Irretrievable Breakdown of Marriage: Need for a No Fault Principle to Grant Divorce

Section 13 of the Hindu Marriage Act (“HMA” or Act) lays down the grounds on which the parties to a marriage can apply for divorce. These grounds are largely based on the ‘fault theory’. According to this theory, marriage can only be dissolved when either of the two parties to marriage are at fault. It merely seeks to provide the innocent party with the remedy of divorce because in Hinduism marriage is considered to be sacramental and eternal. Section 13 lays down faults such as adultery, cruelty, desertion, conversion, and bigamy, apart from other circumstances of material change in the matrimonial relationship, as the grounds for divorce. 

What is  “Irretrievable Breakdown of Marriage”and how does it differ from ‘divorce by mutual consent’? 

‘Irretrievable breakdown of marriage’ refers to a situation where the matrimonial relationship between two people breaks down irrevocably without any chance of reconciliation. Irretrievable breakdown entails a situation where both the parties are unable or unwilling to cohabit. It involves various significant factors like the mental attitudes of the parties. In such a scenario, it is likely that either of the two parties would dissolve the marriage by seeking a divorce. The rationale behind this was first explained by Justice Salmond in the earliest case of divorce due to irretrievable breakdown as, “it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation, the essential purposes of marriage have been frustrated, and its further continuance is in general not merely useless but mischievous.”

In essence, this ground provides for a ‘no-fault’ divorce between parties. However, in Hinduism, divorce on any ground other than the fault based theory is contrary to the basic ideal of marriage being a sacramental and eternal union of spouses.   

It is pertinent to note that although there isn’t a ground for no-fault divorce in the HMA, the HMA, in order to keep up with the changing times, includes a provision for divorce by ‘mutual consent’. Section 13B provides for divorce by mutual consent.

According to this section, either party need not prove a legally recognized fault by another in order to get divorced. The marriage is dissolved simply by the consent of the parties out of their own free will. However, this differs from the concept of ‘irretrievable breakdown of marriage’. For divorce by mutual consent, cooperation amongst both the parties is required. This means that, in adverse situations and hostile relationships, there is a high chance that either party to the marriage does not cooperate with the other. If this happens, the ground under Section 13B will not apply for want of consent. 

On the other hand, irretrievable breakdown of marriage requires the court to assess the matrimonial relationship and make a decision to grant divorce or not. As laid down in R. Srinivas Kumar v. R. Shametha, in cases where “it is found that marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably”, the court may grant divorce. However, if there is scope for revival, the court may (while taking into consideration various other factors) not grant it as well. 

Need for Irretrievable Breakdown of Marriage as a Ground for Divorce in India 

Various common law jurisdictions mostly involve ‘irretrievable breakdown of marriage’ as the sole ground for granting divorce. The inclusion of this ground seems to be in line with the modern trends of the world. It seeks to eliminate the fault-based principle so that it can rightfully grant divorce in situations where none of the parties are at fault.  It also provides  remedy to a party whose spouse may not be cooperating for a consent based divorce. 

In India, the supreme court has continuously stressed on the need for incorporating such a ground in the Act. It recommended the Union of India to bring an amendment in the HMA through the landmark judgement of Naveen Kohli v. Neelu Kohli. The court held that

“Once the marriage has broken down beyond repair, it would be unrealistic for the law, not to take notice of the fact, and the forcibly continued marriage would only act as a detriment to the future of the parties involved.” 

The Supreme court has, more often than not, come to the rescue of the parties by granting them divorce on the basis of irretrievable breakdown of marriage, despite it not being a legally recognised ground by the legislature. In V.Bhagat v. D.Bhagat it was held that  “It would indeed be a matter of serious concern, if both, the law and the courts fail in taking notice of the miseries of the parties, since the long continuous separation itself reflects the irreparable status of relations between the couple, and marriage, subsisting as a formal bond is an empty formality, which ultimately undermines the essence and significance of 

marriage as a social institution”. 

Further, the Law Commission of India in its 71st report has recommended the incorporation of ‘irretrievable breakdown of marriage’ as a separate ground for divorce among the Hindus. Additionally, it recommended amending the HMA to include this provision in its 217th Report

Current Legal Framework on Irretrievable Breakdown of Marriage

Despite this, there has been no amendment in the Act to effectuate the recommendations given by the Supreme court and the Law Commission. The question that arises is that how does the supreme court actually grant divorce on the said ground if there is no legislative provision reflecting the same?

The answer lies in the Article 142 of the Constitution of India. Article 142(1) reads as 

“The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it”.

Therefore, Article 142 empowers the supreme court to do “complete justice” to the parties. The court can pass any decree or order as it deems fit, in the interest of justice. In matrimonial cases, if the court finds it appropriate to grant a divorce on the basis of irretrievable breakdown of marriage, it can exercise its inherent jurisdiction and do so. 

The Supreme court first took recourse to Article 142 for granting a divorce on account of ‘irretrievable breakdown’ in the case of Kanchan Devi v. Pramod Kumar Mittal. It was observed that “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”.

The court has recognised that there is no statutory law for this ground in India. In the case of Munish Kakkar v. Nidhi Kakkar, it was held that “There is, thus, recognition of the futility of a completely failed marriage being continued only on paper. In numerous cases, where a marriage is found to be a dead letter, the Court has exercised its extraordinary power under Article 142 of the Constitution of India to bring an end to it”. The apex court has thus continuously exercised its plenary powers to grant relief to parties because it recognises the perils caused due to the lack of such a ground in the HMA. It substantiates the same in this case by observing, “the separation of sixteen (16) years had made both the parties bitter and cynical about the relationship and there was no sign of any affection or bonding on either side. The parties apparently had no history of pleasant time and only feelings of resentment arising from the several court cases”. 

It further held that “the continuity of this marriage is fruitless and it is only causing further emotional trauma and disturbance to both the parties. The sooner this comes to an end, the better it would be, for both the parties “. 

This clearly highlights the stance of the Supreme Court as being averse to redundant provisions and practices. The court sees no point in letting marriages, in which “nothing remains”, subsist merely because of the lack of a no-fault ground in the HMA. Hence, it is evident that the court has consistently kept the interests of the parties and the public, at large, in mind. It has sought to grant divorce on this ground by exercising its inherent powers to put an end to the misery of the parties and enable them to live a better life. 

Sarah Ayreen Mir is a 4th Year law student of School of Law, Christ University. 

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