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Evolution In Divorce Law: Contemporary Trends In The Concept Of Irretrievable Breakdown Of Marriage

In ancient times, Hindu marriage was considered a sacred and sacramental union. This belief was rooted in the cultural and religious values of the society. The idea was that marriage was a lifelong commitment, and divorce was not commonly accepted. The sacred nature of marriage was emphasized, and people aimed to uphold the sanctity of the marital bond.

The ancient Hindu legal texts, such as the Manusmriti and Dharmashastra, did not explicitly endorse divorce, and the emphasis was on the permanence of marriage. Over the centuries, societal attitudes toward marriage and divorce have undergone changes. In contemporary Hindu societies, divorce is legally recognized and is not uncommon. Hindu Marriage Act, a law enacted in modern India, provides provisions for divorce under specific conditions, mutual divorce and other different theories of divorces.

Applicability of Hindu Marriage Act, 1955

The Hindu Marriage Act, 1955, is a legal framework that governs Hindu marriages in India. Its applicability is primarily to Hindus, defined broadly to include not only followers of Hinduism but also Sikhs, Jains, and Buddhists. The Act applies to Hindus domiciled in the territory of India, as well as to Hindus residing outside India who are subject to the jurisdiction of the Indian courts concerning matters of marriage.

Divorce Under Hindu Marriage Act, 1955

Under section 13 (1) of the Hindu Marriage Act (HMA) of 1955, spouses can seek divorce based on specific grounds defined by the legislation. The grounds for divorce include adultery, where one spouse engages in voluntary sexual intercourse with a person other than their spouse; cruelty, involving physical or mental harm that endangers the life or health of the petitioner; desertion, when a spouse abandons the other without reasonable cause for at least two years; conversion to another religion; unsoundness of mind or mental disorder; and the existence of an incurable form of leprosy or a communicable venereal disease.

Section 13(2) of the Hindu Marriage Act, 1955, outlines specific grounds upon which a wife may seek the dissolution of her marriage through a decree of divorce.
  1. if the husband has remarried before the commencement of the Act or if another wife of the husband, married before such commencement, is alive at the time of the petition's presentation, the wife can file for divorce.
  2. if the husband has been guilty of rape, sodomy, or bestiality since the marriage's solemnization, it serves as grounds for divorce.
  3. if her marriage was solemnized before she turned fifteen, and she repudiates the marriage after turning fifteen but before turning eighteen.
This provision applies irrespective of whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976.

Divorce By Mutual Consent

Section 13B of the Hindu Marriage Act, 1955, which deals with divorce by mutual consent. This provision allows both parties to a marriage to jointly petition the district court for the dissolution of their marriage by a decree of divorce. This applies to marriages solemnized before or after the Marriage Laws (Amendment) Act, 1976.

The grounds for such a petition include living separately for a continuous period of one year or more, the inability to live together, and mutual agreement that the marriage should be dissolved. After the petition is presented, both parties must wait for a minimum of six months but not exceeding eighteen months before making a joint motion to the court.

After the stipulated waiting period, the court is satisfied that the marriage has been solemnized and the allegation in the petition are true, it can pass a decree of divorce, thereby officially declaring the marriage dissolved from the date of the decree. In certain exceptional cases, the court may consider waiving the cooling off period if it is convinced that the marriage has irretrievably broken down and there is no possibility of reconciliation.

In the Case of Amardeep Singh v Harveen Kaur[1], The Hon'ble Supreme Court held that the minimum 6 month cooling down period can be waived off in the case of mutual divorce.

In the case of Vijay Agarwal v. Smt. Suchita Bansal (2023)[2], court held that the period mentioned in Section 13B (2) is not mandatory but directory.

Irretrievable Breakdown of marriage

According to this theory, the dissolution of marriage happens due to failure of the matrimonial relationship. The divorce can be taken by the spouse as a last resort i.e. when both of them are not able to live together again.

The Hindu Marriage Act, 1955, does not explicitly include irretrievable breakdown of marriage as a ground for divorce. The Act recognizes specific grounds for dissolution of marriage under Section 13.

However, the changing dynamics of society and evolving views on marriage have led the Supreme Court to express concern about the absence of irretrievable breakdown as a legal ground for divorce. While the Act doesn't provide for irretrievable breakdown explicitly, the Supreme Court, in exceptional cases, has invoked its inherent powers (Article 142 of Constitution of India) to dissolve marriages to ensure complete justice and alleviate the prolonged suffering of the parties involved.

These instances highlight the court's recognition of the need to address situations where marriages have effectively ceased to exist, even if not covered by the enumerated grounds in the Act.

The courts may take some factors into account when determining whether a marriage is irretrievably broken down.

Each case is unique, and the court considers various aspects to make a fair and just decision. the factors are as follows:

  • Duration of Cohabitation after Marriage: The length of time the parties have lived together after marriage is a crucial factor. A short duration might indicate that the marriage has not had a reasonable opportunity to stabilize or improve.
  • Last Time the Parties Cohabited: The specific date of the last time the spouses lived together can be relevant. A long period of separation without reconciliation attempts may strengthen the argument for irretrievable breakdown.
  • Nature of Allegations Made by the Parties Against Each Other: The nature of the allegations made by each party can provide insights into the level of discord within the marriage. Allegations of cruelty, mental or physical harassment, or other serious misconduct may contribute to the determination.
  • Attempts to Settle Disputes Between the Parties: Courts often consider whether the parties have made genuine efforts to reconcile or settle their disputes amicably. Mediation or counselling attempts may influence the court's decision.
  • A Sufficiently Long Period of Separation: A prolonged period of separation without reconciliation efforts may be a factor. If the spouses have been living separately for an extended period, it may indicate a lack of possibility for reconciliation.
The court has emphasized that the concept of irretrievable breakdown is essential to cover cases where marriages are practically dead, and denying divorce in such circumstances would be unjust. While the Hindu Marriage Act may not have a specific provision for irretrievable breakdown, the judiciary has, in certain cases, exercised its discretionary powers to grant relief based on the principle of fairness and justice.

Recent Developments in Irretrievable Breakdown:

  1. Shri Rakesh Raman Vs Smt. Kavita[3]

    Is Irretrievably Broken Marriage a ground for dissolution of Marriage under Section 13 HMA?

    In a case Shri Rakesh Raman Vs Smt. Kavita, a couple involving who lived separately for 25 years. The court took into account the absence of children from their marriage and the failure of repeated efforts at reconciliation. The observation that both sides have accused each other of desertion and cruelty, coupled with several legal disputes spanning over 25 years, underscores the acrimonious nature of their relationship.

    The court, in its observation, seems to recognize that the marriage has broken down irretrievably and that the legal tie between the appellant and respondent exists only on paper. The emphasis on the absence of peace in their relationship for the last 25 years and the acknowledgment of irretrievable breakdown suggest that the court may have found it just and reasonable to grant a dissolution of the marriage.

    It appears that in this case, the Division Bench of the Supreme Court, consisting of Justice Sudhanshu Dhulia and Justice J.B. Padriwala, recognized irretrievably broken marriage as a ground for dissolution under Section 13(1)(ia) of the Hindu Marriage Act.

    According to the court's observation in this case, when a marriage has irretrievably broken down, involving long separation and the absence of cohabitation, along with multiple court cases between the parties, the continuation of such a marriage could be considered a form of cruelty inflicted by each party on the other.

    This particular judgment seems to reflect a judicial stance recognizing the concept of irretrievable breakdown as a valid ground for divorce under certain circumstances. Legal interpretations may vary, and each case is assessed based on its unique facts and circumstances.
  2. Shilpa Sailesh V Varun Sreenivasan[4]
    Can Supreme Court directly grant a divorce on grounds of 'irretrievable breakdown of marriage'?

    In the Shilpa Sailesh v Varun Sreenivasan case. The Bench held that the Supreme Court can directly grant a divorce on grounds of 'irretrievable breakdown of marriage' to parties who directly approached it, by using the SC's discretionary powers under Article 142 of the Constitution of India to do 'complete justice' it can do so even when the other spouse does not consent to the same.
Section 13B of the Hindu Marriage Act, 1955, establishes the procedure for divorce by mutual consent, incorporating a mandatory cooling-off period of 6-18 months after the joint application for divorce is filed. However, in this ruling by the Supreme Court clarified that, under Article 142, the court is not strictly bound by these procedural requirements.

The court can exercise its discretionary powers and grant a divorce decree even before the completion of the specified cooling-off period. This means that if the joint application is not withdrawn during the stipulated time frame, the court can proceed with the divorce proceedings, irrespective of the initial waiting period.

The Supreme Court, invoking Article 142, has the authority to grant a divorce on the grounds of 'irretrievable breakdown' in the interest of justice, even if one of the parties opposes it. This judgment provides flexibility to the court in handling divorce cases, allowing it to expedite proceedings or grant divorce based on broader considerations of justice, thereby recognizing the evolving complexities of marital relationships.

Ashok Hurra v. Rupa Bipin Zaveri [5]case, where it was held that if no useful purpose, both emotional and practical, would be served in postponing the agony of the parties or their marriage, then the same should be put to a halt. The court, therefore, exercised the power under Article 142(1) to grant a decree of divorce.

The concept of irretrievable breakdown as a ground for divorce marks a significant evolution in family law. Recognizing the dynamic nature of modern relationships, courts have increasingly acknowledged that there are instances where marriages become practically unviable, despite not fitting into the specific grounds enumerated in traditional divorce statutes.

This evolution reflects a judicial response to the changing societal norms and the need for a more nuanced approach to marital dissolution. As seen in various judgments, including those under Article 142, courts now have the discretionary power to grant divorce based on irretrievable breakdown, even if the statutory provisions don't explicitly provide for it. This approach allows for a more holistic consideration of the circumstances surrounding a marriage, ensuring that the legal framework remains responsive to the complexities of contemporary relationships.

  1. 2017 (8) SCC 746
  2. Vijay Agarwal v. Smt. Suchita Bansal (2023) is 2023 (8) ADJ 484
  3. Civil Appeal No. 2012 of 2013
  4. Transfer Petition (Civil) No. 1118 OF 2014 & 2023 SCC Online SC 544
  5. AIR 1997 Supreme Court 1266
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