Modern life has become complex with the fast-growing socio-economic changes with
the disintegration of family structure, urbanization, with the progress of women
and with the enactment of new laws. Now the concept of marriage has changed with
the advancement of socio-economic conditions and the spouses becoming more
In the past divorce has been condemned as an evil and union of two
people has always been regarded as an indissoluble and sacred union. Earlier
divorce was granted under extremely limited grounds and was quite inflexible.
Under Hindu law, divorce was quite unknown and now we are heading towards
granting of divorce on the ground of irretrievable breakdown of marriage. Under
the Hindu Marriage Act, 1955 both the spouses are given the right to dissolve
the marriage on several grounds as listed in Section 13.
There has been
substantial modification of divorce laws all over the world including India. The
legislature has made efforts to widen the grounds of divorce to make it more
readily available. However, irretrievable breakdown has not been enumerated as a
ground for divorce under Section 13 of the Hindu Marriage Act, 1955.
Irretrievable breakdown of marriage occurs when there are no hopes of
reconciliation and hence, should be dissolved at the instance of either party
irrespective of the 'fault' or 'innocence' of the petitioner or respondent.
marriage is dissolved for the common benefit of the spouses and to prevent
further misery. It has been recognized as a separate ground for divorce in many
countries. The concept was first introduced in England under the Divorce Reform
Act, 1969. The 71st Law Commission Report has also recommended for the
insertion for such a ground of divorce. Hence, there is no statutory law which recognises irretrievable breakdown of marriage as a ground for divorce.
essay seeks to analyse what irretrievable breakdown of marriage is, the benefits
of such a ground, the Law Commission Report's recommendations and safeguards,
important case laws, legal position, judicial attitude and how the current law
stands today. This essay will end with a conclusion.
The Evolution of Grounds for Divorce
The Hindu Marriage Act, 1955 grants divorce and other matrimonial reliefs.
Divorce is obtained by either spouse on grounds of impotency, cruelty,
conversion, desertion. Wives are given additional grounds for obtaining divorce
– acts of sodomy, rape, bigamy, bestiality on the part of husband. Most of the
grounds of divorce are fault-based or on guilt theory. According to this theory,
marriages can be dissolved if one spouse has committed a matrimonial offence
which is recognised as a ground for divorce.
There has to be concrete instance
of human behaviour to nullify the marriage. Breakdown of marriage occurs when a
spouse has not been heard of as being alive for seven years or more which
involves no element of fault. In 1964, an amendment took place which replaced
clauses (viii) and (ix) with Section 13(1A) furthered breakdown theory of
marriage allowing the party against whom decree was passed to apply for divorce.
This was initiated to prevent marriages from getting stuck in a state of
uncertainty. In Madhukar v Saral, it was remarked that the enactment of section
13(1A) was beneficial for parties where a breakdown has occurred to prevent them
from being tied down in each other. According to the court, this section would
help parties to remarry, live a respectable life and move on.
In 1976, 13B was inserted as a new section in the Hindu Marriage Act, 1955 which
allows divorce on mutual consent. This is consent theory of divorce. This
further recognises the theory of breakdown of marriage. This ground was
introduced in 1988 in Paris Marriage Law and in 2001 in the Indian Divorce Act,
1869. In divorce by mutual consent both parties have to give consent to end the
marriage. This becomes problematic when a spouse withholds consent in in a
divorce despite the marriage being unworkable. Both parties have to cooperate.
Mutual consent isn't always possible and unfortunately, the marriage continues
to subsist in the eyes of law.
For instance, in Gulabrai Sharma v Pushpa Devi,
the marriage had failed and the wife's desertion couldn't be proved. Hence, the
divorce sought by husband couldn't be granted. In such situations, divorce by
mutual consent is an unsatisfactory ground which binds both the spouses together
in a marriage which is dead but continues to exist legally. In Angrez Kaur v
Baldev Singh, the marriage was a total failure and simply existed in paper. Both
parties were married for 29 years and were living for 15 years separately. They
stated they could not live together any longer. The High Court didn't grant
divorce as the husband couldn't prove any statutory ground. Instead, alternate
relief of judicial separation under Section 13-A was granted.
As divorce by mutual consent has been recognised, irretrievable breakdown should
also be made a ground for divorce by amending the law. This would make the task
easier for the courts by simply interpreting the section.
What is Irretrievable Breakdown of Marriage?
Marriages are usually based on sound understanding between the spouses. When the
understanding is missing, consequently the marriage becomes dead both
emotionally and physically, and alas, the marriage has broken down
irretrievably. Both spouses can't live with each other in such a situation and a
feeling of bitterness and tension sets in. It usually occurs when neither party
is at fault. The court should in such cases dissolve the marriage as it serves
no purpose and both spouses can start a new life after the dissolution.
of divorce should be granted for the best interests of the spouses and society.
The logic of irretrievable breakdown is that what could not be mended should be
ended. Irretrievable breakdown of marriage is a ground which the Court can
examine and if the Court, on the facts of the case, comes to the conclusion that
the marriage cannot be repaired or saved, divorce can be granted. The grant of
divorce is not dependent on the volition of the parties but on the Court coming
to the conclusion, on the facts pleaded, that the marriage has irretrievably
Let's look at a hypothetical scenario. A and B had married in 1990. After 3
months of living together, they started living separately. The period of
separation lasted 15 years. There were efforts by the spouses' parents to bring
in reconciliation between the two. Mediation and counselling were initiated but
no solution was reached. Mutual hatred and dislike continued to pervade between
The parties could no longer live together and the marriage had
broken down. B, the husband, sought to divorce his wife and filed an appeal in
the court. However, the wife withheld her consent to end the marriage and
expressed her consent to continue the marriage. Both parties made allegations
and counter-allegations against each other and blamed each other for the
breakdown of marriage.
In a case such as this, obtaining divorce becomes very difficult due to the
absence of a provision permitting irretrievable breakdown and the absence of
fault on both the sides. In the aforementioned case, the relationship between A
and B has clearly deteriorated and the marriage is a dead letter. Many years are
spent in litigation and no workable solution exists in sight. Many courts refuse
to grant divorce and meaningful relief by being tied down to the technicalities
Courts usually take into account factors such as cruelty, impotency and
other technical faults as listed in Section 13 to grant divorce. In the absence
of any clear fault, courts are generally hesitant to grant divorce. In the
presence of fault of both parties, the clean hands doctrine of equity comes into
the picture. The argument is that courts refuse to grant divorce on vague
grounds to protect the 'sanctity' of marriage.
However, recently, there has been shift in the attitudes of judiciary allowing
divorces on more liberal and realistic grounds. Court usually grants divorce in
such situations by exercising its plenary powers under Article 142 of the
Constitution and thereby, doing complete justice.
Law Commission Reports
The Law Commission of India in its 71st Report titled The Hindu Marriage Act,
1955 - Irretrievable Breakdown of Marriage as a Ground of Divorce strongly
recommended amendments in the Hindu Marriage Act to make irretrievable breakdown
of marriage as a new ground for granting divorce among the Hindus. It also
suggested introduction of breakdown theory in addition to guilt or fault-based
theory. It was a very comprehensive record which was chaired by Shri Justice
H.R. Khanna. According to this report, separate living for 3 years would be an
indication of breakdown of marriage. Certain safeguards were also suggested to
check unbridled divorce.
In 1981, a bill was introduced to introduce irretrievable breakdown of marriage
as a ground for divorce but it didn't get enough support.
In the 217th report, the Law Commission examined several judgements of the
Supreme Court and High Court and once again took the view that irretrievable
breakdown of marriage should be incorporated as another ground for granting
divorce under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
The ruling in Naveen Kohli v Neelu Kohli
was taken into account in which the
Supreme Court recommended the Union of India to incorporate irretrievable
breakdown of marriage as a ground for divorce.
On the recommendation of the Law Commission report, the Marriage Law (Amendment)
Bill, 2010 and Marriage Laws (Amendment) Bill, 2013 were introduced.
The UPA government had introduced the Marriage Laws (Amendment), Bill proposing
amendments to the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 to
make 'irretrievable breakdown of marriage' a ground for divorce.
The Bill was
passed in the Rajya Sabha but it couldn't be taken up for discussion in the Lok
Sabha. The government was having second thoughts about the bill because it would
have negative implication on the society. Many organisations such as Save Indian
Family and Centre for Reforms were protesting against the bill as it would lead
to erosion of the foundation of marriage and would lead to a rise in live-in
relationships, litigation and crime. Hence, the bill was dropped and thereby,
never passed by both the houses.
The current position is that divorce cannot be granted under simple breakdown of
marriage in any of the personal laws. In Muslim law, however, husband can give
talaq to his wife under breakdown theory and the wife too can claim divorce for
consideration as a matter of right and on the husband's refusal, she can
approach the court.
Currently, we are heading towards irretrievable breakdown of marriage due to the
changing trends in society.
Courts are now granting divorce on more liberal and realistic grounds where
settlement and reconciliation are not possible.
Aboo Baker Haji v Mamu Koya was a case which involved Muslim parties where both
spouses were leading an unhappy life with a son born out of wedlock and the wife
filed a plea for divorce on vague grounds of cruelty and the husband filed a
suit for restitution for conjugal rights. The Court came to the conclusion that
there was clear evidence of breakdown of marriage and divorce was granted. Amma
Khatoon v Kashim Ansari
was another case where the Jharkhand High Court
dissolved the marriage on the ground of irretrievable breakdown by invoking
2(ix) of the Dissolution of Muslim Marriages Act, 1939.
In Ms. Jorden Diengdeh v. S. S. Chopra
, the Supreme Court observed that it was
'necessary to introduce irretrievable breakdown of marriage and mutual consent
as grounds of divorce in all cases.' The legislature should intervene in such
cases to provide a uniform code for marriage and divorce (Article 44) and a
solution for couples to walk out from an unhappy union.
The Supreme Court held:
In the instant case, the marriage appears to have broken down irretrievably. If
the findings of the High Court stand, there is no way out for the couple. They
will continue to be tied to each other since neither mutual consent nor
irretrievably break-down of marriage is a ground for divorce, under the Indian
Divorce Act. There is no point or purpose to be served by the continuance of a
marriage which has so completely and signally broken down. The parties are bound
together by a marital tie which is better untied.
V. Bhagat vs D. Bhagat was another case where the marriage had practically
broken down and there was no chance of both of the parties living together. The
petitioner, the husband, had initially filed for divorce on the grounds of
adultery and later added cruelty. The wife denied the allegations and made
counter-allegations against the husband calling him a lunatic. The husband's
petition was pending for 8 years and several years were spent in litigation and
The High Court dismissed the appeal and a special leave petition was
filed in the apex court. According to the court, marriages are usually made in
heaven but this has turned into 'hell' for sure. The Court came to the
conclusion that the marriage had broken down irretrievably and despite this, the
wife wanted to live with the husband to make the petitioner's life more
miserable. Although the allegations made by petitioner against the wife were not
proved, the court granted divorce based on the peculiarities of the case and in
the best interests of the parties.
In Chandrakala Trivedi v SP Trivedi
, the court observed that the marriage was
Kachan Kumar v Promod Kumar was a landmark divorce case where the marriage had
irretrievably broken down and there was no possibility of reconciliation. The
Supreme Court exercised its powers under Article 142 of the Constitution and
granted a decree of divorce. By invoking Article 142, the Supreme Court has
power to pass any decree or order to bring about complete justice in any case or
matter pending before it.
Similarly, in AVGV Ramu v ASR Bharathi
parties entered into a Memorandum of Understanding (MOU) to end the marriage by
mutual consent and was signed by both. However, the wife didn't appear in the
Family Court and withheld her consent in the High Court. The Supreme Court
invoked its powers under Article 142 of the Constitution as the parties were
living apart for 4 years and the wife didn't deny her signature on the document.
The marriage was considered to be broken and dead. Since only the Supreme Court
can invoke its powers to do 'complete justice' under Article 142, High Courts
have often declined to dissolve marriage on the ground of irretrievable
breakdown. Recently, however, there have been cases where the High Court too is
granting decrees on the ground when there's complete breakdown.
Krishna Banerjee v BB Bandyopadhay and Durga Prasanna Tripathi v Arundhati
are cases where the spouses had been living apart from each other for
more than a decade and the courts observed that the marriage had broken down and
granted them divorce.
Many courts have however, held the view that irretrievable breakdown of marriage
cannot be viewed as a magic spell to end a marriage where concrete reasons for
divorce are not proved. For instance, in Geeta Mullick v. Brojo Gopal Mullick,
decree of divorce was not granted by the Calcutta High Court because the guilt
or fault was not proved.
In Savitri Pandey v Prem Chandra
, the Court observed
that when a party makes averments or takes advantage of his or her wrongs then
the Court will not invoke its jurisdiction to dissolve the marriage. A spouse
cannot dissolve marriage on his or her whims and fancies.
There are cases such as Anita Kachha v KR Kachha
where the allegation made by
the spouse is not proved but divorce was granted as the spouse had married again
and hence, it was a clear indication that the marriage had irretrievably broken
However, there have been cases where irretrievable breakdown as a ground was
misused by a spouse. For instance, in Yashwant Kumar v Kunta Bai, the husband
developed an extra-marital affair and consequently, he kicked out his daughter
and wife from the house and filed a petition for divorce on the ground of
irretrievable breakdown of marriage. The court accordingly dismissed his plea as
the wife was not at fault and such matters couldn't be taken lightly.
Similarly, in Darshan Singh Gupta v Radhika
, the husband inflicted
psychological, physical and emotional torture on his wife and then
unsuccessfully filed a divorce petition on the ground of irretrievable breakdown
of marriage. Husbands cannot take advantage of their irresponsibility and
faults. Due to such conduct, many groups are against this provision as the wife
would face a disadvantage especially financially. However, as times are
progressing and both spouses are becoming more independent, this provision has
been receiving more support when marriages become practically unworkable.
Naveen Kohli v Neelu Kohli – A Landmark Case
In Naveen Kohli v Neelu Kohli
, the Supreme Court strongly recommended the
amendment of the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown
of marriage as a ground for divorce.
The facts of the case are as follows. The Appellant, Naveen Kohli, wed the
Respondent, Neelu Kohli and had three sons during the course of the marriage.
Gradually, the relationship soured. The Respondent started filing complaints
under the Indian Penal Code and many civil suits against the Appellant. The
Appellant eventually filed a suit for divorce in the Family Court. Before the
Family court, both parties made allegations and counter-allegations against each
The Family Court granted divorce to the Appellant on the ground of
cruelty against the Respondent under Section 13(1) (i-a) of the HMA but found
the allegation of adultery baseless and unproved. The Family Court realised that
reaching towards an amicable settlement was impossible due to the mutual hatred
and animosity between the two. It ordered the husband to pay Rs. 5,00,000
towards the wife as permanent settlement and passed the decree. The husband,
being unhappy with the decision, appealed to the High Court against the judgment
of the Family Court. The High Court upheld the Respondent's allegations pf
adultery against the Appellant and denied divorce on the ground that the husband
had arrived with 'unclean hands.'
Aggrieved by the decision of the High Court, the husband appealed to the Supreme
Court by filing a Special Leave Petition (SLP).
The Supreme Court considered the special leave petition and the judgement was
delivered by Justice Dalveer Bhandari on behalf of the three judge bench. The
Supreme Court delivered the judgment based on two issues of cruelty and the
concept of irretrievable breakdown of marriage. It agreed with the Family Court
that Respondent's behaviour constituted cruelty. The Court examined various
cases of cruelty which differed from case to case.
The Court also took into
account the concept of irretrievable breakdown of marriage in light of the
circumstances of the case. The parties had been living apart for a long time and
this reflected breakdown of their marriage. Due to changing social structures,
many marriages were practically dead and divorce couldn't be granted due to
absence of any fault. The Court strongly recommended incorporation of this
concept by referring to three sources.
When marriage is beyond repair, it would
be more beneficial to dissolve the marriage as it didn't serve any social
purpose and was harmful for both the parties. By evaluating the facts of the
case, the court took account of the Respondent's behaviour and her refusal to
give divorce on the ground of mutual consent, the period of separation and
litigation, concluded that they couldn't reconcile. The Supreme Court set aside
the judgment of the High Court and directed the Appellant to pay permanent
maintenance to the Respondent. Lastly, the Court directed the Legislature to add
irretrievable breakdown of marriage in the HMA.
This is not a landmark judgment as the Apex Court had made a similar
recommendation in Ms Jorden Diengdeh v S.S. Chopra. Despite many
recommendations by the Law Commission and the Supreme Court, the Legislature has
turned a blind eye to the status quo and has refused to add this provision in
the HMA. Due to this, the Supreme Court uses Article 142 to dissolve such
marriages where one party is unwilling to dissolve the marriage even if the
marriage is unworkable.
The Need for Irretrievable Breakdown as a Ground for Divorce
When there's a matrimonial relationship where parties can't live peacefully and
when wedlock becomes deadlock , the best option would be to dissolve the
marriage. There have been several cases where parties are living separately for
a very long period of time and where one party withholds consent to give divorce
to harass the other spouse ultimately denying relief to the other spouse who
wants to leave the marriage and start a new life.
In the interest of justice,
decree of divorce should be granted without much fuss where reunion and
reconciliation become impossible. In Vinita Saxena v Pankaj Pandit
, both the
parties stayed together for only five months and lived in separation for over 13
years. The marriage wasn't consummated either. The wife filed a divorce petition
against the husband on the ground of cruelty and insanity.
The Trial Court and
High Court turned down her divorce petition. The Supreme Court dissolved the
marriage holding that there was great miscarriage of justice by the lower courts
by rejecting her petition and by overlooking the fact that the relationship
between the two had become dead with no possibility for reconciliation and the
marriage would be detrimental for the wife. Decree of divorce was granted in the favour of the wife. The 71st law Commission report had also recommended that 3
years of separation or more should be considered as a good ground for divorce.
In the present situation, divorces are usually granted on the basis of a clear
matrimonial offence. However, as we have seen several cases where marriage
simply exists on paper and where there is no fault of both parties and the
period of separation has given arise to irreconcilable differences, it would be
better to dissolve the marriage than prolong the sufferings and misery of the
spouses. Divorce shouldn't be denied in such cases and should be seen as a
solution where both parties can start a new life.
However, the incorporation of irretrievable breakdown of marriage may
potentially open the floodgates of litigation where divorces may be granted on
trivial grounds. The second potential problem is that women who are not
financially independent or at a disadvantageous position may suffer the brunt of
this due to the patriarchal society.
The legislature should introduce irretrievable breakdown of marriage as a ground
for divorce under Section 13 of the Hindu Marriage Act, 1955 with adequate legal
safeguards to protect women's interests and taking account of the condition of
women who are not financially independent.
As divorce laws are becoming more flexible and liberalised as times are
changing, irretrievable breakdown of divorce should be introduced to liberate
parties who are in an unworkable relationship. Mutual consent is not enough as
one spouse might withhold consent to harass the other spouse. High Courts and
lower courts have often denied to give divorce in the absence of matrimonial
fault being tied to the technical legal facets of the laws.
In such cases.
Effective relief is denied to the parties who are compelled to stay in a dead
marriage. Many recommendations have been given to introduce such a provision and
the time has already come to make this recommendation into a reality. Hence,
inclusion of such a provision should be initiated by the legislature along with
safeguards to ensure that it will not be misused and to prevent exploitation of
Law Commission Reports:
- The 71stLaw Commission Report
- The 217thLaw Commission Report
- Professor Kusum Family Law 1 Lectures (2021).
- Dr Paras Diwan Family Law
- Irretrievable Breakdown Of Marriage: A Ground For Divorce Author(s): Kusum
Source: Journal of the Indian Law Institute, April-June 1978, Vol. 20, No. 2
(April- June 1978), pp. 288-303
Published by: Indian Law Institute
- Irretrievable Breakdown Of Marriage As An Additional Ground For Divorce
Author(s): Jaya V.S.
Source: Journal of the Indian Law Institute, July-September 2006, Vol. 48, No. 3
(July- September 2006), pp. 439-444
Published by: Indian Law Institute
- Naveen Kohli v. Neelu Kohli, (2006) 4 S.C.C. 558
Author(s): Suchita Saigal and Uttara Gharpure
Source: Student Bar Review, 2006, Vol. 18, No. 2 (2006), pp. 113-124 Published
by: Student Advocate Committee
Written By: Dhriti Bhadra
- Saroj Rani v Sudarshan Kumar
- V. Bhagat vs D. Bhagat
- Chanderkala Trivedi vs S.P. Trivedi
- Kanchan Devi v Promod Kumar
- Sanghmitra Singh v Kailash Chandra Singh
- Ms. Jordan Diengdeh vs S.S. Chopra
- Naveen Kohli v Neelu Kohli
- Savitri Pandey vs Prem Chandra Pandey
- Vinita Saxena v Pankaj Pandit
- Samar Ghosh v Jaya Ghosh
- Sanghamitra Ghosh vs Kajal Kumar Ghosh
- Swati Verma v Rajan Verma
- Dr. Kiran Singh D/O Birendra Kumar vs Dr. Shiv Kumar S/O Sunder Lal