Author: Kritika Shaw, Bba.llb, 4th year, ICFAI University, Dehradun
*Author has written this article while pursuing training program on article writing by indianlegalsolution.com
INTRODUCTION AND CONCEPT
Irretrievable breakdown of marriage is now taking a huge pace in today’s world. Irretrievable breakdown of marriage under Hindu marriage act, 1955 means a marriage which is completely broken and which cannot be retrieved back to what it was. The parties to marriage feel that there is nothing left in between them to continue as a couple. It is known as a ‘no-fault divorce since in this none of the parties are at fault. In India, the parties to the marriage must prove that they have not cohabited for a long time in order to claim that their marriage has been irretrievably broken down. The supreme court in the case of Naveen Kohli versus Neelu kohli recommended the union of India to seriously include irretrievable breakdown of marriage as a ground for divorce for the marriages which cease to exist in substance and reality and no point is left to deny the divorce.
IRRETRIEVABLE BREAKDOWN OF MARRIAGE AS A GROUND OF DIVORCE
The law commission in amendment 71 introduced the provision of irrevocable divorce as a reason for divorce under section 13C in the Hindu marriage law, 1955 which stated:
The essence of the proposal is that a Hindu marriage should be allowed to be dissolved if the husband and wife were living apart for a period of 5/10 and the marriage was dissolved irreparably due to disagreements, personal conflicts, or similar reasons, as permitted under many legal systems of developed countries.
It is important to file for divorce for this reason:
1. Divorced people must prove that they have been living for 5 years apart, which means they have not lived together and are doing the same thing.
2. Satisfying the court that their marriages have been dissolved and that no mediation or reconciliation can restore their marriage.
In A.Jayachandra v. Aneel Kaur, the Supreme Court considered such cases. And after a discussion of facts it is concluded as follows: When the defendant prioritizes his or her husband’s liberty he or she unquestionably points to disputes, spreads and divisions of marital unity, in which case the Court may decide an irrevocable divorce. The Court found that the marriage was irreparably dissolved and gave her a divorce. This is so strange that, in many cases, the court, instead of issuing a divorce decree ordering the reinstatement of marital rights holding the concept of a Hindu marriage as sacred as the law of restitution.
A bench of Justices Sanjay Kishan Kaul and KM Joseph issued a ruling on this after finding that the Supreme Court had previously used its natural power under Article 142 of the Indian constitution to grant a divorce on the grounds of irrevocable divorce. Moreover, the Court noted that this was done not only in cases where the parties finally, before this Court, agreed to do so but in another way.
It was said,
There is, therefore, the realization of the futility of a completely failed marriage is carried out only on paper. In many cases, when a marriage is found to be a dead letter, the Court has exercised its supreme authority under Article 142 of the Indian Constitution to repeal it.
Quoting the judgment of R. Srinivas Kumar v. R. Shametha, Bench added a warning that such power should not be used frequently. However, the same can be requested in rare cases, due to the absence of a law in this case, where it is found that the marriage is completely ineffective, spiritually dead, no longer redeemable and irreparably dissolved.
Stress and a barrier to move on: The idea here is that cohabitation should not be considered as such an important part of this ground as it can cause frustration among the parties to carry the baggage of their broken marriage just for the sake of proving it in the court as irretrievably broken down. The parties to a marriage may know better about their marriage and then only they might have resort to this ground for divorce with mutual consent so, the more prolonged it is the more it causes frustration and stress to the parties. For example, if the parties have been living separately for, 2 years and now want to individually move on with someone else in life as a couple so, they cannot move on until their marriage has been dissolved which requires more than 3 years to legally end their marriage according to Hindu law. Therefore, this requirement of 5 years prohibits the parties from marriage to move on in their individual lives the way they want to become a barrier to their right to life and liberty under article 21 of the constitution.
Injustice: The parties to a marriage can also take the advantage of this section for seeking a divorce more easily since the essential to this section is that there should be no cohabitation for a minimum of five years. For example, if the husband works in a different city or country then the marital one indulges in an extramarital affair at that place without letting his wife know anything and comes back after five years claiming that their marriage has been broken down irretrievably. Under such circumstances usually, the wife may agree to it thinking she was not capable enough to keep her husband happy thinking of him being a hardworking man devoting his time to the entire family. Therefore, injustice may be done to her in such cases.
The legislature hesitates in enacting such a provision since they fear that such a provision would degrade the sanctity of marriage and divorces would be claimed on trivial issues, which quite remains a possibility, and therefore adequate laws providing such safeguards and protection from hardships needs to be implemented.
1. 71st Law Commission report on The Hindu Marriage Act, 1955- Irretrievable Breakdown of Marriage as a ground of Divorce.
2. 217th Law Commission report on Irretrievable Breakdown of Marriage- Another Ground of Divorce.
3. Indian kanoon
 AIR 2006 SC 1675