Marriage being regarded as a sacrament under Hindu Law is also believed to be
made in heaven. This leaves one with the question: does the sacramental nature
make it eternal or indissoluble, or do we have a choice to quit in between?
A successful marriage is not defined by merely living together for years but
living together happily. There have been umpteen cases where the couple puts an
effort to grow together yet develops animosity, ultimately leads to separation.
As the socio-economic condition of the spouse improved with the advancement of
society, they also grew to be more self-reliant and independent. They are
willing and ready to live apart rather being tied and living together while
being dissatisfied with their marital relationship. Furthermore, with the steady
progress of education, communication technology, and rising level of
understanding, the societal stigma of divorce is rapidly fading in the current
day. Divorce rules have been noticeably liberalised in line with this shift,
particularly under the Hindu Marriage Act of 1955.
The concept originated in New Zealand in 1921 through the historical decision in
[Lodder Vs Lodder, (1921) New Zealand Law Reports 876] quoted in Jeffries,
embracing irretrievable breakdown as a ground for divorce. If the parties reside
in separation for more than 3 years, it is assumed that the marriage has
irretrievably broken down.
The House of Lords in Blunt Vs Blunt accepted the fact that stretching legally a
broken marriage to the extent that it becomes burdensome, neither benefits the
couple nor serves the public interest.
On May 22, 1969, the General Assembly of the Church of Scotland suggested that
there should be a substitution of irretrievable breakdown in place of
matrimonial offences and exclaimed that continuous separation of at least two
years consequent upon a decision of at least one of the parties of not living
together should act as a sole evidence of breakdown of marriage.
Current Position & Status in India
If in certain circumstances, it is known that there are no prospects of
advancement of the marriage, continuing to drag the marriage legally acts as
cruelty to the spouse. It is only under the Hindu Personal Laws where such
severe restrictions related to divorce exist. Muslim, Parsee and Christian
marriage laws allow divorce more easily. Grounds for divorce are laid down under
Section 13 and 13 (1A) of Hindu Marriage Act 1955.
Furthermore, Section 27 and
Section 28 of Special Marriage Act, 1954 also hold grounds in case of solemnized
marriage. However, these legislations do not contain irretrievable breakdown of
marriage as a ground for divorce. Sections 13 (1-A) and 13-B of the Hindu
Marriage Act, 1955 are considered to be inadequate to counter each and every
situation concerning remedies in marriage. Under the fault grounds of divorce
theory, though the marriage may have been broken down, the parties are expected
or largely compelled to live with each other in the wedlock.
If the marriage has lost the actual substance and sanctity, it is prima facie
that the marriage is totally unworkable, emotionally dead, beyond salvage and
thus, has broken down irretrievably. Historically, divorce grounds are based
upon two theories, mentioned in Hindu Marriage Act, (1) Fault Theory (2) Mutual
Furthermore, the study of the implementation of divorce laws that evolved over
the last few decades indicates that getting a divorce on the mere basis of a
marital ground or on the grounds based on "fault-based theory" recognised by law
is not only time consuming and nerve-racking, but it also includes a huge amount
of both mental and physical agony by inducing harassment and shame on both the
parties. And if, after such a lengthy and exhaustive struggle, the evidence
fails to prove the marital fault, the Petitioner is not only denied the remedy
demanded but it also leads to severed ties between the two parties due to the
allegations and harassment faced due to trials.
Thus, in order to avert such unfortunate circumstances, the Law Commission of
India proposed "irretrievable breakdown of marriage" as a separate cause for
obtaining divorce in 1978. The condition for such a breakdown was established as
a point of separation with very little chance of reunion.
In its 71st Report, the Law Commission of India has firmly recommended that
"irretrievable breakdown of marriage" should be included as a separate ground
for obtaining divorce under the Hindu laws. Further, it also emphasises on the
separation period of around three years as a criterion of breakdown. On the
basis of the Report, the Marriage Laws (Amendment) Bill, 1981 was accordingly
introduced in Parliament but it later lapsed due to the continuous and
persistent opposition it received from few women organisations.
This was followed by the series of large number of debates regarding both
advantages and downsides to determine whether to include "irretrievable
breakdown marriage" as a separate ground of marriage, but ultimately it had to
be withdrawn due to continuous high level of resistance. Though "mutual consent"
as a ground for divorce, on the other hand, has already been included in various
personal laws to give speedy relief to the aggrieved parties to some extent.
The major consideration of the opposition in regard to inclusion of
"irretrievable breakdown of marriage" as a separate ground for dissolution of
marriage is that the ground of "divorce by mutual consent" under the Hindu
Marriage Act already encompasses the arena concerned and the inclusion of the
former ground would only lead to complexity of the system for both the courts
and the pleading parties.
But at this point it should be noted that "mutual consent" as the name suggests,
requires the consent of both the parties. If even one of the parties decides to
not cooperate, the above ground does not hold any validity and even the Courts
do not have any right of imposing the divorce decree on them. While the "irretrievable breakdown of marriage", on the other hand, is a ground for the
Court to consider the stability of the relationship and if the Court determines
on the basis of the facts of the case that the marriage by means cannot be
restored or saved and even if it does get restored it would only hamper the
relation between the parties, then in that case the divorce can be pronounced.
Over the period of time the Supreme Court has indeed granted the remedy
of dissolution of marriage in numerous cases, not merely because of presence
of either adultery, cruelty, or desertion, but also on the mere ground of
irretrievability where the sacred tie of marriage between the two parties had
entirely broken down; lost its trust, love, and care for the opposite parties;
had a severe emotional breakdown; failed to manage their respective feelings;
and lastly when even any other alternate way could not restore or preserve the
Though there is no specific provision for "irretrievable
collapse of marriage", the Supreme Court has, over the period of time, used its
jurisdiction conferred by Article 142 of the Constitution to administer required
absolute justice for the parties in marital procedures. The Court, further, felt
that in extreme instances where the parties are not only involved in accusing
each other, but when the very basis of their marital relationship has collapsed
and cannot be rebuilt at all by any available way, the Court must provide for
the decree of dissolution of marital relations on the grounds of "irretrievable
breakdown of marriage".
Irretrievable breakdown did not go on to formally become law, but acquired
informal validity as a principle evoked in a number of judicial decisions
granting divorces. The resultant legal confusion was one of the main reasons the
Law Commission took up the question again as a suo motu issue, with the 217th
Law Commission of India Report in March 2009 recommending (again) that
irretrievable breakdown be added as a ground of divorce to existing provisions.
In ["Naveen Kohli Vs. Neelu Kohli 2006 (4) SCC 558], the Supreme Court itself
advised the Government to carefully consider incorporating "irreversible
breakdown of marriage" as a reasonable ground for granting divorce under the
Hindu Marriage Act, 1955.
"74. ……Once the marriage has broken down beyond repair, it would be unrealistic
for the law not to take notice of that fact, and it would be harmful to society
and injurious to the interests of the parties. Where there has been a long
period of continuous separation, it may fairly be surmised that the matrimonial
bond is beyond repair. The marriage becomes a fiction, though supported by a
legal tie. By refusing to sever that tie the law in such cases does not serve
the sanctity of marriage; on the contrary, it shows scant regard for the
feelings and emotions of the parties.
85. Undoubtedly, it is the obligation of the court and all concerned that the
marriage status should, as far as possible, as long as possible and whenever
possible, be maintained, but when the marriage is totally dead, in that event,
nothing is gained by trying to keep the parties tied forever to a marriage which
in fact has ceased to exist….
86. In view of the fact that the parties have been living separately for more
than 10 years and a very large number of aforementioned criminal and civil
proceedings have been initiated by the respondent against the appellant and some
proceedings have been initiated by the appellant against the respondent, the
matrimonial bond between the parties is beyond repair. A marriage between the
parties is only in name. The marriage has been wrecked beyond the hope of
salvage, public interest and interest of all concerned lies in the recognition
of the fact and to declare defunct de jure what is already defunct de facto…."
With regards to the current status of irretrievable breakdown of marriage in
India, it can be said that the legislature has failed to include such breakdown
as a ground for divorce, though Supreme Court in various cases like Hon'ble
Supreme Court in [Sanghamita Ghosh Vs Kajal Ghosh (2007) 2 SCC 220]; [Samar
Ghosh Vs Jaya Ghosh, (2007) 4 SCC 511]; [K. Srinivas Rao Vs D. A. Deepa,
(2013) 5 SCC 226]; and [Sukhendu Das Vs Rita Mukherjee, (2017) 9 SCC 632]
utilized its power under Article 142 of Constitution of India and dissolved
considerable marriages on the same ground.
However in a very recent case of [R. Srinivas Kumar Vs R. Shametha, AIR
2019 SC 4919] directed to dissolve the marriage on the ground of irretrievable
breakdown of marriage, in exercise of powers under Article 142 of the
Constitution of India, more.
6..............If both the parties to the marriage agree for separation
permanently and/or consent for divorce, in that case, certainly both the parties
can move the competent court for a decree of divorce by mutual consent. Only in
a case where one of the parties do not agree and give consent, only then the
powers under Article 142 of the Constitution of India are required to be invoked
to do the substantial Justice between the parties, considering the facts and
circumstances of the case. However, at the same time, the interest of the wife
is also required to be protected financially so that she may not have to suffer
financially in future and she may not have to depend upon others.
7. This Court, in a series of judgments, has exercised its inherent powers under
Article 142 of the Constitution of India for dissolution of a marriage where the
Court finds that the marriage is totally unworkable, emotionally dead, beyond
salvage and has broken down irretrievably, even if the facts of the case do not
provide a ground in law on which the divorce could be granted.
Again Supreme Court in [Munish Kakkar Vs Nidhi Kakkar, (2020) 14 SCC 657], had
put an end to the bitter matrimonial dispute which lingered on for two decades
between the parties, holding as under;
14. It is no doubt true that the divorce legislations in India are based on the
'fault theory', i.e., no party should take advantage of his/her own fault, and
that the ground of irretrievable breakdown of marriage, as yet, has not been
inserted in the divorce law, despite a debate on this aspect by the Law
Commission in two reports.
15. We, however, find that there are various judicial pronouncements where this
Court, in exercise of its powers under Article 142 of the Constitution of India,
has granted divorce on the ground of irretrievable breakdown of marriage; not
only in cases where parties ultimately, before this Court, have agreed to do so
but even otherwise. There is, thus, recognition of the futility of a completely
failed marriage being continued only on paper.
20. We do believe that not only is the continuity of this marriage fruitless,
but it is causing further emotional trauma and disturbance to both the parties.
This is even reflected in the manner of responses of the parties in the Court.
The sooner this comes to an end, the better it would be, for both the parties.
Our only hope is that with the end of these proceedings, which culminate in
divorce between the parties, the two sides would see the senselessness of
continuing other legal proceedings and make an endeavour to even bring those to
21. The provisions of Article 142 of the Constitution provide a unique power to
the Supreme Court, to do "complete justice" between the parties, i.e., where at
times law or statute may not provide a remedy, the Court can extend itself to
put a quietus to a dispute in a manner which would befit the facts of the case.
It is with this objective that we find it appropriate to take recourse to this
provision in the present case.
Marriage is indeed considered as a sacrament under the Hindu laws and is
supported very well with the help of legal ties, but by refusing to break those
ties when their binding becomes unbearable, the law in such cases no more
ensures the sanctity of the marriage rather it becomes mere legal obligation for
the parties. It indicates a lack of consideration for the emotions and beliefs
of the parties. Divorce laws protect the parties from such meaningless
obligations by allowing them to break their marital ties. It is pointless to
keep two people bound by a marriage connection if they cannot live peacefully
If we consider various scenarios where the wedlock has broken down because the
parties are living apart, or the wife has only lived in the matrimonial home for
a few months after marriage, or the wife has made mere allegations of cruelty
and desertion against the husband, and the husband has made counter-allegations
against her, or any other scenario where the parties have fallen apart from
their marital relationship and their marriage thus, remains irretrievably
broken, then in these cases, it is in the interest of justice that a decree of
divorce is granted so that both parties can live apart but in peace.
turn a blind eye to miserable situations where one of the spouses finds it
laborious to continue. As is often put pithily, the marriage is merely a shell
out of which the substance is gone. Such a course would encourage continuous
bickering, perpetual bitterness, and may often leads to immorality.
Divorce should not be seen as mere tool of breaking the sacrament ties rather it
should be considered as a solution and majorly an escape route to move out of an
unbearable situation created due to high level of tensions and uncertainty in
the wedlock making it impossible to stay in it. Such a divorce does not concern
itself with the wrongs of the past, but rather with bringing the parties and
children to grips with the new situation and development by working out the most
satisfactory basis on which to regulate their relationship in the changed
Is there any sort of justifiable way in which the parties to the marriage can be
compelled to continue their marital life with the consort after the excess of
the sufferings and the harassment? It is fairly evident that nothing could be
achieved by trying to keep the parties tied forever to a marriage that in fact
has ceased to exist between the parties themselves. Human life has a limited
ability to focus, circumstances causing harassment cannot be permitted to
proceed endlessly. Law cannot deliberately ignore such circumstances, nor would
it be able to decrease to give satisfactory reaction to the necessities emerging
The fact that when a marriage is broken without being able to be revived, it is
quite unrealistic for the law to fail to notice the irretrievable breakdown of
same, which is not only harmful to society but also to the interests of the
parties. Therefore, the Judiciary took the firm stand on considering the
necessity of including irretrievable breakdown of marriage as an independent
ground for divorce and thus, over the period of time has been able to do the
Justice in at least some of the cases, but there still remains the major gap due
to non-existence of legislative wisdom on the same. Since Judiciary is the last
hope for its citizens, it should not shut the doors and should acknowledge that
"No reason to stay is a good reason to go."
Therefore, it is now high time to evaluate and amend the Hindu Marriage Act of
1955 and the Special Marriage Act, 1954, and to take immediate steps to include
the "irretrievable breakdown of marriage" as one of the grounds of dissolving
the marriage between the two parties.
Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of
Email: [email protected], [email protected]