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Irretrievable Breakdown Of A Marriage: Need Of Time

Marriage is a significant and multifaceted institution that holds various meanings and significance across different cultures, religions, and societies. Marriage is the act or rite based on a consensual union creating the legal and social status of husband and wife.

Its significance can be deduced from various perspectives:

  1. Legal and Social Recognition: Marriage is often a legally recognized union between two people, conferring various legal rights and responsibilities. It can provide benefits such as tax advantages, inheritance rights, and access to healthcare and social security benefits. Socially, marriage is often seen as a formal and socially accepted commitment between partners.
  2. Emotional and Psychological Bond: Marriage signifies a deep emotional and psychological connection between two individuals. It symbolizes love, commitment, and a promise to support each other through life's ups and downs. Many people find emotional fulfilment and companionship in marriage.
  3. Family and Parenthood: Marriage often serves as the foundation for starting a family. It provides a stable environment for raising children, and it's a legally recognized framework for parental rights and responsibilities. For many, marriage represents the transition to parenthood and the creation of a family unit.
  4. Cultural and Religious Significance: In many cultures and religions, marriage is a sacred and culturally significant institution. It may involve elaborate ceremonies, rituals, and traditions that vary widely across different communities. Marriage ceremonies often serve as a way to celebrate and affirm cultural or religious values.
  5. Economic and Financial Security: Marriage can provide economic stability and security for individuals and families. It often involves shared financial responsibilities, pooling of resources, and joint financial planning. This can lead to greater financial security and the ability to achieve common financial goals.
  6. Legal Protections and Responsibilities: Marriage carries certain legal protections and responsibilities. These may include spousal support (alimony), property rights, and the legal obligation to support one's spouse. In case of divorce or separation, these legal frameworks help determine issues such as property division and child custody.
  7. Social Support Networks: Marriage often extends one's social support network. Married couples may receive support from their respective families, friends, and communities. These networks can provide emotional and practical assistance during challenging times.
  8. Personal Growth and Development: Marriage can be a catalyst for personal growth and development. It challenges individuals to learn and grow through compromise, communication, and problem-solving.
It's important to note that the significance of marriage can vary widely among individuals and cultures. While some people may view marriage as a fundamental life goal, others may choose alternative forms of partnership or remain single. The meaning and importance of marriage are deeply personal and can evolve over time as societal norms and individual values change. Ultimately, the significance of marriage is a matter of individual perspective and cultural context.

Divorce in India is governed by various personal laws that are specific to different religious communities.

The key laws regulating divorce in India include:

  • Hindu Marriage Act, 1955: This Act applies to Hindus, Buddhists, Jains, and Sikhs. It provides provisions for both divorce and judicial separation. Under this law, the grounds for divorce include adultery, cruelty, desertion for two or more years, conversion to another religion, mental disorder, and incurable diseases. Mutual Consent is newly developed ground of Divorce.
  • Muslim Personal Law: Muslim marriages in India are governed by Islamic personal law. Under Muslim law, divorce can be initiated by the husband through various means such as Talaq (divorce by pronouncement), Ila (divorce by swearing an oath of abstinence from conjugal relations), Zihar (divorce by likening one's wife to a prohibited relative), and Khula (divorce initiated by the wife). There are specific procedures and conditions for each type of divorce.
  • Christian Marriage Act, 1872: For Christians in India, divorce is governed by this Act. The grounds for divorce include adultery, cruelty, desertion, and conversion to another religion. Mutual Consent is newly developed ground of Divorce.
  • Parsi Marriage and Divorce Act, 1936: This Act applies to Parsis in India. Grounds for divorce under this Act include adultery, desertion, cruelty, and conversion to another religion.
  • Special Marriage Act, 1954: This Act allows individuals from different religious backgrounds or those who do not wish to follow their personal laws to marry and divorce under a secular legal framework. The grounds for divorce under this Act include adultery, cruelty, desertion, mental disorder, and conversion to another religion. Mutual Consent is newly developed ground of Divorce.
  • Divorce by Mutual Consent: In addition to the specific grounds mentioned above, Indian law allows for divorce by mutual consent. This means that both parties agree to end the marriage, and they can file a joint divorce petition before the court. There is a mandatory waiting period of six months during which reconciliation is attempted. If reconciliation fails, the court can grant a divorce.
The five-judge panel emphasised the necessity for the SC to abandon the "fault theory" and "accusatorial principle of divorce" under Section 13 (1) of the HMA 1955, which allows for divorce on the grounds that one spouse has committed certain wrongdoings, such as cruelty, adultery, or desertion.

The 'fault' or �matrimonial offence' doctrine is the foundation of both the HMA of 1955 and the Special Marriage Act of 1954 for the purpose of divorce.

If one partner has broken a marital rule, it enables the innocent person to get a divorce.

Adultery, cruelty, desertion, conversion, insanity, leprosy, venereal illness, and sanyasa are the seven fault reasons for divorce listed in the HMA of 1955.Rape, sodomy, bestiality, non-resumption of cohabitation following a maintenance order, and decree for maintenance are the four grounds on which the wife may bring a single-person lawsuit.

According to this belief, the innocent party must demonstrate their innocence in order for the divorce to be granted.

The term "irretrievable breakdown of marriage" is a legal concept used in many jurisdictions to describe a situation where a marriage has deteriorated to the point where it cannot be salvaged or repaired. This concept is often a grounds for divorce, allowing one or both spouses to legally end their marriage.

The specifics of how an irretrievable breakdown of marriage is defined and handled in legal proceedings can vary from one jurisdiction to another. In some places, it may be the sole grounds for divorce, while in others, it may be one of several possible grounds for divorce.

Common factors that can contribute to an irretrievable breakdown of marriage include:

  1. Prolonged separation: If the spouses have been living apart for an extended period of time, this can be evidence of an irretrievable breakdown.
  2. Ongoing conflicts: If the marriage is characterized by constant and unresolved conflicts, this can indicate an irretrievable breakdown.
  3. Lack of communication: When spouses no longer communicate effectively or have ceased communicating altogether, it can contribute to a sense of irretrievable breakdown.
  4. Emotional detachment: If both spouses have emotionally disconnected from each other, it can be a sign that the marriage has irretrievably broken down.
  5. Infidelity or betrayal: Cases of infidelity or other forms of betrayal can lead to an irretrievable breakdown of trust and emotional bonds within a marriage.
  6. Substance abuse or addiction: When one or both spouses struggle with substance abuse or addiction issues, it can have a detrimental impact on the marriage.
  7. Incompatibility: Sometimes, couples discover over time that they have fundamental differences or incompatibilities that make it impossible to continue the marriage.
The Supreme Court has declared that irretrievable collapse of a marriage can be regarded as cruelty under the Hindu Marriage Act, 1955, and thus be grounds for divorce.

The Supreme Court also ruled that it has the authority under Article 142(1) of the Constitution to award divorce on the grounds of "irretrievable breakdown" of a marriage, whether by mutual consent or if one of the parties objects. It further stated that under certain instances, it can waive the six-month waiting time prescribed under the Hindu Marriage Act of 1955.

The Apex Court has also held that it has the power to nullify a marriage if it has irretrievably broken down as in the case of Shilpa Sailesh vs. Varun Sreenivasan (2023), "Irretrievable breakdown of marriage" and "divorce by mutual consent" are two different concepts related to divorce in various legal systems. Let me explain each one:

Irretrievable Breakdown of Marriage:

  • Irretrievable breakdown of marriage can be a ground of divorce. It essentially means that the marriage has reached a point where it cannot be salvaged or repaired. This breakdown can be due to various reasons such as prolonged separation, infidelity, abuse, or other irreconcilable differences.
  • In some countries, like the United States, "no-fault" divorce laws have been enacted, where a couple can get a divorce based on the sole ground of irretrievable breakdown, without necessarily proving any specific fault or wrongdoing by either party.
  • In cases of an irretrievable breakdown, one party usually files for divorce, and the court may grant it after considering the circumstances and ensuring the proper legal procedures are followed.

Divorce by Mutual Consent:

  • Divorce by mutual consent, also known as "uncontested divorce" or "amicable divorce," is a type of divorce where both spouses agree to end their marriage and cooperate in the process without any dispute or fault allegations.
  • This process typically involves both parties reaching an agreement on key issues such as property division, child custody, spousal support, and so on.
  • It is usually a quicker and less contentious way to end a marriage compared to a contested divorce, where the spouses disagree on various aspects of the divorce settlement.
  • In some jurisdictions, divorce by mutual consent may be subject to waiting periods or other legal requirements before the divorce is finalized.

The key difference between these two concepts is the basis for the divorce:

  • In the case of "irretrievable breakdown of marriage," the marriage is ending due to a perceived inability to continue it, and fault may not necessarily be assigned to one party.
  • In "divorce by mutual consent," both spouses are in agreement to end the marriage, and they work together to resolve the terms of the divorce.

In legal proceedings, proving an irretrievable breakdown of marriage typically involves providing evidence of the factors contributing to the breakdown. This evidence may include testimony from the spouses, witness statements, or other documentation.

A court hearing a petition for divorce should not hold that the marriage has broken down irretrievably unless satisfied by the petitioner of one or more of the following facts:
  • that the respondent had an extramarital affair, making it untenable for the petitioner to remain with the respondent.
  • that it is unreasonable to expect the petitioner to cohabitate with the respondent given how the respondent has acted.
  • that, immediately before the petition was presented, the respondent abandoned the petitioner for a continuous two-year period.
  • that the responder agrees to the issuing of a decree and that the parties to the marriage had lived apart for at least two years immediately prior to the presentation of the petition.
  • that the petition was filed before the parties had lived apart continuously for at least five years.


The most recent SC ruling does not suggest that individuals should hurry there right now to get a speedy divorce.

It is "not a matter of right, but rather a discretion that needs to be exercised with great care and caution" for the SC to grant a divorce on the grounds of irretrievable dissolution of a marriage.

The SC also emphasised that a party cannot explicitly request the dissolution of a marriage on the basis of irretrievable breakdown of a marriage in a writ petition under Article 32 or Article 226 of the Constitution of India.

It's important to note that divorce procedures and requirements can vary depending on the specific personal law governing a person's marriage. Additionally, there may be cultural and regional variations in how divorce cases are handled, It's important to note that the legal processes and requirements for divorce, including grounds for divorce, vary widely from one jurisdiction to another.

Therefore, individuals seeking a divorce should consult with an attorney who specializes in family law in their jurisdiction to understand the specific legal requirements and options available to them.

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