DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY
2015-2016

FINAL DRAFT FOR

FAMILY LAW
ON

IRRETRIEVABLE BREAKDOWN OF MARRIAGE

As a Ground for Divorce

SUBMITTED TO: SUBMITTED BY :

MR. MAHENDRA SINGH PASWAN ADITYA THAKUR
ASSISTANT PROFESSOR (LAW) ROLL NO: 15
DR. RMLNLU SECTION A
4TH SEMESTER
 TABLE OF CONTENTS
INDEX OF AUTHORITIES ...................................................................................................... III

1. INTRODUCTION .............................................................................................................. 1

2. LEGISLATIVE HISTORY OF ‘I RRETRIEVABLE BREAKDOWN ’ .................................... 2

2.1. ORIGINS IN COMMON L AW ................................................................................... 2

2.2. DEMAND FOR INTRODUCTION IN THE INDIAN L EGAL SYSTEM ......................... 3

2.3. MODERN DEVELOPMENTS .................................................................................... 4

3. JUDICIAL OPINION ON ‘IRRETRIEVABLE BREAKDOWN’ AS A GROUND FOR

DIVORCE ................................................................................................................................ 5

4. NEED FOR LEGISLATIVE REFORM ............................................................................... 9

4.1. THE LEGAL LACUNAE ........................................................................................... 9

4.2. THE SOCIAL COST ............................................................................................... 10

5. OBJECTIONS AND CRITICISM ..................................................................................... 11

6. COUNTER TO CRITICISMS AND SUGGESTIONS ......................................................... 12

7. CONCLUSION ................................................................................................................ 14

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 Index of Authorities
A Jayachandra v Aneel Kumar (2005) 2 SCC 22. ..................................................................... 6
Anil Kumar Jain v Maya Jain (2009) 10 SCC 415. ................................................................... 7
Ashok Hurra v Rupa Bipin Zaveri (1997) 4 SCC 226. .............................................................. 7
Chandralekha Menon v Vipin Menon (1993) 2 SCC 6. ............................................................ 8
Chetan Dass v Kamla Devi (2001) 4 SCC 250. ....................................................................... 12
Darshan Kumar v Radhika Gupta (2013) 9 SCC 1. ................................................................ 13
Dilip Kumar Karmakar v Biju Rani Karmakar, 2004 SCC OnLine Cal 166. ........................... 6
Dr. Smitha v Sathyajith 2009 SCC OnLine Kar 456. .......................................................... 5, 11
Durga Prasanna Tripathy v Arundhati Tripathy (2005) 7 SCC 353. ........................................ 6
Geeta Mullick v Brojo Gopal Mullick AIR 2003 Cal 321. ...................................................... 10
Gulab Rai Sharma v Pushpa Devi 1979 SCC OnLine Del 42. ................................................ 10
Hitesh Bhatnagar v Deepa Bhatnagar (2011) 5 SCC 234. ....................................................... 8
K Srinivas v K Sunita (2014) 16 SCC 34. .................................................................................. 8
K Srinivasan Rao v DA Deepa (2013) 5 SCC 226..................................................................... 6
Kanchan Devi v Promod Kr Mittal (1996) 8 SCC 90................................................................ 8
Lodder v Lodder 1921 NZLR 786. ............................................................................................ 3
Ms. Jorden Diengdeh v S.S. Chopra AIR 1985 SC 935. ....................................................... 3, 4
Naveen Kohli v Neelu Kohli (2006) 4 SCC 558. ....................................................................... 4
Om Prakash Poddar v Rina Kumari AIR 2013 Del 209. ........................................................ 13
Pragati Varghese v Cyril George Varghese AIR 1997 Bom 349. ............................................ 3
Pranjali Prasanna Bingi v Prasanna Anantrao Bingi 2010 SCC OnLine Bom 555. ............... 7
Romesh Chander v Savitri (1995) 2 SCC 7. .............................................................................. 6
Samar Ghosh v Jaya Ghosh (2007) 4 SCC 511......................................................................... 2
Sandhya Rani v Kalyanram Narayan (1994) Supp 2 SCC 588. ................................................ 7
Saroj Rani v Sudarshan Kumar Chadha AIR 1984 SC 1562. ................................................. 12
Satish Sitole v Ganga (2008) 7 SCC 734. .................................................................................. 6
Savitri Pandey v Prem Charan Pandey (2002) 2 SCC 73. ........................................................ 8
Shyam Sundar Kohli v Shushma Kohli (2004) 7 SCC 747. ....................................................... 8
Swati Verma v Ranjan Verma (2004) 1 SCC 123. ..................................................................... 7
T Sareetha v Venkatasubbaiah AIR 1983 AP 356................................................................... 12
V Bhagat v D Bhagat (1994) 1 SCC 337. .................................................................................. 6
Vishnu Dutt Sharma v Manju Sharma (2009) 6 SCC 379. .................................................. 8, 10
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1. INTRODUCTION

The Hindu Marriage Act, 1955 recognizes several grounds on the basis of which divorce can
be granted by courts. The jurisprudence which forms the foundation of these grounds in India
can be broadly categorized in three theories- the fault theory, the frustration of marriage
theory and the consent theory. Most of the grounds mentioned in Section 13(1) and (2) of the
un-amended Act of 1955 were derived either from the fault theory, i.e. cruelty, desertion and
adultery, or the theory of frustration of marriage, i.e. conversion of spouse, disease,
unsoundness of mind etc. However, these grounds were considered incomplete and hence, S.
13B which allows divorce by mutual consent was added via the Marriage Laws
(Amendment) Act, 1976. Thus, the consent theory of divorce was incorporated in Indian legal
framework.

However, although the aforementioned theories are recognized in Indian law, there is a fourth
theory of divorce, known as breakdown theory. Indian divorce jurisprudence is primarily
guided by the fault theory, where the party approaching the court to seek divorce is required
to prove that the other party was at fault and committed a ‘matrimonial offence’ which falls
in one of the pigeon-holes recognized under S. 13. The rationale behind such theory is the
Doctrine of Recrimination according to which no person shall be allowed to gain benefit out
of his own faults. But the defect in the theory of matrimonial fault is that matrimonial
offences are the outcome and are not the cause of a deteriorating marriage.1 Thus a
framework guided by the fault theory often results in a situation where long-drawn legal
battles ensue between the parties and huge volumes of evidences are produced before the
court forcing the Family Court to assume an adjudicatory role quite similar to that of a
criminal judge. This process of seeking divorce leads to wastage of both the court’s and the
parties’ time and resources. Furthermore continuance of divorce proceedings leads to further
detachment of the parties and diminishes the scope of reconcilement between them. Hence,
larger public interest sometimes demands that a marriage which is nothing but a source of
agony to the parties and makes their life a miserable hell must be broken down2

This is where the importance of the breakdown theory creeps in. According to this theory
when the marriage has been reduced to a mere shell and all the substance is gone, and the
spouses are living apart for a considerable period of time and it is found that there is no

1
Law Commission of India, 71st Report.
2
Samar Ghosh v. Jaya Ghosh, (2007) 4 S.C.C. 511.

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chance of reconcilement between the parties, such marriage would be said to be ‘irretrievably
broken down’ and such ‘irretrievable breakdown of marriage’ would be treated as a valid
ground for divorce. The advantage of breakdown theory is that irrespective of the fault of the
parties, the marriage may be broken down by intervention of courts. Utility of this theory
arises when none of the parties is at fault, or the nature of the fault is that the parties do not
want to divulge it, yet the marriage cannot be worked out and no scope of reconcilement is
left. Hence, in these situations it would be better to see divorce as a solution or an escape
route from the problem.3

In light of the above factors, several recommendations have been made by the Law
Commission of India in its 71st and 217th Report advising incorporation of ‘irretrievable
breakdown of marriage’ as a ground of divorce. Yet, no legislative reforms have been
brought about, though the passage of Marriage Laws (Amendment) Act, 2013 by the Rajya
Sabha was a step in this direction. Another interesting development is the manner in which
Indian courts have interpreted and in some instances used the breakdown theory to grant
divorce, in absence of statutory law. There is a medley of judicial pronouncements, often
contradictory, on how far is the breakdown theory applicable in India. This paper seeks to
first examine, the legislative history of ‘Irretrievable Breakdown of Marriage’ [Part II] and
then would proceed to compile the different stances of courts in relation to this theory [Part
III]. Thirdly, the paper would inspect the imminent need for legislative reform in the divorce
laws [Part IV]. Fourthly, concerns regarding the addition of ‘irretrievable breakdown’ as a
ground for divorce would be listed [Part V] and then the paper would proceed to counter
these criticisms and provide positive suggestions [Part VI]. Lastly the paper would conclude
its findings [Part VII].

2. LEGISLATIVE HISTORY OF ‘I RRETRIEVABLE BREAKDOWN ’

2.1. ORIGINS IN COMMON L AW

The first Common Law country to incorporate ‘irretrievable breakdown of marriage’ as a

ground for divorce was New Zealand in 1920. The (New Zealand) Divorce and Matrimonial
Act, 1920, introduced a clause that if parties to a marriage had been living apart separately for
a span of three or more years, the same separation would amount to a ground to file a petition
for divorce with the judgment being in the hands of the courts to understand the breakdown

3
Law Commission of India, 71st Report, pg. 12.

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principle and decide the case for divorce. This concept was famously enunciated by the court
in Lodder v Lodder4, where it was observed that, “when a matrimonial tie has ceased to exist
de facto for that period it should cease to exist de jure as well”. Similarly, ‘irretrievable
breakdown of marriage’ was introduced as a ground for divorce in England by the English
Matrimonial Clauses Act, 1973. According to S. 1(2) (e) of this Act, when parties have lived
apart for a continuous period of at least five years immediately preceding the presentation of
the suit, the court would infer that a situation exists in which marriage would be presumed to
have broken down irretrievably. Thus, breakdown acts like an independent ground for
divorce in English Law, and it is not necessary to prove that other party was at any fault.5

2.2. DEMAND FOR INTRODUCTION IN THE INDIAN L EGAL SYSTEM

Though breakdown theory of divorce is not statutorily recognized in India, modifications

have been proposed in the current legal situation on several occasions. The 71st Report of the
Law Commission of India of 1978 dealt with the question whether granting of divorce should
be based on fault theory or on breakdown theory and fervently emphasized that restricting
divorce grounds based on faults shall cause injustice to those couples who are stuck in
situations where neither party have any fault with the marriage having become a merely an
external appearance without any efficacy. The Law Commission after pondering upon the
whole issue in detail and considering the opposition to the proposed amendment, proposed
that irretrievable breakdown be added as a ground for divorce in form of addition of S. 13C to
the Hindu Marriage Act, 1955. It was also recommended that the court should not hold the
marriage as irretrievably broken down unless it is satisfied that the parties have been living
apart for a continuous period of more than three years. Certain safeguards in order to curb
misuse were also proposed in form of S. 13D, which allows women to oppose dissolution of
marriage on ground of financial hardship, and S. 13E, which includes provisions for
protecting interests of children being affected by divorce.

Demands and suggestions to incorporate Irretrievable Breakdown of marriage were not

restricted to the Law Commission, and even the Supreme Court in its judgment in Ms. Jorden
Diengdeh v S.S. Chopra6 urged the legislature to amend Hindu Marriage Act, 1955 citing the
imminent need for incorporation of breakdown theory in the divorce jurisprudence.
Elaborating upon this suggestion the court observed that-

4
Lodder v. Lodder, 1921 N.Z.L.R. 786.

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 “It appears to be necessary to introduce irretrievable breakdown of marriage and mutual
consent as grounds of divorce in all cases. We suggest that the time has come for the
intervention of the legislature in those matters to provide for a uniform code of marriage
and divorce and to provide by law for a way out of the unhappy situation in which
couples like the present have found themselves.”

2.3. MODERN DEVELOPMENTS

In spite of these recommendations, no measure was taken by legislature to adopt the

proposals. The Supreme Court once again in Naveen Kohli v Neelu Kohli7 reiterated the
stance taken by the court in the 1985 judgment of Ms. Jorden Diengdeh v S.S. Chopra8 and
recommended the Union of India to seriously consider bringing an amendment in the Hindu
Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for
divorce. The Law Commission chaired by Dr. Justice AR Lakshmanan in 2009 took up the
matter of ‘irretrievable breakdown’ suo motu and in its 217th Report once again
recommended the addition of ‘irretrievable breakdown’ as a ground for divorce, along with
incorporating certain provisions safeguarding interests of children and concerned parties. 9
The Marriage Laws (Amendment) Bill, 2010 was placed before the Parliament and was
passed by the Rajya Sabha in 2013. However, certain provisions of the Bill were source of
much contention and criticism. These criticisms were documented in the Report of the
Standing Committee of the Rajya Sabha. For example, the option of opposing a divorce due
to financial hardship was given only to the wife. This provision was opposed on the ground
that there are several suits pending where the husband has claimed maintenance from wife.10
Also, though the Rajya Sabha Standing Committee observed that there was not much
resistance seen to the concept of ‘irretrievable breakdown’, it added that this provision may
be misused against women, particularly in rural areas, and hence adequate safeguards should
be adopted. Another provision of the bill related to division of matrimonial property was also
source of much speculation. The Bill was not put for discussion before the 15th Lok Sabha,
and once it was dissolved after the 2014 General Election, the Bill has not been tabled again
in the present house. Also, in 2014, the Law Minister in response to a question in the Lok

5
Pragati Varghese v. Cyril George Varghese, A.I.R. 1997 Bom. 349.
6
Ms. Jorden Diengdeh v. S.S. Chopra, A.I.R. 1985 S.C. 935.
7
Naveen Kohli v. Neelu Kohli, (2006) 4 S.C.C. 558.
8
Ms. Jorden Diengdeh v S.S. Chopra, A.I.R. 1985 S.C. 935.
9
Law Commission of India, 217th Report (2009).
10
Rajya Sabha Standing Committee, 45th Report on the Marriage Laws (Amendment) Bill, 2010. (presented in
2011) pg 14.

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admitted that the government was having second thoughts about it as more than 70
representations had been received against the Bill.11

Hence it appears that the future of reforms to add ‘irretrievable breakdown’ as ground
for divorce is bleak due to lack of first, legislative determination and second, safeguards
in order to curb possible misuse.

3. JUDICIAL OPINION ON ‘IRRETRIEVABLE BREAKDOWN’ AS A GROUND FOR DIVORCE

Even in absence of any statutory law to that effect, Indian courts have developed a unique
jurisprudence with respect to the concept of ‘Irretrievable Breakdown of Marriage’. Several
judgments have relied upon or at least mentioned the breakdown theory in order to grant
divorce. Also, the Supreme Court has invoked Art. 142 for granting divorce on this ground in
order to do complete justice between the parties. This trend of the judiciary to refer to the
breakdown theory came into prominence after the 71st Law Commission Report. However,
albeit the courts approach in this regard has been, more or less, favourable towards addition
of the breakdown theory, there have been certain notable exceptions. Also the jurisprudence
in this respect has been quite complex and confusing, with the court granting relief in certain
situations while denying the same in similar set of facts.

One opinion which has been taken by courts regarding the breakdown theory is that, the same
to a limited extent is already recognized in statute in form of S. 13(1A) of Hindu Marriage
Act, 1955.12 According to this section, if a decree of restitution of conjugal rights is not
complied or if cohabitation is not resumed between the parties with within one year, any
party may file a petition for divorce. Thus when there is a breakdown of marriage the court
may intervene. But this argument has been cleverly demolished by the Law Commission. The
reason given was that in order to first get either a decree of restitution of conjugal rights or
decree of judicial separation, fault of the other party must be shown according to S. 9 and 10.
Hence, although this provision shifts from Doctrine of Recrimination, which is the basis of
fault theory, in the sense that it allows a party to file divorce even though fault might have
been his own, the provision still retains its fault character as in order to take recourse, first
certain wrong of the other party must be shown.

11
Jayant Sriram, Bill to Make Divorce Easier May be Dropped (The Hindu, Feb 19, 2015),
http://www.thehindu.com/news/national/bill-to-make-divorce-easier-may-be-dropped/article6910089.ece.
12
Dr. Smitha v. Sathyajith, 2009 S.C.C. OnLine Kar. 456.

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Also, courts have almost consistently held that Irretrievable Breakdown is not an independent
ground for divorce, but it may be used to corroborate other grounds. In K Srinivasan Rao v
DA Deepa13, it was observed by the court that though irretrievable breakdown is not a ground
for divorce, it is a weighty circumstance to be considered by court amongst other
circumstances necessitating severance of marital ties. Similarly, in V Bhagat v D Bhagat14,
the court granted divorce on ground of mental cruelty to a couple, living apart for 8 years
who had consumed substantial time of their lives in litigation, holding that though
irretrievable breakdown is not a ground, the existence of the same ‘shall be borne in mind’.
Hence, Supreme Court upheld decree of divorce granted by Family Court in case of Durga
Prasanna Tripathy v Arundhati Tripathy15, on the ground of desertion as well as mental
cruelty, as there existed no scope of reconcilement between the parties. Similarly, in A
Jayachandra v Aneel Kumar16, the court said that irretrievable breakdown may be a ground
for divorce in order to do complete and plenary justice by court, and hence granted divorce
on grounds of cruelty.

An interesting opinion which has been provided by courts in some cases is that in certain
cases the continuance of an irretrievably broken marriage would itself amount to cruelty.
This opinion was relied upon in Satish Sitole v Ganga17, and Article 142 was invoked to grant
divorce to a couple who had been living apart for 14 out of 16 years of marriage . This case
further relied upon Romesh Chander v Savitri18, where the court on basis of a similar
reasoning, invoked Article 142 to grant divorce to a couple living apart for 25 years.
Likewise, in Dilip Kumar Karmakar v Biju Rani Karmakar19, it was held that ‘irretrievable
breakdown by itself does not ordinarily constitute a separate and independent ground for
divorce, but upon consideration of the combined effects of the relevant facts, if the Court is
satisfied that continuation of such irretrievably broken relationship constitutes an act of
oppressive mental cruelty, it may grant a decree of divorce’.

The beauty of the above reasoning is that by interpreting the term ‘cruelty’ to include
irretrievable breakdown, the court makes irretrievable breakdown, for all practical purposes, a
separate ground for divorce, while remaining in the confines of statutory law. However, this

13
K. Srinivasan Rao v. D.A. Deepa, (2013) 5 S.C.C. 226.
14
V. Bhagat v. D. Bhagat, (1994) 1 S.C.C. 337.
15
Durga Prasanna Tripathy v. Arundhati Tripathy, (2005) 7 S.C.C. 353.
16
A. Jayachandra v. Aneel Kumar, (2005) 2 S.C.C. 22.
17
Satish Sitole v. Ganga, (2008) 7 S.C.C. 734.
18
Romesh Chander v. Savitri, (1995) 2 S.C.C. 7.
19
Dilip Kumar Karmakar v. Biju Rani Karmakar, 2004 S.C.C. OnLine Cal. 166.

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line of reasoning may be rebutted on the ground that such interpretation would be taking the
meaning of ‘cruelty’ too far. The basis of including ‘cruelty’ as a ground for divorce lies in
the fault theory. Thus, cruelty is established when other party carried on certain conduct
prejudicial to matrimonial interest. However, such a case of cruelty may be distinguished
from ‘irretrievable breakdown’ as herein it is possible that none of the parties were at fault,
and merely not giving divorce to the other person when they want to would not qualify to be
either a matrimonial offence or cruelty. Also, even if it presumed that continuance of a
broken marriage is cruelty, in that situation application of Art 142 would be fundamentally
wrong for the reason that Article 142 is limited to cases where an already established law
doesn’t exist and if irretrievable breakdown is cruelty, then a law in form of S. 13() would
have to exist.

Another opinion which has been laid down by courts is that, there is an exception to the rule
that Irretrievable Breakdown is not an independent ground for divorce, the said exception
being invocation of Article 142 by Supreme Court in order to do complete justice between
the parties. Thus, it is necessarily implied that High Courts, which lack a corresponding
provision up to Art 142’s effect, won’t have any power to grant divorce on the basis of
breakdown.20 Hence, where several criminal cases filed by both the parties against each
other, court exercised power under Art. 142 and granted divorce by mutual consent.21
Similarly, in Ashok Hurra v Rupa Bipin Zaveri22, where a couple filed for divorce by mutual
consent, but the wife withdrew her consent before 6 months the court finally granted relief to
the parties by adopting the breakdown theory. Similar decision was given in the case of Anil
Kumar Jain v Maya Jain23, where the facts were almost the same.

The courts have in various cases tried to determine what constitutes irretrievable breakdown
of marriage. Where parties were living apart for more than 3 years, irretrievable breakdown
of marriage was established.24 Also, where there is no scope of settlement between the parties
and the parties have been living apart for several years, the marriage is said to be irretrievably
broken down as there is no chance of them coming together.25 Similarly, in a case where
there was separation of ten years without any scope of reconcilement, the marriage was held

20
Pranjali Prasanna Bingi v. Prasanna Anantrao Bingi, 2010 S.C.C. OnLine Bom. 555.
21
Swati Verma v. Ranjan Verma, (2004) 1 S.C.C. 123.
22
Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 S.C.C. 226.
23
Anil Kumar Jain v. Maya Jain, (2009) 10 S.C.C. 415.
24
Sandhya Rani v. Kalyanram Narayan, (1994) Supp. 2 S.C.C. 588.
25
Chandralekha Menon v. Vipin Menon, (1993) 2 S.C.C. 6.

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to be irretrievably broken down.26 But it has also been held that this power of court shall be
exercised sparingly in exceptional cases and hence where the breakdown in marriage was due
to the petitioner’s conduct alone, divorce was not granted.27

Although, ‘irretrievable breakdown’ has been to some extent recognized by Indian Courts
and most courts have had given favourable opinion regarding the theory, but there exist
judgments to the contrary, which express that granting divorce on this ground is not only
impermissible, but also debatable. A bench comprising of Justice Markandey Katju and VS
Sirpurkar, in Vishnu Dutt Sharma v Manju Sharma28 held that ‘if courts grant divorce on the
ground of irretrievable breakdown, then it would amount to adding by judicial verdict a
clause to S 13. It is for the parliament to enact laws and not the courts. The court cannot add
such a ground to S. 13 as that would be amending the act’. Also, in Hitesh Bhatnagar v
Deepa Bhatnagar29, it was held that ‘the legislature in its wisdom despite observations by
court has not thought it proper to provide for dissolution of marriage due to such averments’.
In Savitri Pandey v Prem Charan Pandey30, the court saw as to how such provision could be
misused by parties who would approach the court seeking benefit of their own wrong and
thus decided that no party shall be permitted to carve out a ground for destroying the family
which is the basic unit of society. Also, in K Srinivas v K Sunita31, the court observed that ‘it
is highly debatable whether in the Indian situation, where there is rampant oppression of
women, such a ground would at all be expedient’.

Hence, in may be concluded that there are two divergent judicial opinions prevailing
regarding ‘irretrievable breakdown’ of divorce. While, the general trend has been in
favour of its addition as a ground, there are opposing views. Also, it is accepted that
though, irretrievable breakdown is not an independent ground for divorce, it may
corroborate other factors. Also, though the Supreme Court may grant divorce on this
ground alone by invoking Article 142, but according to conflicting opinions, exercise of
such power is not permissible.

26
Kanchan Devi v. Promod Kr. Mittal, (1996) 8 S.C.C. 90.
27
Shyam Sundar Kohli v. Shushma Kohli, (2004) 7 S.C.C. 747.
28
Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 S.C.C. 379.
29
Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 S.C.C. 234.
30
Savitri Pandey v. Prem Charan Pandey, (2002) 2 S.C.C. 73.
31
K. Srinivas v. K. Sunita, (2014) 16 S.C.C. 34.

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4. NEED FOR LEGISLATIVE REFORM

Although, legislative inaction in dealing with the issue of irretrievable breakdown has forced
the judiciary to enter into the realm of activism by means of resort to Article 142, the results
of the same have been far from sufficient. The whole debate whether divorce shall be
granted, in general and by courts, on the ground of irretrievable breakdown, is still shrouded
with perplexity and uncertainty. A conclusion to the whole debate by means of a legislative
act is desired. It is argued that there is a pressing need to incorporate ‘breakdown’ as ground
for divorce due to (i) the lacunae in law prevailing and (ii) the social cost involved, and hence
any step by legislature shall be a reform in this direction.

4.1. THE LEGAL LACUNAE

The courts have tried to develop a jurisprudence based on breakdown theory of divorce even
in absence of statutory laws. But despite this attempt, several lacunas exist in law and the
present system is insufficient to do actual justice in a majority of cases.

First, judiciary cannot be expected to invoke Art 142 to grant relief in all cases. Art 142 is a
special provision to be used sparingly and is only available to the Supreme Court. Marriage
cannot be dissolved by the trial court or even the High Court only on the ground of
irretrievable breakdown.32 To say that only the Supreme Court can rely upon this ground
would be a cause of great injustice to the parties. First of all, it is not possible for every
matter or every petitioner to reach the Supreme Court, due to plethora of reasons. Second,
approaching the Supreme Court is the last stage of any litigation. Considerable time has
already been passed up till then and the parties have had already spent most of their energy
and resources. To grant a remedy at the last stage, when the same could have been granted
earlier, cannot be said to be prudent. Third, matrimonial disputes are normally the concern of
Family Courts, which specialize in them and follow a special adjudicatory mechanism in
order to distribute justice. Therefore, it would not be in interests of justice to restrict this
ground to the Supreme Court and the same shall be made available to all courts.

Second, moreover it has already been seen how courts have come up with diverse and
contradictory judgments regarding the issue of ‘irretrievable breakdown of marriage’. Lack of
consensus among the judiciary also leads to ambiguity in law which further causes injustice
to parties. It is possible that even when a case has reached the last stage, yet no relief is

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granted by the Court due to lack of certainty in law. It won’t be proper to leave adjudication
of an issue as socially relevant and sensitive as divorce to the sole discretion of the judge.
Hence, an attempt must be made to clarify the doubt existing in the current framework. The
answer to the question cannot come from judicial pronouncements as most of the decisions
are under Article 142 and thus cannot be treated as binding precedents.33 As the courts
themselves have pointed out several times, the position must be clarified by legislature alone.

Third, the non-availability of irretrievable breakdown as an independent ground for divorce

leaves the courts helpless. In Gulab Rai Sharma v Pushpa Devi34, though the marriage was
not working, none other ground was proven to exist. The Delhi High Court in its judgment
expressed its inability and ‘helplessness’ to grant relief to the parties. Similar ‘helplessness’
was observed by Karnataka High Court in Dr. Smitha v Sathyajith.35 These cases are crystal
clear examples of how the present theory of fault and the mandatory requirement of other
vitiating factors may be a source of injustice in several cases.

Hence it may be concluded that there exists several lacunae in present law as first, not
all courts have been given the power to grant divorce on the sole ground of breakdown;
second, several diverse and contradictory judgments have cropped up and thus
legislative clarification is essential; and third, the present framework many a times
leaves the court helpless to grant relief.

4.2. THE SOCIAL C OST

The absence of ‘irretrievable breakdown’ as a ground for divorce comes at a huge social cost
and its addition would serve the larger public interest. Marriage is just an empty shell and all
the substance is gone. The Law Commission and also the courts in several cases have said
that once the marriage has broken down beyond repair, it would be unrealistic for the law not
to take notice of that fact, and it would be harmful to society and injurious to the interest of
the parties. ‘Public interest demands where a marriage has been wrecked beyond the hope of
salvage, public interest lies in the recognition of that fact. Since there is no acceptable way
in which a spouse can be compelled to resume life with the consort, nothing is gained by
trying to keep the parties tied for ever to a marriage that in fact has ceased to exist. Human
life has a short span and situations causing misery cannot be allowed to continue indefinitely.

32
Geeta Mullick v. Brojo Gopal Mullick, A.I.R. 2003 Cal. 321.
33
Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 S.C.C. 379.
34
Gulab Rai Sharma v. Pushpa Devi, 1979 S.C.C. OnLine Del. 42.

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A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can
it decline to give adequate response to the necessities arising therefrom.’36

Also, the 71st Law Commission observed that though it is considerably easier for other
communities to get divorce, obtaining the same is relatively difficult for Hindus.
Liberalization of Divorce is a necessity of the times.

Hence it can be concluded that continuance of an irretrievably broken marriage would

be nothing but a source of agony to parties and hence, addition of ‘irretrievable
breakdown’ as a ground for divorce would reduce the social costs involved.

5. OBJECTIONS AND C RITICISM

Though, it is generally accepted, due to the reasons stated above, that the time has come to
add ‘irretrievable breakdown’ as a ground for divorce, there have been certain objections to
such proposals. An editorial published in The Hindu, listed the major concerns as follows-

1) Marriage relationship is accorded sanctity in our society, which would be treated

with levity if this ground of divorce is available;
2) Divorce carries social stigma, especially to the wife;
3) This ground permits husbands to terminate a marriage relationship at will;
4) This ground could be misused by an errant husband and;
5) That subjective element exists in the understanding of ‘irretrievability’ and
‘breakdown’.”37
Law Commission in its 71st Report noted that it received criticism from a High Court judge
who opined that ‘such an amendment would put human ingenuity to the premium and throw
wide open the doors to litigation and would create more problems than solved’ 38. Objections
to proposed amendment on similar grounds have been received from lawyers and activists. 39

The First objection to addition of irretrievable breakdown as a ground for divorce is that
marriage is a sacrosanct relationship and the proposed amendment would make divorce easier
thus leading to collapse of marriage as an institution.

35
Dr. Smitha v. Sathyajith, 2009 S.C.C. OnLine Kar. 456.
36
Law Commission, 217th Report.
37
Chitra Narayan, ‘When it’s an irretrievable Breakdown?’ (The Hindu), http://www.thehindu.com/todays-
paper/tp-features/tp-metroplus/when-its-an-irretrievable-breakdown/article3196254.ece- July 15 2006.
38
Law Commission 71st report, 18

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Secondly, if irretrievable breakdown is made a statutory ground for divorce, then the same
may lead to misuse of the law by devious husbands who will exploit the legal system by
taking benefit of their own fault. An example of such misuse may be the case of Neelam
Kumar v Dayarani40, where a husband approached the court seeking benefit of his own faults.
Though, the court refused to pass decree of divorce in the present case, the same might not
have been possible if it was a statutory ground. A legal basis for this argument may be found
in the concept of ‘disparate effect’ or ‘indirect discrimination’, according to which a
seemingly gender neutral law may be discriminatory.41 On this reasoning, the Andhra
Pradesh High Court in T Sareetha v Venkatasubbaiah42, declared S. 9 of Hindu Marriage Act
providing for restitution of conjugal rights unconstitutional as it violated Article 14. The court
stated that ‘in our social reality, this matrimonial remedy is found used almost exclusively by
the husband and is rarely resorted to by the wife’. This chance of misuse is present with
incorporation of irretrievable breakdown too. However, this decision was quickly overruled
and the court warned against meddling with family law.43
Thirdly, even if it is accepted that there is a need for amendment, there is a problem in
ascertaining how the proposed amendment should be drafted and brought about. The chances
of possible misuse of the legislation cannot be ignored and hence any amendment should
strive to minimize the possible ill-effects. It is argued that the present bills don’t take into
account many relevant factors regarding protection of women.
Fourthly, adding to the above, few critics argue that the term ‘irretrievable breakdown’ is
incapable of any definition. Even the court in Chetan Dass v Kamla Devi44 observed that
there is no ‘straitjacket formula’ to determine ‘irretrievable breakdown. Hence, any
modification in law would not reduce the already existing ambiguity and may make the law
even more ambiguous and thus unjust and problematic.
6. COUNTER TO CRITICISMS AND SUGGESTIONS

While analysing the benefits and defects of addition of ‘irretrievable breakdown’ as a ground
for divorce, both the 71st and 217th Reports of the Law Commission reviewed the

39
Family Lawyers oppose Fresh Ground for Divorce, (Indian Express, June 29 2010),
http://indianexpress.com/article/cities/pune/family-lawyers-oppose-fresh-ground-for-divorce/.
40
Neelam Kumar v. Dayarani, (2010) 13 S.C.C. 298.
41
Gautam Bhatia, Sex Discrimination and the Constitution-XII: Indirect Discrimination in Sareetha v.
Venkatasubbaiah, (Indian Constitutional Law and Philosophy, September 1, 2015)
https://indconlawphil.wordpress.com/2015/09/01/sexdiscriminationandtheconstitutionxiiindirectdiscrimination-
in-sareetha-vs-venkatasubbaiah/.
42
T. Sareetha v. Venkatasubbaiah, A.I.R. 1983 A.P. 356.
43
Saroj Rani v. Sudarshan Kumar Chadha, A.I.R. 1984 S.C. 1562.

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aforementioned objections and concluded that though there may be certain objections, the
benefits of the proposed amendment outweigh the defects. The Law Commissions also
proposed certain safeguards in order to reduce the chances of misuse of law.

The first objection that marriage is a sacrosanct relationship can be rebutted on two grounds.
First of all, the Hindu Marriage Act, 1955 even as of now provides certain grounds for
divorce. Hence it cannot be argued that matrimonial knots are made in heaven and hence
cannot be broken. On the other hand, keeping in mind the changing dimensions of society,
further demands have been made to liberalize divorce laws. Secondly, in was said in the case
of Om Prakash Poddar v Rina Kumari45 that ‘by refusing to sever that tie the law in such
cases do not serve the sanctity of marriage; on the contrary, it shows scant regard for the
feelings and emotions of the parties’. Hence breaking an irretrievably broken marriage would
only restore faith in sanctity of marriages.
Also, although there are chances of misuse, the same can be reduced by adding certain
safeguards. There is no point in saving such a broken marriage and in most cases the wife
continues to insist upon the marriage due to either the social stigma attached or because of
lack of adequate protections to safeguard her interests. Hence safeguards to protect interest of
spouse would be helpful in dealing with cases where one spouse abandons the other. The 71st
Report suggested four safeguards regarding protection of interest of children, hardships to the
respondent, restricting divorce for certain time after marriage and provisions with respect to
reconcilement. Also, while the present bill deals only with protection of wife’s interest,
suitable provision with regards to husband’s interest shall also be included keeping in
mind the changing societal order.
Also, certain critics say that in cases where the marriage has irretrievably broken from only
one side, the courts must be given the discretion to refuse to grant divorce. For example, in
Darshan Kumar v Radhika Gupta46, where the husband left the wife even though the wife
didn’t want divorce, the court refused to accept it as a case of irretrievable breakdown.
However, in my opinion this line of reasoning shall not be accepted because the basis
behind a marriage is consent. Consent connotes that both the parties are in agreement
and the consent of a single party won’t suffice. It would be impractical to work a
marriage where any one party is unwilling to make any reconcilement and it is this
impossibility with makes marriage irretrievably broken.

44
Chetan Dass v. Kamla Devi, (2001) 4 S.C.C. 250.
45
Om Prakash Poddar v. Rina Kumari A.I.R. 2013 Del. 209.

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Also, the Law Commission has provided a solution to the third objection in its 71st Report,
where it has provided workable model legislation in order to amend the law. Also, the Law
Commission in response to the objection that irretrievable breakdown of divorce as a ground
is vague, has answered that the party approaching the court must satisfy the court with one
material fact which is that the parties have been living apart for lengthy period of time
(minimum 3 years). Also, in order to curb discretion it has been said that judges will have to
adjudicate only upon the facts and not some vague concepts.

7. CONCLUSION

It is necessary to add ‘irretrievable breakdown’ was a ground for divorce in order to

accommodate the changing needs of society in law. The current divorce law requires to be
liberalized as moral, societal and ethical considerations regarding the institution of marriage
are changing. If a marriage is not working and has irretrievably broken down and no scope of
reconcilement or reviving amicability between parties is left, then it would be in public
interest to relieve the parties of the agony of being in such marriage. Hence, the time has
come to incorporate the breakdown theory of divorce in Indian divorce jurisprudence.

Though constant demands of legislative reforms in this direction have been made by legal
luminaries, Law Commission and courts, the response of legislature so far has not been
desirable. The judiciary in absence of statutory law has developed a unique jurisprudence
regarding ‘irretrievable breakdown’ and has even invoked Article 142 in order to do complete
justice between parties. However, the response to this kind of judicial activism has been
mixed both from outside and also from courts. Lacunae in law still exist and this combined
with the immense social cost of not having ‘irretrievable breakdown’ as a ground for divorce,
has intensified the need for immediate legal reforms.

Also any attempts at serious reforms by legislature in form of Marriage Law (Amendment)
Bill, 2013 have not yielded any result, due to opposition from certain sections. These
oppositions are mostly on the ground that the proposed change in law may lead to gross
injustice to spouses who wish to pursue marriages, while their spouses do not. But it must be
understood that the need for this provision outweighs any possible chances of misuse. The
chances of misuse can be tackled by incorporating certain safeguards in law. Hence, to

46
Darshan Kumar v. Radhika Gupta, (2013) 9 S.C.C. 1.

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conclude- legislature must provide for ‘irretrievable breakdown’ as a ground for divorce and
the time for the amendment is now.

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