Divorce is a dissolution of legal obligations and duties of marriage. The Hindu Marriage Act, 1955 mentions the grounds for the divorce. The 71st Law Commission Report on Hindu Marriage Act 1955 (HMA) has suggested the incorporation of irretrievable breakdown of marriage as a ground of divorce. Irretrievable breakdown of marriage means that where spouses or either of the spouse proves to the court that marriage has broken down such that there is no reasonable chance of getting back together. The concept of irretrievable breakdown of marriage also grants divorce by mutual consent where both the parties believe that marriage is broken.
Irretrievable breakdown of marriage has not been recognized as a ground of divorce yet. It is always believed divorce can happen only when the party is at fault. However, divorce on the ground of irretrievable breakdown cannot be granted if a party is himself or herself at fault. Section 13 of HMA had restricted the ground of divorce to a particular offense or matrimonial disability which causes injustice in cases where none of the parties at fault which divulge the marriage, there can be other reasons or situations in which marriage cannot be worked.
There is a situation where it is hard to maintain marriage when there are no emotional and other bonds which are the essence of marriage has died out. The irretrievable breakdown theory says that when a spouse has reached to level that they put such allegations against each other that marriage seems to be practically dead and it becomes impossible for the parties to live together. In a situation, where the marriage has no substance then divorce should be a solution and a way out from difficult situations. The use of irretrievable breakdown of marriage should only be exercised in exceptional cases which are in the interest of both the parties and their children.
With a change in morals of society and the nature of marriage in society, the Supreme Court has advised making irretrievable breakdown of marriage as a ground of divorce. The court found marriage irretrievably broken down where the respondent gave priority to her profession over her marriage however the court ordered for restitution of conjugal rights because, in Hindu law, marriage is considered sacrosanct.
The court recognized the concept of irretrievable breakdown of marriage however, the court was against the introduction of the irretrievable breakdown as a ground of divorce because the courts were of the opinion that the court can grant a divorce only on the ground mentioned in HMA. The court cannot grant the divorce on the basis of an irretrievable breakdown of marriage unless the legislative body adds it as a ground of divorce under HMA.
The irretrievable breakdown of a marriage can be presumed where couples have been living apart continuously for a long time. The ground of irretrievable breakdown must be substantiated by some tangible presumptive proof. In Sandhya Rani v. Kalyanram Narayanan the parties were living apart for more than three years, the court granted divorce to parties because marriage between the parties has irretrievably broken down and there was no chance of parties to come together. The parties have to satisfy the court with the concrete facts that marriage is irretrievably broken down.
Where marriage is beyond repair, then it will be harmful to the interest of the parties and their children if the legal bound is sought to be maintained despite the fact that emotional bond between parties no longer exists. Not granting divorce in such marriage would further encourage continuous bickering perpetual bitterness and it may lead to immorality. The court by refusing divorce in such marriages does not serve the sanctity of marriage. When there is no way by which spouse can resume their married life then nothing can be gained by trying to keep the spouse’s ties for a long period of time. When the prospect of continuing cohabitation has ceased, then the legal tie between the spouses should be dissolved.
In Naveen Kohli v. Neelu Kohli, the husband was being mentally, physically and financially harassed by wife and both the parties have allegations of character assassination against them but failed to prove allegations. The court held that although the allegation is not proved the efforts had been made towards an amicable settlement that there was no cordiality left between the parties and therefore, no possibility of reconnecting the chain of marital life between the parties. Further, the court suggested the Union of India consider a revision of HMA to incorporate an irretrievable breakdown of marriage as a ground of divorce.
There are some objections raised against the introduction of irretrievable breakdown as a ground of divorce that it allows the spouses or even one spouse to terminate the marriage at will. Also, there is a basic principle that a person cannot take advantage of his or her own wrongs, however, irretrievable breakdown as the ground will authorize the spouse to divorce others after a specific period of time of separation. Therefore, allowing the spouse to take advantage of his or her own wrong.
Various courts are of the opinion that it is difficult to say that spouses would never live together because there is a rift between them and there is no prospect of their living together. The marriage may appear irretrievable to one spouse but not to another spouse. The Government of India, ministry of education and department of social welfare has expressed a concern that granting a divorce on the ground of irretrievable breakdown of the marriage is redundant in the light of the fact HMA has sufficient grounds covering the irretrievable breakdown of the marriage for the purpose of seeking a divorce.
Thus, some courts have deliberated upon the aspect of irretrievable breakdown of marriage as a ground for divorce but there has also been the vast majority of authorities that have criticized the concept of irretrievable breakdown of marriage as a ground of divorce.
According to time and changes taken place in society, the law on divorce should also change. The legislative authority should also consider the welfare and interest of the society so that no one gets affected by the prevailing law. The recognition of the concept of irretrievable breakdown of the marriage is important for safeguarding the right of spouse and their children. Where the marital relationship has reached a level that it cannot be repaired and recovered then the court should grant a divorce for the development and needs of individuals which cannot be fulfilled by living together.
Due to the mental agony and no emotional bond between the spouses, the marriage will not serve any purpose. Modern girl marrying in a conservative family, then the thinking process of the family will be different, the needs of spouses will be different. In such a scenario, none of the party is at fault and in the best interest of parties the decree of divorce should be passed keeping aside the notion of the sanctity of marriage as marriage is not serving any purpose, it is just compelling the parties to live together.
However, the court should only grant the divorce if there is concrete proof that marriage has irretrievably broken down. Therefore, the irretrievable breakdown of marriage should be inserted under the HMA so that no injustice is done to the party who is not faulty on any of the ground mentioned in this Act.