Marriage is considered a sacrament under the Hindu Law that extends beyond life and is indissoluble. Marriages have been codified by the Parliament under the Hindu Marriage Act 1955. Hindu Law strictly follows Monogamy. Before the enactment of the Hindu Marriage Act 1955, divorce was not recognized as a means to put an end to a marriage, the only exception to this, if it was recognized by custom, which indeed meant that the rules of dissolution of marriage and monogamy were subject to a valid custom to the contrary.
The Government of India has attempted to include ‘Irretrievable Breakdown of Marriage’, with regards to the Hindu Marriage Act and Special Marriage Act, as a ground of divorce according to the recommendations of the 71st report of the Law Commission of India.
Irretrievable Breakdown of Marriage means-
“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.”
It can be defined as such kind of failure in the matrimonial relationship or such circumstances adverse to that relationship that no reasonable probability remains of the spouses remaining together as husband and wife for mutual comfort and/or support.
Theories of Divorce
- Fault Theory – Fault theory is also called the offenses theory or the guilt theory. Under this, the marriage can be dissolved only when a matrimonial offense has been committed by either party to the marriage. It is necessary to have a guilty and an innocent party, and only the innocent party can seek the remedy of divorce. The drawback of this theory is that if both parties have been at fault, there is no remedy available.
- Consent Theory – This is the concept of “divorce by mutual consent.” This theory recognizes that parties to a marriage can together decide to end the relationship. The procedure to be followed for divorce under this theory is that the parties have to live apart for a specific period of time, and also that such application be made in two stages before the divorce is confirmed. All the 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 to it.
The breakdown theory of divorce which in a characteristic way is attached with the no-fault theory of divorce represents the modern view of divorce. Under this theory, the law realizes a situation and asks the unhappy couple that if you can satisfy the Court that your marriage has broken down and you desire to terminate a situation that is intolerable and not worth adjusting, then your marriage shall be dissolved, whatever may be the cause. The marriage can be said to be broken when the objects of the marriage cannot be fulfilled. When there is not a single ray of hope that parties can be reconciled, it can be considered as an irretrievable breakdown of marriage.
Hon’ble Supreme Court in Sangamitra Ghose Vs. Kajal Kumar Ghosh, 2007 2 SCC page 200, stated-
“We are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact, there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties beyond repair and that the marriage has been wrecked beyond the hope of salvage and therefore public interest and interest of all concerned lies in the of the recognition of the fact and to declare defunct de jure what is already defunct de facto.”
In Navin Kohli vs Neelu Kohli, the Supreme Court made a strong plea to the Union of India for incorporating irretrievable breakdown of the marriage as a separate ground for divorce under Section 13 of the Hindu Marriage Act 1955 and amending the Hindu Marriage Act.
It should be noted that no court in the country except the Supreme Court can grant a divorce on the ground of irretrievable breakdown of matrimonial relationship.
In the most recent scenario, in CIVIL MUNISH KAKKAR V. NIDHI KAKKAR, APPEAL NO.9318 OF 2014, the court noted that
“We do believe that not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties. This is even reflected in the manner of responses of the parties in the Court. The sooner this comes to an end, the better it would be, for both parties. Our only hope is that with the end of these proceedings, which culminate in the divorce between the parties, the two sides would see the senselessness of continuing other legal proceedings and make an endeavor to even bring those to an end.”
The mere fact that there has been a rift between the parties or that they are for the time living apart does not mean that the marriage has come to an end. It is possible that what may appear to one person to be irretrievable may appear to another as not yet beyond repair. But such a state of things cannot be allowed to continue indefinitely, and there must arrive a point of time when one of the parties should be permitted to seek the judgment of the court as to whether there is or there is not a possibility of the marriage being retrieved
Since there is no acceptable way wherein a partner can be compelled to resume life with the consort, nothing can be gained by trying to keep the parties tied forever to a marriage that has ceased to exist. Marriage is lifelong cohabitation in the home, it is commitment and adjustment. When the idea of continuing cohabitation has ceased, the legal tie should also be dissolved. Thus, once the marriage has broken down beyond repair, it is unrealistic for the law not to take notice of that fact. It can be harmful to society and injurious to the interests of the parties if the legal bond is sought to be maintained without considering the disappearance of the emotional factor. Such a course would encourage continuous arguments turning it eventually into perpetual bitterness, and may often lead to immorality. Where there has been a long period of continuous separation, it may fairly be agreed upon that the matrimonial bond is beyond repair. The marriage then just becomes a fiction supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.