Irretrievable Breakdown of Marriage
It is often said that “Marriage is made in Heaven and solemnized in Heaven.” Marriage is one of the important institutionsof Society. In Hindus Marriage is considered as sacrament which is indissoluble and eternal. In Hindus concept of divorce was not there in starting, Divorce as a concept added in Hindu Marriage Act, 1955 prior to this Act there was no such concept of divorce in Hindus. A marriage solemnized, whether before or after the commencement of the Hindu Marriage Act, 1955 can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act. In Hindus marriage is monogamy in nature.
Section 13 of the Hindu Marriage Act, 1955 provides for the grounds for the Divorce. Section 27 of the Special Marriage Act, 1954 also provides grounds for divorce but it is applicable only if the marriage is solemnized under the said Act.
Irretrievable Breakdown of Marriage is defined as:
“The situation that exists when either or both spouses are no longer able or willing to live with each other, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties.”
Irretrievable breakdown of the marriage is not contemplated as a ground for dissolution of marriage s.13 of the Hindu Marriage Act and as such cannot by itself be taken as ground for decree for dissolution of marriage.Recommendation from Law Commission of India in its various report regarding introduction of irretrievable breakdown of marriage as one of the ground for decree of divorce but parliament till now have not taken into account of all the reports of Law Commission of India.
When the parties to marriage after solemnization of marriage agreed that the institution of marriage has broken, they can file a petition of Divorce in family court.
In Naveen Kohli v. NeeluKohli the Supreme Court recommended to the Union of India to seriously consider bringing anamendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for divorce in thefollowing words:
“Before we part with this case, on the consideration of the totality of facts, this Court would like to recommend the Unionof India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievablebreakdown of marriage as a ground for the grant of divorce. A copy of this judgment be sent to the Secretary, Ministry of Law& Justice, Department of Legal Affairs, Government of India for taking appropriate steps”
Theories of Divorce
Fault Theory – Under the Fault theory or the offences theory or the guilt theory, marriage can be dissolved only when either party to the marriage has committed a matrimonial offence. It is necessary to have a guilty and an innocent party, and only innocent party can seek the remedy of divorce. However the most striking feature and drawback is that if both parties have been at fault, there is no remedy available.
Consent Theory – The consent theory accepts that parties to a marriage could together decide to end the relationship. This is the concept of “divorce by mutual consent.” The procedure for divorce under this theory is that the parties live apart for a specified period of time, and also require that such application be made in two stages, before the divorce is confirmed. Importantly, related but critical issues such as maintenance, distribution of common properties and custody of children are expected to be decided by the parties.
No Fault Theory – The Institution of marriage being distinct as regards its socio-economic and legal footings, it will be unjust if the law ignores the importance attached it.
Irretrievable Breakdown of Marriage comes under No –Fault Theory. When the parties feel that the very foundation of the marriage has breakdown and if they able to pursuit court for their divorce then they can get divorce by Mutual Consent. When there is no scope remains that the marriage can be reconciled then it is advisable to obtain a decree of divorce. This is known as Irretrievable Breakdown of Marriage.
Supreme Court in many cases directs the parliament to take irretrievable breakdown of marriage into consideration.
In Saroj Rani vsSudarshan Kumar Chadha the Supreme Court has first laid down in upholding a decree of divorce following a consent decree for restitution of conjugal rights that it is evident that for whatever be the reasons this marriage has broken down and the parties can no longer live together as husband and wife, if such is the situation it is better to close the chapter.
In Kanchan Devi v. Pramod Kumar Mittal , however, the Supreme Court held:“…the marriage between the appellant and the respondent has irretrievably broken down and that there was no possibility of reconciliation, we in exercise of our powers under Art. 142 of the Constitution of India hereby direct that the marriage between the appellant and the respondent shall stand dissolved by a decree of divorce.
And many more cases Supreme Court pronounce judgment on this concept.
The essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in Life, an experience of the joy that comes from enjoying in common things of the matter and of the spirit and from showering love and affection on one’s offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage ‘breakdown’ and if it continues for a fairly long period, it would indicate destruction of the essence of marriage-‘irretrievable breakdown’.”
In spite of this valuable recommendation of the Law Commission and direction of the Supreme Court no step has yet been taken by Parliament in this direction.
BY: Divyanshu Goyal, MNLU AURANGABAD