Modern life has become complex with the fast-growing socio-economic changes with the disintegration of family structure, urbanization, with the progress of women and with the enactment of new laws. Now the concept of marriage has changed with the advancement of socio-economic conditions and the spouses becoming more independent.

In the past divorce has been condemned as an evil and union of two people has always been regarded as an indissoluble and sacred union. Earlier divorce was granted under extremely limited grounds and was quite inflexible. Under Hindu law, divorce was quite unknown and now we are heading towards granting of divorce on the ground of irretrievable breakdown of marriage. Under the Hindu Marriage Act, 1955 both the spouses are given the right to dissolve the marriage on several grounds as listed in Section 13.

There has been substantial modification of divorce laws all over the world including India. The legislature has made efforts to widen the grounds of divorce to make it more readily available. However, irretrievable breakdown has not been enumerated as a ground for divorce under Section 13 of the Hindu Marriage Act, 1955. Irretrievable breakdown of marriage occurs when there are no hopes of reconciliation and hence, should be dissolved at the instance of either party irrespective of the 'fault' or 'innocence' of the petitioner or respondent.

The marriage is dissolved for the common benefit of the spouses and to prevent further misery. It has been recognized as a separate ground for divorce in many countries. The concept was first introduced in England under the Divorce Reform Act, 1969. The 71st Law Commission Report has also recommended for the insertion for such a ground of divorce. Hence, there is no statutory law which recognises irretrievable breakdown of marriage as a ground for divorce.

This essay seeks to analyse what irretrievable breakdown of marriage is, the benefits of such a ground, the Law Commission Report's recommendations and safeguards, important case laws, legal position, judicial attitude and how the current law stands today. This essay will end with a conclusion.

The Evolution of Grounds for Divorce

The Hindu Marriage Act, 1955 grants divorce and other matrimonial reliefs. Divorce is obtained by either spouse on grounds of impotency, cruelty, conversion, desertion. Wives are given additional grounds for obtaining divorce acts of sodomy, rape, bigamy, bestiality on the part of husband. Most of the grounds of divorce are fault-based or on guilt theory. According to this theory, marriages can be dissolved if one spouse has committed a matrimonial offence which is recognised as a ground for divorce.

There has to be concrete instance of human behaviour to nullify the marriage. Breakdown of marriage occurs when a spouse has not been heard of as being alive for seven years or more which involves no element of fault. In 1964, an amendment took place which replaced clauses (viii) and (ix) with Section 13(1A) furthered breakdown theory of marriage allowing the party against whom decree was passed to apply for divorce.

This was initiated to prevent marriages from getting stuck in a state of uncertainty. In Madhukar v Saral, it was remarked that the enactment of section 13(1A) was beneficial for parties where a breakdown has occurred to prevent them from being tied down in each other. According to the court, this section would help parties to remarry, live a respectable life and move on.

In 1976, 13B was inserted as a new section in the Hindu Marriage Act, 1955 which allows divorce on mutual consent. This is consent theory of divorce. This further recognises the theory of breakdown of marriage. This ground was introduced in 1988 in Paris Marriage Law and in 2001 in the Indian Divorce Act, 1869. In divorce by mutual consent both parties have to give consent to end the marriage. This becomes problematic when a spouse withholds consent in in a divorce despite the marriage being unworkable. Both parties have to cooperate. Mutual consent isn't always possible and unfortunately, the marriage continues to subsist in the eyes of law.

For instance, in Gulabrai Sharma v Pushpa Devi, the marriage had failed and the wife's desertion couldn't be proved. Hence, the divorce sought by husband couldn't be granted. In such situations, divorce by mutual consent is an unsatisfactory ground which binds both the spouses together in a marriage which is dead but continues to exist legally. In Angrez Kaur v Baldev Singh, the marriage was a total failure and simply existed in paper. Both parties were married for 29 years and were living for 15 years separately. They stated they could not live together any longer. The High Court didn't grant divorce as the husband couldn't prove any statutory ground. Instead, alternate relief of judicial separation under Section 13-A was granted.

As divorce by mutual consent has been recognised, irretrievable breakdown should also be made a ground for divorce by amending the law. This would make the task easier for the courts by simply interpreting the section.

What is Irretrievable Breakdown of Marriage?

Marriages are usually based on sound understanding between the spouses. When the understanding is missing, consequently the marriage becomes dead both emotionally and physically, and alas, the marriage has broken down irretrievably. Both spouses can't live with each other in such a situation and a feeling of bitterness and tension sets in. It usually occurs when neither party is at fault. The court should in such cases dissolve the marriage as it serves no purpose and both spouses can start a new life after the dissolution.

A decree of divorce should be granted for the best interests of the spouses and society. The logic of irretrievable breakdown is that what could not be mended should be ended. Irretrievable breakdown of marriage is a ground which the Court can examine and if the Court, on the facts of the case, comes to the conclusion that the marriage cannot be repaired or saved, divorce can be granted. The grant of divorce is not dependent on the volition of the parties but on the Court coming to the conclusion, on the facts pleaded, that the marriage has irretrievably broken down.

Let's look at a hypothetical scenario. A and B had married in 1990. After 3 months of living together, they started living separately. The period of separation lasted 15 years. There were efforts by the spouses' parents to bring in reconciliation between the two. Mediation and counselling were initiated but no solution was reached. Mutual hatred and dislike continued to pervade between the parties.

The parties could no longer live together and the marriage had broken down. B, the husband, sought to divorce his wife and filed an appeal in the court. However, the wife withheld her consent to end the marriage and expressed her consent to continue the marriage. Both parties made allegations and counter-allegations against each other and blamed each other for the breakdown of marriage.

In a case such as this, obtaining divorce becomes very difficult due to the absence of a provision permitting irretrievable breakdown and the absence of fault on both the sides. In the aforementioned case, the relationship between A and B has clearly deteriorated and the marriage is a dead letter. Many years are spent in litigation and no workable solution exists in sight. Many courts refuse to grant divorce and meaningful relief by being tied down to the technicalities of law.

Courts usually take into account factors such as cruelty, impotency and other technical faults as listed in Section 13 to grant divorce. In the absence of any clear fault, courts are generally hesitant to grant divorce. In the presence of fault of both parties, the clean hands doctrine of equity comes into the picture. The argument is that courts refuse to grant divorce on vague grounds to protect the 'sanctity' of marriage.

However, recently, there has been shift in the attitudes of judiciary allowing divorces on more liberal and realistic grounds. Court usually grants divorce in such situations by exercising its plenary powers under Article 142 of the Constitution and thereby, doing complete justice.

Law Commission Reports

The Law Commission of India in its 71st Report titled The Hindu Marriage Act, 1955 - Irretrievable Breakdown of Marriage as a Ground of Divorce strongly recommended amendments in the Hindu Marriage Act to make irretrievable breakdown of marriage as a new ground for granting divorce among the Hindus. It also suggested introduction of breakdown theory in addition to guilt or fault-based theory. It was a very comprehensive record which was chaired by Shri Justice H.R. Khanna. According to this report, separate living for 3 years would be an indication of breakdown of marriage. Certain safeguards were also suggested to check unbridled divorce.

In 1981, a bill was introduced to introduce irretrievable breakdown of marriage as a ground for divorce but it didn't get enough support.

In the 217th report, the Law Commission examined several judgements of the Supreme Court and High Court and once again took the view that irretrievable breakdown of marriage should be incorporated as another ground for granting divorce under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. The ruling in Naveen Kohli v Neelu Kohli was taken into account in which the Supreme Court recommended the Union of India to incorporate irretrievable breakdown of marriage as a ground for divorce.

On the recommendation of the Law Commission report, the Marriage Law (Amendment) Bill, 2010 and Marriage Laws (Amendment) Bill, 2013 were introduced.
The UPA government had introduced the Marriage Laws (Amendment), Bill proposing amendments to the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 to make 'irretrievable breakdown of marriage' a ground for divorce.

The Bill was passed in the Rajya Sabha but it couldn't be taken up for discussion in the Lok Sabha. The government was having second thoughts about the bill because it would have negative implication on the society. Many organisations such as Save Indian Family and Centre for Reforms were protesting against the bill as it would lead to erosion of the foundation of marriage and would lead to a rise in live-in relationships, litigation and crime. Hence, the bill was dropped and thereby, never passed by both the houses.

The current position is that divorce cannot be granted under simple breakdown of marriage in any of the personal laws. In Muslim law, however, husband can give talaq to his wife under breakdown theory and the wife too can claim divorce for consideration as a matter of right and on the husband's refusal, she can approach the court.

Currently, we are heading towards irretrievable breakdown of marriage due to the changing trends in society.

Judicial Approach
Courts are now granting divorce on more liberal and realistic grounds where settlement and reconciliation are not possible.

Aboo Baker Haji v Mamu Koya was a case which involved Muslim parties where both spouses were leading an unhappy life with a son born out of wedlock and the wife filed a plea for divorce on vague grounds of cruelty and the husband filed a suit for restitution for conjugal rights. The Court came to the conclusion that there was clear evidence of breakdown of marriage and divorce was granted. Amma Khatoon v Kashim Ansari was another case where the Jharkhand High Court dissolved the marriage on the ground of irretrievable breakdown by invoking 2(ix) of the Dissolution of Muslim Marriages Act, 1939.

In Ms. Jorden Diengdeh v. S. S. Chopra, the Supreme Court observed that it was 'necessary to introduce irretrievable breakdown of marriage and mutual consent as grounds of divorce in all cases.' The legislature should intervene in such cases to provide a uniform code for marriage and divorce (Article 44) and a solution for couples to walk out from an unhappy union.

The Supreme Court held:
In the instant case, the marriage appears to have broken down irretrievably. If the findings of the High Court stand, there is no way out for the couple. They will continue to be tied to each other since neither mutual consent nor irretrievably break-down of marriage is a ground for divorce, under the Indian Divorce Act. There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. The parties are bound together by a marital tie which is better untied.

V. Bhagat vs D. Bhagat was another case where the marriage had practically broken down and there was no chance of both of the parties living together. The petitioner, the husband, had initially filed for divorce on the grounds of adultery and later added cruelty. The wife denied the allegations and made counter-allegations against the husband calling him a lunatic. The husband's petition was pending for 8 years and several years were spent in litigation and rancour.

The High Court dismissed the appeal and a special leave petition was filed in the apex court. According to the court, marriages are usually made in heaven but this has turned into 'hell' for sure. The Court came to the conclusion that the marriage had broken down irretrievably and despite this, the wife wanted to live with the husband to make the petitioner's life more miserable. Although the allegations made by petitioner against the wife were not proved, the court granted divorce based on the peculiarities of the case and in the best interests of the parties.

In Chandrakala Trivedi v SP Trivedi, the court observed that the marriage was practically dead.
Kachan Kumar v Promod Kumar was a landmark divorce case where the marriage had irretrievably broken down and there was no possibility of reconciliation. The Supreme Court exercised its powers under Article 142 of the Constitution and granted a decree of divorce. By invoking Article 142, the Supreme Court has power to pass any decree or order to bring about complete justice in any case or matter pending before it.

Similarly, in AVGV Ramu v ASR Bharathi (2017), both parties entered into a Memorandum of Understanding (MOU) to end the marriage by mutual consent and was signed by both. However, the wife didn't appear in the Family Court and withheld her consent in the High Court. The Supreme Court invoked its powers under Article 142 of the Constitution as the parties were living apart for 4 years and the wife didn't deny her signature on the document.

The marriage was considered to be broken and dead. Since only the Supreme Court can invoke its powers to do 'complete justice' under Article 142, High Courts have often declined to dissolve marriage on the ground of irretrievable breakdown. Recently, however, there have been cases where the High Court too is granting decrees on the ground when there's complete breakdown.

Krishna Banerjee v BB Bandyopadhay and Durga Prasanna Tripathi v Arundhati Tripathi are cases where the spouses had been living apart from each other for more than a decade and the courts observed that the marriage had broken down and granted them divorce.

Many courts have however, held the view that irretrievable breakdown of marriage cannot be viewed as a magic spell to end a marriage where concrete reasons for divorce are not proved. For instance, in Geeta Mullick v. Brojo Gopal Mullick, decree of divorce was not granted by the Calcutta High Court because the guilt or fault was not proved.

In Savitri Pandey v Prem Chandra, the Court observed that when a party makes averments or takes advantage of his or her wrongs then the Court will not invoke its jurisdiction to dissolve the marriage. A spouse cannot dissolve marriage on his or her whims and fancies.

There are cases such as Anita Kachha v KR Kachha where the allegation made by the spouse is not proved but divorce was granted as the spouse had married again and hence, it was a clear indication that the marriage had irretrievably broken down.

However, there have been cases where irretrievable breakdown as a ground was misused by a spouse. For instance, in Yashwant Kumar v Kunta Bai, the husband developed an extra-marital affair and consequently, he kicked out his daughter and wife from the house and filed a petition for divorce on the ground of irretrievable breakdown of marriage. The court accordingly dismissed his plea as the wife was not at fault and such matters couldn't be taken lightly.

Similarly, in Darshan Singh Gupta v Radhika, the husband inflicted psychological, physical and emotional torture on his wife and then unsuccessfully filed a divorce petition on the ground of irretrievable breakdown of marriage. Husbands cannot take advantage of their irresponsibility and faults. Due to such conduct, many groups are against this provision as the wife would face a disadvantage especially financially. However, as times are progressing and both spouses are becoming more independent, this provision has been receiving more support when marriages become practically unworkable.

Naveen Kohli v Neelu Kohli: A Landmark Case

In Naveen Kohli v Neelu Kohli, the Supreme Court strongly recommended the amendment of the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for divorce.

The facts of the case are as follows. The Appellant, Naveen Kohli, wed the Respondent, Neelu Kohli and had three sons during the course of the marriage. Gradually, the relationship soured. The Respondent started filing complaints under the Indian Penal Code and many civil suits against the Appellant. The Appellant eventually filed a suit for divorce in the Family Court. Before the Family court, both parties made allegations and counter-allegations against each other.

The Family Court granted divorce to the Appellant on the ground of cruelty against the Respondent under Section 13(1) (i-a) of the HMA but found the allegation of adultery baseless and unproved. The Family Court realised that reaching towards an amicable settlement was impossible due to the mutual hatred and animosity between the two. It ordered the husband to pay Rs. 5,00,000 towards the wife as permanent settlement and passed the decree. The husband, being unhappy with the decision, appealed to the High Court against the judgment of the Family Court. The High Court upheld the Respondent's allegations pf adultery against the Appellant and denied divorce on the ground that the husband had arrived with 'unclean hands.'

Aggrieved by the decision of the High Court, the husband appealed to the Supreme Court by filing a Special Leave Petition (SLP).

The Supreme Court considered the special leave petition and the judgement was delivered by Justice Dalveer Bhandari on behalf of the three judge bench. The Supreme Court delivered the judgment based on two issues of cruelty and the concept of irretrievable breakdown of marriage. It agreed with the Family Court that Respondent's behaviour constituted cruelty. The Court examined various cases of cruelty which differed from case to case.

The Court also took into account the concept of irretrievable breakdown of marriage in light of the circumstances of the case. The parties had been living apart for a long time and this reflected breakdown of their marriage. Due to changing social structures, many marriages were practically dead and divorce couldn't be granted due to absence of any fault. The Court strongly recommended incorporation of this concept by referring to three sources.

When marriage is beyond repair, it would be more beneficial to dissolve the marriage as it didn't serve any social purpose and was harmful for both the parties. By evaluating the facts of the case, the court took account of the Respondent's behaviour and her refusal to give divorce on the ground of mutual consent, the period of separation and litigation, concluded that they couldn't reconcile. The Supreme Court set aside the judgment of the High Court and directed the Appellant to pay permanent maintenance to the Respondent. Lastly, the Court directed the Legislature to add irretrievable breakdown of marriage in the HMA.

This is not a landmark judgment as the Apex Court had made a similar recommendation in Ms Jorden Diengdeh v S.S. Chopra. Despite many recommendations by the Law Commission and the Supreme Court, the Legislature has turned a blind eye to the status quo and has refused to add this provision in the HMA. Due to this, the Supreme Court uses Article 142 to dissolve such marriages where one party is unwilling to dissolve the marriage even if the marriage is unworkable.

The Need for Irretrievable Breakdown as a Ground for Divorce
When there's a matrimonial relationship where parties can't live peacefully and when wedlock becomes deadlock , the best option would be to dissolve the marriage. There have been several cases where parties are living separately for a very long period of time and where one party withholds consent to give divorce to harass the other spouse ultimately denying relief to the other spouse who wants to leave the marriage and start a new life.

In the interest of justice, decree of divorce should be granted without much fuss where reunion and reconciliation become impossible. In Vinita Saxena v Pankaj Pandit, both the parties stayed together for only five months and lived in separation for over 13 years. The marriage wasn't consummated either. The wife filed a divorce petition against the husband on the ground of cruelty and insanity.

The Trial Court and High Court turned down her divorce petition. The Supreme Court dissolved the marriage holding that there was great miscarriage of justice by the lower courts by rejecting her petition and by overlooking the fact that the relationship between the two had become dead with no possibility for reconciliation and the marriage would be detrimental for the wife. Decree of divorce was granted in the favour of the wife. The 71st law Commission report had also recommended that 3 years of separation or more should be considered as a good ground for divorce.

In the present situation, divorces are usually granted on the basis of a clear matrimonial offence. However, as we have seen several cases where marriage simply exists on paper and where there is no fault of both parties and the period of separation has given arise to irreconcilable differences, it would be better to dissolve the marriage than prolong the sufferings and misery of the spouses. Divorce shouldn't be denied in such cases and should be seen as a solution where both parties can start a new life.

However, the incorporation of irretrievable breakdown of marriage may potentially open the floodgates of litigation where divorces may be granted on trivial grounds. The second potential problem is that women who are not financially independent or at a disadvantageous position may suffer the brunt of this due to the patriarchal society.

The legislature should introduce irretrievable breakdown of marriage as a ground for divorce under Section 13 of the Hindu Marriage Act, 1955 with adequate legal safeguards to protect women's interests and taking account of the condition of women who are not financially independent.

Conclusion
As divorce laws are becoming more flexible and liberalised as times are changing, irretrievable breakdown of divorce should be introduced to liberate parties who are in an unworkable relationship. Mutual consent is not enough as one spouse might withhold consent to harass the other spouse. High Courts and lower courts have often denied to give divorce in the absence of matrimonial fault being tied to the technical legal facets of the laws.

In such cases. Effective relief is denied to the parties who are compelled to stay in a dead marriage. Many recommendations have been given to introduce such a provision and the time has already come to make this recommendation into a reality. Hence, inclusion of such a provision should be initiated by the legislature along with safeguards to ensure that it will not be misused and to prevent exploitation of any party.

Law Commission Reports:

• The 71stLaw Commission Report
• The 217thLaw Commission Report

Books

• Professor Kusum Family Law 1 Lectures (2021).
• Dr Paras Diwan Family Law

Journal Articles

• Irretrievable Breakdown Of Marriage: A Ground For Divorce Author(s): Kusum
  Source: Journal of the Indian Law Institute, April-June 1978, Vol. 20, No. 2 (April- June 1978), pp. 288-303
  Published by: Indian Law Institute
   
• Irretrievable Breakdown Of Marriage As An Additional Ground For Divorce
  Author(s): Jaya V.S.
  Source: Journal of the Indian Law Institute, July-September 2006, Vol. 48, No. 3 (July- September 2006), pp. 439-444
  Published by: Indian Law Institute
   
• Naveen Kohli v. Neelu Kohli, (2006) 4 S.C.C. 558
  Author(s): Suchita Saigal and Uttara Gharpure
  Source: Student Bar Review, 2006, Vol. 18, No. 2 (2006), pp. 113-124 Published by: Student Advocate Committee

Cases:

1. Saroj Rani v Sudarshan Kumar
2. V. Bhagat vs D. Bhagat
3. Chanderkala Trivedi vs S.P. Trivedi
4. Kanchan Devi v Promod Kumar
5. Sanghmitra Singh v Kailash Chandra Singh
6. Ms. Jordan Diengdeh vs S.S. Chopra
7. Naveen Kohli v Neelu Kohli
8. Savitri Pandey vs Prem Chandra Pandey
9. Vinita Saxena v Pankaj Pandit
10. Samar Ghosh v Jaya Ghosh
11. Sanghamitra Ghosh vs Kajal Kumar Ghosh
12. Swati Verma v Rajan Verma
13. Dr. Kiran Singh D/O Birendra Kumar vs Dr. Shiv Kumar S/O Sunder Lal

Written By: Dhriti Bhadra