 2010

[6] Paras Diwan, Family Law, 6^th Edition, 2001, pg. 29

[7] Paras Diwan, Family Law, 6^th Edition, 2001

[8] AIR 2006 SC 1675

[9] Jaya V.S., Irretrievable Breakdown of Marriage as an Additional Ground for Divorce, Vol. 48: 3, Journal of Indian Law Institute,  439, Pg. 440, 2006

[10] Civil Appeal NO. 1330 OF 2009, Supreme Court of India

[11] http://infochangeindia.org/women/judicial-interventions-and-women/sc-flip-flops-on-irretrievable-breakdown-of-marriage.html

[12] Supra Note 10