Irretrievable Breakdown of Marriage

Introduction 

Marriage, traditionally viewed as a sacred union of two souls, has evolved into a contractual relationship in modern society. When this contract fails and the relationship deteriorates beyond repair, the question arises: should the law force two unwilling parties to remain bound in matrimony? This article explores the concept of "Irretrievable Breakdown of Marriage" as a ground for divorce in India, examining its legal status, judicial interpretations, and the ongoing debate surrounding its formal recognition. 

Irretrievable Breakdown of Marriage 

Defining the Concept: 

• According to the 71st and 217th Law Commission Reports of India, Irretrievable Breakdown of Marriage is defined as: 
  • "Such failure in matrimonial relationship or such adverse circumstances to relationship that no reasonable probability remains for spouses living together again as husband and wife." 
• In simpler terms, this refers to a marriage that has broken down so completely that the relationship cannot be salvaged or retrieved. It represents a point in time when the marriage, though legally valid, has effectively ended in practical and emotional terms. 

Origin: 

• This concept was originated in New Zealand in 1921 through the historical decision in Lodder v. Lodde.

Irretrievable Breakdown Theory 

• An irretrievable breakdown of marriage is defined as a failure in the matrimonial relationship where no reasonable probability remains for the spouses to live together as husband and wife. 
• There is currently no explicit legislative provision in India relating to this theory of divorce. 
• The Supreme Court has evolved grounds for granting divorce based on irretrievable breakdown, considering factors such as: 
  • Duration of cohabitation 
  • Time since last cohabitation 
  • Allegations made by parties against each other 
  • Orders passed in legal proceedings between the parties 
  • Attempts made for dispute settlement by family 
  • Separation period exceeding 6 years 
• The Law Commission of India, in its 71st report (1978) and a 2009 report, recommended adding irretrievable breakdown as an additional ground for divorce. 
• New Zealand pioneered this concept in 1920, allowing divorce petitions based on a three-year or more separation agreement. 
• The Hindu Marriage Act 1955 (HMA) currently does not recognize irretrievable breakdown as a ground for divorce. 
• Under the HMA, divorce by mutual consent requires a joint petition, a one-year separation period, and a mandatory six-month waiting period between two motions. 
• The theory posits that when a marital relationship deteriorates beyond reconciliation, the marriage should be terminated. 
  • It argues that maintaining shared rights and responsibilities is unjustified when a marriage cannot endure.

Irretrievable breakdown of marriage under HMA 

• Irretrievable breakdown of marriage is not explicitly recognized as a ground for divorce under the Hindu Marriage Act,1955(HMA). 
• The concept was first acknowledged by the Supreme Court in Saroj Rani v. Sudarshan Kumar Chadha,1984 suggesting that divorce may be granted when a marriage has broken down beyond repair. 
• However, subsequent cases like Amarendra N. Chatterjee v. Smt. Kalpana Chatterjee (2022) clarified that courts cannot grant divorce solely on this ground due to lack of statutory provision. 
•  In Apurba Mohan Ghosh v. Manashi Ghosh (1988) the court held that relief can only be granted on statutory grounds mentioned in the Act, as per Section 23. 
•  V. Bhagat v D. Bhagat (1993) affirmed that irretrievable breakdown alone is not a ground for divorce but may be considered when scrutinizing evidence for statutory grounds. 
•  The Law Commission has proposed including irretrievable breakdown as a ground for divorce, but the legislature has not adopted this recommendation. 
•  In Ms. Jorden Diengdeh v S.S. Chopra (1985) the Supreme Court recommended comprehensive reform of marriage laws, including introducing irretrievable breakdown as divorce ground. 
• Justice V.R Krishna Iyer explained the concept as recognizing the factual breakdown of a marriage when incompatibility becomes insurmountable. 
• Currently, courts may consider irretrievable breakdown as a factor, but cannot grant divorce solely on this basis without meeting other statutory requirements. 

Legal Provision of the Irretrievable Breakdown of Marriage 

• The principle has gained informal validity through its application in several judicial decisions granting divorce. 
•  While not yet incorporated into the Hindu Marriage Act, it has been strongly recommended by various Law Commission Reports. 
• The Marriage Laws (Amendment) Bill, 2010 was presented in Parliament, aiming to formally introduce this ground for divorce. 
• Article 142 of the Constitution of India, 1950 empowers the Supreme Court to grant divorce on this ground using its discretionary powers. 
  • Under Article 142, the Supreme Court can consider factors such as reason for separation, duration of separation, and other relevant circumstances when granting divorce on this ground. 
  • Article 142(1) allows the Supreme Court to pass decrees or make orders necessary for doing 'complete justice' in any cause or matter. 
  • The exercise of power under Article 142(1) must be based on fundamental general and specific public policy considerations. 
• The application of this principle must align with fundamental rights, secularism, federalism, and other basic features of the Constitution. 
• The concept can be applied if there is no express pre-eminent prohibition in any substantive law against it. 
• While not statutory grounds, courts have interpreted existing grounds for divorce in light of irretrievable breakdown in certain cases.