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Marriages, as they define, are
made in heaven and solemnized on earth. It is a sacrament for
Hindus, a sanctified contract for Muslims and a sacred knot for
Christians. Husbands and wives vow for each other, yet there have
been innumerable cases of betrayals by the spouses.
The complexity of modern
society and its possible consequences such as fast changing socio
economic conditions, the disintegration of the joint family
structure, the rapid development of industrialization and
urbanization, education and employment and laws giving equal
status and rights to women, led a tremendous impact on the
institution of marriage. Few decades ago divorce was considered as
an evil, the grounds of divorce were very limited and it was
sought only under compelling circumstances. Positions have
however, changed now. Marriage is no longer treated as an
indissoluble union. In fact, there has been a considerable
legislative and judicial interference in the sphere of matrimonial
laws during the past few decades all over the world. In view of
the changing times, divorce laws are being substantially modified
and liberalized.
It was first in the Hindu Marriage Act, a form of irretrievable
breakdown of marriage theory was introduced through the amendment
of 1976, by which clauses (i) and (ii) have been inserted.
Bombay High Court in one occasion remarked: The enactment of Sec.
13(1A) is a legislative recognition of the principle that in the
interest of society if there has been a breakdown of the marriage
there is no purpose in keeping the parties tied down to each
other.
Section 13(1A) provides:
Either party to a marriage, whether solemnized before or after the
commencement of this Act, may also present a petition for
dissolution of marriage by a decree of divorce on the ground-
(i) that there has been no resumption of cohabitation as between
the parties to the marriage for a period of one year or upward
after the decree for restitution of conjugal rights in a
proceeding to which they were parties.
(ii) that there has been no restitution of conjugal rights as
between the parties to the marriage for a period of one year or
upward after the passing of a decree for restitution of conjugal
rights in a proceeding to which they were parties.
A further initiative towards the recognition of the principle of
breakdown was the introduction of mutual consent as a ground of
divorce in 1976 by incorporating Sec. 13B in the Hindu Marriage
act.
The Law Commission in its Seventy-First Report submitted in 1978,
strongly recommended to introduce breakdown of marriage as a
ground for divorce in addition to fault grounds in the divorce
law. When parties are living separate for a consecutive period of
three years or more with no prospect of reconciliation, it
definitely indicates, the breakdown of that marriage. Reports also
recommended certain safeguards to check unbridled divorces. Not
only the Law Commission, jurists, academicians and the courts have
also been making plea for introducing this ground in the
matrimonial laws.
In the year of 1981, a Bill was introduced to give effect
irretrievable breakdown as a ground for divorce, but it did not
accept as some scholars apprehended that unscrupulous husband
would desert their wives and take advantage of this provision.
Several cases have been decided by the courts, where the marriage
was in fact, utterly broken but the courts applying the
technicalities of the law , subsisted the marriage tie and could
give any meaningful relief to the parties.
One view can be cited against
including the item irretrievable
breakdown of marriage as one of the grounds of dissolution of
marriage is that there is a risk in giving recognition to a
situation where the marriage would be deemed to have been broken
down. Such a unilateral act, unless made an issue by the wronged
spouse, cannot be deemed to be a valid ground to take away the
legal right, which has accrued by solemnization of marriage at the
instance of the spouse who is found guilty of any wrong.
In Asha v. Krishna Lal (1990 Del.1), Delhi High Court held that
irretrievable breakdown of marriage is not contemplated to be one
of the grounds for dissolution of marriage. Thus by itself it can
not be taken to be a ground for decree of dissolution of marriage.
Similar view has been taken in
Smita Dilip Rane v. Dilip Dattaram
Rane (AIR1990 Bom.84), wherein it has been laid down that simply
because the marriage has broken down and the parties can not live
together, a decree for divorce can not be granted if the statute
does not specifically provide for that. In Suresh Prasad Sharma v. Rambai Sharma [1 (1999) DMC311(MP)], also, divorce was refused on
the plea of absence of the irretrievable breakdown ground.
Later on, the judiciary has been adopting a more liberal and
practical approach and several judgments of different courts prove
the fact that they no longer stick to the traditional notion of
inviolability of the marriage tie.
One of the cases relating to irretrievable breakdown of marriage,
is V. Bhagat v. D v. Bhagat (AIR1994 SC710), the apex court
observed, irretrievable breakdown of the marriage is not a ground
by itself. But while ascertaining the evidence on record to
determine whether the ground alleged are made out and in
determining the relief to be granted, the said circumstances can
certainly be borne in mind. The usual step as the one taken by us
herein can be resorted only to clear up an insoluble mess, when
the court finds it in the interest of both the parties.
In Sanghamitra Singh v. Kailash Singh (AIR2001 Ori.151), the
husband sought divorce. The wife informed the court that the
husband had already clandestinely married another lady, and a
criminal case had already been filed against him. Granting the
divorce the court observed:
‘Whether the husband has married for second time or not, it is now
clear that the marriage has irretrievable broken down and none of
the parties wants restoration of marital tie.... Accordingly by
applying the doctrine of irretrievable breakdown, we grant a
decree of divorce upon consent of both the parties.
In Krishna Banerjee v. B. Bandopadhay(AIR2001 Cal.154), where the
husband was harassed by the wife by physical and mental cruelty,
coupled with the fact that thyey living separately for 16 years,
the court found that it was a proper case for divorce, as the
marriage between the parties had broken down and they could no
longer live together as husband and wife.
However the Calcutta High Court expressed different view in this
regard, in Swapan Kumar Ganguly v. Smritikana Ganguly (AIR2002
Cal.6), the Court held that, the status of being married woman and
not a divorce or spinster by itself is of great protection to a
woman in our society and this fact can’t be denied even where
parties admittedly could not live together.
It is significant to note here that in circumstances where the
courts are inclined to adopt a liberal or practical approach, the
marriage between the parties would not be dissolved only on the
propositions made by one of the parties that the marriage between
them having broken down, no useful purpose would be served by
keeping it alive. The court may take a holistic approach of the
facts and circumstances of each case, also where a party is in a
advantageous position for his or her own wrong and then try to
plead breakdown of marriage, the court would not invoke its
jurisdiction to dissolve the marriage on this ground.
In the case of
Chandralekha Trivedi v. S.P. Trivedi [(1993) 4 SCC
232], the Supreme Court has not used the term
irretrievable breakdown of marriage but has defined that the marriage is
‘dead’. Husband initiated a divorce proceeding on the ground of
cruelty and also wife’s intimacy with young boys, after the nine
years of marriage. Wife also made similar allegations against the
husband. Their only daughter was already married when High Court
granted a divorce decree. On appeal, Supreme Court felt that it
would be futile to decide the allegations and counter-allegations
as the marriage became dead.
Recently the Supreme Court [Naveen Kohli v. Neelu Kohli 2006(3)
SCALE 252] has recommended an amendment to the Hindu Marriage Act,
whereby either spouse can cite irretrievable breakdown of marriage
as a reason to seek divorce. Expressing the concern that divorce
could not be granted in number of cases where marriages were
virtually dead due to the absence of the provision of
irretrievable breakdown, the court strongly advocated
incorporating this concept in the law in view of the change of
circumstances.
After referring the matrimonial laws of various countries and
reports including one by eminent international jurist Salmond who
held that, divorce should be seen as a solution and escape route
of a difficult situation, the Bench comprising Justice B. N. Agarwal, Justice A. K. Mathur and Justice Dalveer Bhandari said,
we have been principally impressed by the consideration that once
the marriage has broken down beyond repair, it would be
unrealistic for the law not to take notice of the fact, and it
would be harmful to society and injurious to the interests of the
parties. Where there has been a long period of separation it may
fairly be surmised that the matrimonial bond is beyond repair. The
marriage becomes a fiction, though supported by a legal tie. By
refusing to sever the 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 party.
Briefly the fact is that, the
petitioner, Naveen Kohli, a reputed businessman of Uttar Pradesh,
who was married to Neelu Kohli in 1975 and had three sons from
their wedlock, had alleged that his wife constantly harassing him
by filing false cases against him and she had relationship outside
the marriage. The wife also alleged that the husband had kept a
concubine with him. The trial court (Family Court) had allowed the
divorce plea of the husband directing him to deposit Rs.5 lakh
towards permanent maintenance of the wife. It, however said that
both of them failed to prove the allegation of character
assassination. Thereafter the wife appealed in the Allahabad High
Court for granting divorce, the High Court held that, the trial
court had not properly evaluated the evidence. It held that the
husband was living with another woman. The wife’s appeal was
allowed and the suit for divorce by the husband dismissed. On
appeal by the husband, the apex court after considering the facts
and circumstances of the case and 17 cases filed by the wife
against her husband, set aside the High Court judgment.
The Supreme Court held that,
In our considered view, looking to the peculiar facts of the
case, the High Court was not justified in setting aside the order
of the trial court.
The apex court further
observed, In our considered opinion, wisdom
lies in accepting the pragmatic reality of life and take a
decision which would ultimately be conducive in the interest of
both the parties’’.
The Court observed that public
interest demands that the married status should, as far as
possible, as long as possible and whenever possible, be
maintained. However, where a marriage has been wrecked beyond any
hope of being repaired, public interest requires the recognition
of the fact. The judgment notes that there is no acceptable way in
which a spouse can be compelled to resume life with the consort
and that situations causing misery should not be allowed to
continue indefinitely and that law has a responsibility to
adequately respond to the needs of the society.
The profound reasoning is that
in situation when there is absolutely no chance to live again
jointly or when it is beyond repair, in such a case it would be
futile to keep the marital tie alive. Here the ground of
irretrievable breakdown is really needed. But it should not be
oblivious that the ground, when introduced, needs to provide
safeguards to ensure that no party is exploited.
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Envisioning The Concept Of Irretrievable Breakdown Of Marriage 
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The
author can be reached at:
pratim@legalserviceindia.com /
