*by Sneha Naresh and Archisa Ratn
Introduction
In Hindu culture, marriage is considered the sacred bond between a man and woman that lasts for seven lives. However, given the evolving landscape of the world, the concept of divorce, which used to be considered evil, has now been accepted to be part and parcel of the institution of marriage. Currently, Section 13 of the Hindu Marriage Act, 1955 only allows fault grounds for divorce which include cruelty, adultery, desertion, conversion, unsound mind, renunciation and disappearance. These fault grounds require proof and allegations, which leads to prolonged litigation and grave conflicts, highlighting the need for a different ground for divorce.
Nevertheless, the ‘irretrievable breakdown of marriage’ has emerged as a significant judicial doctrine in recent times, which focuses on the reality that a marriage may have deteriorated beyond repair, making reconciliation impossible.
The article aims at understanding the historical context and origin of the concept of ‘irretrievable breakdown of marriage’, in both India and the United Kingdom, and its application by the Supreme Court of India during recent times. It further explains the significance of incorporating such a ground in the legislation itself due to the ambiguity surrounding its usage by the lower Family Courts which are usually most accessible to the general public.
Origins of ‘Irretrievable Breakdown of Marriage’ in the United Kingdom:
Historically, fault-based divorce was the norm in England, requiring parties to prove adultery, cruelty, or desertion to dissolve their marriage. One of the early cases reflecting the limitations of such a system was Masarati v. Masarati (1895), [1] where both spouses accused each other of adultery. This case shows how fault-based divorces fuelled contentions between spouses and complicated the legal process paving the way for an ‘irretrievable breakdown of marriage’ to be established as a ground for divorce.
In response to the growing dissatisfaction with fault-based divorces, the Law Commission of England conducted a review, recommending reforms that would allow couples to divorce without assigning blame. These recommendations were implemented through the Divorce Reform Act of 1969, which introduced the concept of ‘irretrievable breakdown of marriage’ as the ground for divorce. The Act came into force in 1971, allowing couples to prove this breakdown by demonstrating adultery, unreasonable behaviour, desertion, or a period of separation.
In recent years, further reforms have been enacted to modernize divorce laws. The Divorce, Dissolution and Separation Act 2020 (The “DDS Act”) came into effect on April 6, 2022, introducing ‘no-fault divorce.’ This is the most significant reform since the 1970s. The DDS Act retains ‘irretrievable breakdown’ as the sole ground for divorce but removes the requirement to prove one of the five facts (adultery, desertion, unreasonable behaviour, or separation). A simple statement from one or both parties that the marriage has broken down irretrievably is sufficient.
No-fault divorce has brought substantial benefits by reducing conflict between spouses, eliminating the need for blame, and promoting more amicable discussions about financial settlements and childcare arrangements. This approach has modernized divorce proceedings in England and Wales, reflecting the evolving understanding of marriage breakdowns. Similar reforms have been adopted in several countries, such as Sweden, Australia, and the U.S. states.
Historical Context of ‘Irretrievable Breakdown of Marriage’ in India:
The concept of irretrievable breakdown of marriage has a long history in India, shaped by both legislative efforts and judicial decisions. The idea first gained prominence when the Law Commission of India submitted its 71st report in 1978. It recommended that along with the fault grounds present in HMA, 1955, ‘irretrievable breakdown of marriage’ should also be inserted as a ground for divorce because the former often increased financial strain and emotional distress in couples seeking divorce. Along similar lines, the 217th Report (2009) of the Law Commission recommended the same. In this report, the landmark case of Naveen Kohli v. Neelu Kohli was quoted wherein the Apex Court recommended the Union of India to consider introducing an amendment to incorporate the same.
The Marriage Laws (Amendment) Bill, 2013, included ‘irretrievable breakdown of marriage’ as a ground for divorce in Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. However, this bill failed to be passed in the Lok Sabha.
Nonetheless, over the years, various Indian courts have recognized irretrievable breakdown of marriage in a range of decisions. The Supreme Court in as early as 1996 invoked Article 142 to grant divorce under this ground, in the case of Kanchan Devi v. Pramod Kumar Mittal. Thus, it can be seen that even though irretrievable breakdown of marriage is not yet codified, it is being increasingly invoked by the courts in cases where reconciliation is impossible.
Recent Supreme Court Jurisprudence of Irretrievable Breakdown of Marriage:
In the case of Shilpa Sailesh v. Varun Sreenivasan, the constitutional bench of the Supreme Court held that the Apex Court can grant no-fault divorce of the grounds ‘irretrievable breakdown of marriage’ using its powers under Article 142 of the Constitution of India, even if one party is against it.
The Supreme Court defined ‘irretrievable breakdown of marriage’ as, “once every effort has been made to salvage the marriage and there remains no possibility of reunion and cohabitation… that the marriage has shattered beyond repair.”
Article 142 allows the Supreme Court to pass any order or decree which is required for achieving “complete justice in any cause or matter pending before it…”. It however set limits to this discretionary power and stated that such authority must be exercised in a responsible manner that is in line with “fundamental general and specific principles”. General principles refer to the aspects included in the basic structure of the Constitution, whereas specific principles can be interpreted to be those under the relevant legislations.
In the same case, the Court laid down a set of inclusive and illustrative factors to be considered while granting such divorce:
Period of cohabitation post-marriage.
Period of separation, if it has been more than six years, will be relevant.
Substance of allegations made by each party against the other.
Litigatory or mediatory attempts to settle issues between parties.
Social, educational and economic status of parties.
Presence of and number of children, their ages and education received.
Financial dependence of one party on another.
Best interest of children, in aspects of welfare and custody.
Alimony for wife.
Economic and financial rights of children.
In the case of Rajib Kumar Roy v. Sushmita Saha, the Apex Court granted divorce on grounds of ‘irretrievable breakdown of marriage’ due to considerable factors such as “continued bitterness, dead emotions and long separation.” In Poonam v. Surendra Kumar, divorce was granted by the Supreme Court as the period of separation was found to be sufficiently long (19 years).
However, the Court has also rejected relief under Article 142 exercising its discretion, such as where the period of cohabitation post marriage was only 40 days, and another case wherein the wife showed willingness to work on the marriage.
Conclusion and Recommendations:
The Delhi High Court recently held that Family Courts do not have the power to grant divorces on grounds of ‘irretrievable breakdown of marriage’, and warned that the lower courts must restrict themselves to provisions present in the statutes. It opined that such discretionary powers under Article 142 are vested only with the Supreme Court of India.
Interestingly, in the case of Prabhavathi v. Lakshmeesha, the Supreme Court declared a Family Court order of divorce granted on the grounds of ‘irretrievable breakdown of marriage’ as null and void. However, it did so because it did not agree with the factors considered by the lower court while granting such divorce and not because the latter did not have such powers. This can be taken as an implicit green signal by the Apex Court that lower courts can grant divorces under the ground of ‘irretrievable breakdown of marriage’ using Supreme Court judgements as precedents. However, the inconsistencies in the stance of the Supreme regarding the power of the lower courts to grant divorce under this doctrine complicates its application.
Article 142 further states that such order or decree granted to do complete justice “shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made…”
A Family Court in Patiala granted no fault divorce (in 2023) considering the fact that the parties had contested the case in the Court for more than seven years. The Court observed that irrespective of the reason for which one party wants divorce, they are forced to allege baseless accusations against the other party in order to relieve themselves from the marriage. This results in immense suffering for both parties.
Therefore, to set aside such ambiguity in the law, the Parliament must introduce specific sections in the marriage laws to allow divorce on grounds of irretrievable breakdown of marriage. This codification of the doctrine would reduce financial and emotional burden on couples by eliminating the need for attributing blame on one or both of the spouses and promoting amicable resolution of marital disputes. Several appeals and monetary resources would be required to approach the Supreme Court for such a divorce, which again may or may not grant it as it is a discretionary power. Such hardship must not be caused to those parties who are already going through a difficult passage of time due to their failed marriages.
*Sneha Naresh is a fifth-year law student pursuing a B.A. LL.B (Constitutional Law Hons.) at the National Law University, Jodhpur.
*Archisa Ratn is a second-year law student pursuing a B.A. LL.B (Hons.) at the National Law University, Jodhpur.
The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.
[1] Masarati v. Masarati, (1969) 1 WLR 392.
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