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Comparative Analysis Of Irretrievable Breakdown In India And UK

The definition of marriage in a legal sense that can be generally acceptable by everyone shall be:
the state of being united to a person of the opposite sex as husband and wife in a legal, consensual and contractual relationship recognized, sanctionable and dissolvable only by the law.[1] The specific provisions of marriage and divorce vary across the world, all the countries have separate laws that deal with such affairs and in this research paper we will be studying the irretrievable breakdown of marriage in two countries that are India and UK.

Both the countries have separate laws that deal with marital affairs as well as divorce for example in India two people can get married under special marriage act, Hindu marriage act etc. If they match the requirements as said by the law. In the same way even, UK also has various marriage acts under which people can marry if they match the requirements. In the same way there are provisions for divorces also that we are going to discuss in detail specially emphasising upon the irretrievable breakdown of marriages.

In India divorces can be granted under various, before 1955 there was no such act under which divorce can be granted because it was a belief in Hinduism that a married couple is a match made in heaven and must not be separated, however after 1955 a concept of divorce was added in the Hindu marriage act that could also be applied to marriages existing before its enactment[2].

Such a provision regarding divorce is also mentioned in the section 27 of the special marriage act 1955. Both these acts provide the provision of divorce to people who have been married under the same act[3].

Irretrievable breakdown of marriage can be defined as a situation in which either or both the parties wishes to no longer live together and the relationship is damage to a point that it cannot be repaired and continuing the marriage will only further cause loss and damage to the parties.

In both the countries, India and UK, provisions of irretrievable breakdown of marriage exist they may or may not be mentioned exclusively but they have been applied. It is necessary to focus on the definition of irretrievable breakdown of marriage because of the provisions in UK as in UK divorce can be granted under irretrievable breakdown but in India it cannot be however in UK we have some conditions that we must fulfil in order to prove the irretrievable breakdown while in India there are some conditions given under the various marriage acts that must be fulfilled that does not include irretrievable breakdown as one but they are somewhat similar to the conditions in the UK marriage act that are needed to prove the irretrievable breakdown of the marriage, however irretrievable breakdown is not explicitly a ground for divorce in India.[4]

The laws dealing with divorce in India are mentioned under the marriage acts. Under the Hindu marriage act 1955 section 13 it is mentioned that the party can approach a competent court that has a jurisdiction to entertain such petitions and apply for divorce that means a legal separation of two persons of the opposite sex who desire to respect and honour each other.

The same provision also lies under the section 27 of the special marriage act and they both are not exactly same but do have a lot of similarities and mention the grounds for divorce. It is to be noted that out of all the grounds of divorce mentioned under these sections irretrievable breakdown of marriage is not a valid ground for divorce.

The law commission of India and the judiciary have put forwards the demand to the legislature to add the provision of irretrievable breakdown of marriage in the constitution since they have realised that it is the need of the hour as such provisions must be there in all the countries[5]. Even though irretrievable breakdown of marriage is not mentioned in the marriage acts in India it has been enforced in the country and in this research paper we shall focus upon it by understanding the case of Saroj Rani vs Sudarshan Kumar Chadha[6].

We will be emphasising upon the facts of the case in the later part of the research paper but in this case a suit for divorce reached the Supreme Court of India where the court stated that the marriage has broken down and it is evident and the parties can no longer live together as husband wife and if the situation is such then it is better to close the chapter and enforced the irretrievable breakdown of marriage under article 142 of the constitution of India.

Article 142 of the Indian constitution gives the supreme court the power to pass any order or decree that shall be considered necessary in order to deliver justice in any matter or in any case that lies pending before it. Even though in India Irretrievable breakdown of marriage is not a ground for divorce, such cases establish a weak link in it as in such cases the supreme court can enforce irretrievable breakdown of marriage even without the consent of either of the spouses. We shall be discussing more such cases in the later part of the research paper.

Talking about UK, irretrievable breakdown of marriage is the only thing that must be proved in court in order for a divorce to be granted under the matrimonial causes act 1973. According the act, a petition for divorce can be filed to court by either of the parties on the ground that the marriage has broken down irretrievably[7].

In order to prove that the marriage has broken down irretrievably the petitioner has to prove one or more of the following conditions. The respondent has been involved in committing and because of it the petitioner cannot be comfortable living together anymore or the respondent has been behaving in a way that makes the petitioner uncomfortable or if the respondent has deserted the petitioned for 2 years after the presentation of the petition or if the parties have lived apart for a period of 5 years. Hence, we can say in order to show a marriage as irretrievable and unworkable in UK one must prove adultery, unreasonable behaviour, desertion for 2 years or a contested divorce for 5 years.

Methodology
Doctrinal method of research was used in this research paper as all the information mentioned in this is collected from various statutes, act and laws that were mentioned in the various books. Also comparative methodology is applied in order to compare the conditions in both the countries that are India and UK because it is also important to get aware of the culture of the countries if we are going to study about the laws of divorce.

Research Questions
  1. Is irretrievable breakdown of marriage a ground of divorce in India
  2. What is meant by an irretrievable breakdown of marriage in UK?
  3. How can article 142 of the Indian Constitution be applied in order to grant an irretrievable breakdown of marriage?
Research Objectives
  1. Can divorce be enforced in India on the grounds that the marriage is irretrievable
  2. To compare the culture of India and UK to understand the laws regarding divorce
  3. To study the conditions that must be fulfilled in order to grant a divorce in India and UK
  4. To understand the article 142 of the Indian constitution and its application in irretrievable breakdown through case laws.

Literature Review
Irretrievable Breakdown of Marriage: a Ground for Divorce by Kusum[8]:
This is a an article published in the journal that starts with talking about marriages in India stating that marriages are made in heaven but the modern day marriages are vulnerable and complex and discussed upon the judicial and legislative opinion of India with regard to the matrimonial laws.

The article talks about the days when under the Hindu law divorces were unknown and compares the situation with the modern day scenario and how the system seeks to grant divorce on the basis of irretrievable breakdown of marriage. Recommendations in the seventy first report prepared in April 1978 regarding the irretrievable breakdown have also been mentioned and in the later half the section 13 of the Hindu marriage act has been emphasised upon.

Irretrievable Breakdown of Marriage as an Additional Ground for Divorce by Jaya V.S[9]:
This journal article written by Jaya V.S. starts off by telling the readers how marriage is the core reason why civilization can exist and further on goes talking about the provisions of divorce under the section 13 of the Hindu marriage act and how the legislation has worked to make the provisions of divorce but still has not added any clause under section 13 that speaks of irretrievable breakdown of marriage.

The article talks about the importance of the institution of marriage and the consequences if the understanding is missing stating that such marriages need to be dissolved and has discussed some theories such as guilt theory and consent theory.

Adultery and Intolerability by M.D.A. Freeman:
This article named Adultery and Intolerability in the journal The modern Law review talks about how adultery is responsible for making a marriage irretrievable because after the respondent has committed adultery, the respondent may find it hard to live with the respondent and has focussed on some case laws.[10]

Irretrievable breakdown of marriage by Vidisha:
This research paper talks about the history of Hindu law talking about the various cultural practices that were followed that before the year 1955 focusing upon the idea of matches made in heaven because of which it was believed that a married couple has to stay together forever and because of this the concept of divorce was not much known before the Hindu marriage act got amended in 1955.

The later half of the research paper talks about the various amendments that's have been introduces to the marriage and divorce laws also telling that the supreme court however grant a divorce declaring the marriage to be irretrievably broken down under article 142 of the Indian constitution in order to deliver justice.[11]

An Analysis of Irretrievable Breakdown of Marriage as a Ground for Divorce by Saema Jamil[12]:
This is a research paper that grounds for divorce and provides an analysis of the various laws related to marriage also giving examples by talking about their application by mentioning various case laws. The first half of the research paper talks about talks about the various laws and their application while the later half talks about the changes that can be brought in the Hindu marriage act.

Result And Discussion
  1. Irretrievable breakdown of marriage
    Irretrievable breakdown of marriage means a marriage that has broken down to a point that it is almost irreparable and no matter whatever steps are taken, even after counselling and guidance both the spouse cannot live together and continuing the marriage will only cause further damage to them and it is beneficial to grant divorce under such circumstances.
     
  2. Notions in Hinduism regarding marriage and divorce
    Hinduism is a religion in which it was believed that marriages are matches made in heaven and it was believed that the bond of a husband and wife is supposed to be permanent and eternal and because of this the concept of divorce was not really known in Hinduism because of which before the Hindu marriage act, there were no provisions for divorce.
     
  3. Provisions in the Hindu marriage act regarding divorce
    The Hindu marriage act 1955 allows the laws for divorce and that apply to Hindu, Buddhist, Jain and Sikhs. Under the section 13 of the act the grounds can be a voluntary sexual intercourse with someone else, cruelty, desertion for continuously more than 2 years, ceasing to be hindu by conversion and being incurable of unsound mind and other than this the section 13B provides for divorce by mutual consent however there are no provisions for irretrievable breakdown of marriage.
     
  4. Provisions for irretrievable breakdown of marriage in UK
    According to the matrimonial causes act 1973, divorce can only be granted if the party in the court can prove the irretrievable breakdown of marriage and in order to do that there are various conditions that are mentioned under section 1.1 of the matrimonial causes act 1973 that are if the respondent has committed adultery and the petitioner cannot live with the respondent or if the respondent has behaved unreasonably and the petitioner cannot live comfortable or if the respondent has deserted the petitioner for 2 years or if the parties have lived separately for 5 years.
     
  5. Enforcement of article 142 of the Indian constitution in affairs of irretrievable breakdown of marriage
    Even though irretrievable breakdown of marriage is no ground for divorce being granted in India, the supreme court does believe that continuing a marriage that is emotionally dead and cannot be repaired is fruitless and it only causes harm to both the parties and continuing it any further will only result in giving trauma to both the parties and hence it is always better if such marriages come to an end because of which the supreme court shall enforce article 142 of the Indian constitution that gives the Supreme court a unique power to complete justice between both the parties involved.

    Article 142 can be enforced when the existing statutory laws cannot provide a remedy such as in the case of Naveen Kohli v. Neetu Kohli[13] in which the supreme court granted divorce under article 142 and calling their marriage irretrievable broken. In such cases the court shall declare the marriage irretrievably broke down and grant divorce and we shall be discussing such type of cases through various cases laws in this research paper.
     
  6. Analysing the conditions required for divorce in India and in UK
    In order to compare and analyse the irretrievable breakdown of marriage in India and UK we need to analyse the conditions required to get a divorce because in India irretrievable breakdown is not a ground for divorce but it is a ground of divorce in UK and hence we need to start at the base and compare the conditions required to get a divorce in both the countries.

    We are going to compare the conditions required for divorce because the conditions required to prove a marriage as irretrievably broken down in UK there are some conditions mentioned under section 1.1 of the matrimonial causes act 1973 that are also somewhat similar to the conditions required for a divorce to be granted under the section 13 of the Hindu marriage act.

    So in order to analyse and compare irretrievable breakdown of marriages in India and UK we shall be comparing the article 13 of Hindu marriage act with the section 1.1 of the matrimonial causes act 1973 that we will be carefully doing by studying case laws and also taking into consideration the power of article 142 of the Indian constitution keeping in mind that it only grants the power to the supreme court and not all the cases reach supreme court
Sources:
  1. Hindu Marriage Act 1955
  2. Special Marriage Act 1955
  3. Matrimonial Causes Act 1955
  4. The constitution of India
  5. Marriage and Divorce in England by Freeman M.D.A
  6. 71st Report of Law Commission in India.
  7. Irretrievable Breakdown of Marriage as a Ground for Divorce- Need for Inclusion by B.D. Aggarwal
End-Notes:
  1. POTHEN, S. "Divorce in Hindu Society." Journal of Comparative Family Studies 20, no. 3 (1989): 377-92. Accessed July 10, 2020. www.jstor.org/stable/41602038.
  2. Diwan, Paras. "The Hindu Marriage Act, 1955." The International and Comparative Law Quarterly 6, no. 2 (1957): 263-72. Accessed July 10, 2020. www.jstor.org/stable/755668.
  3. Dhagamwar, Vasudha. "Women Who Use the Hindu Marriage Act: A Profile." India International Centre Quarterly 12, no. 1 (1985): 29-41. Accessed July 10, 2020. www.jstor.org/stable/23001354.
  4. B. D. Agarwala, Irretrievable Breakdown of Marriage as a Ground for Divorce- Need for Inclusion (1997)8 SCC (J) 11
  5. 71st report of law commission in India 1978
  6. 1984 AIR 1562
  7. FREEMAN, M.D.A. "Marriage and Divorce in England." Family Law Quarterly 29, no. 3 (1995): 549-66. Accessed July 10, 2020. www.jstor.org/stable/25740046.
  8. Kusum. "Irretrievable Breakdown Of Marriage : A Ground For Divorce" Journal of the Indian Law Institute 20, no. 2 (1978): 288-303. Accessed July 7, 2020. www.jstor.org/stable/43950531
  9. V.S., Jaya. "Irretrievable Breakdown Of Marriage As An Additional Ground For Divorce." Journal of the Indian Law Institute 48, no. 3 (2006): 439-44. Accessed July 7, 2020. www.jstor.org/stable/43952052.
  10. Freeman, M. D. A. "Adultery and Intolerability." The Modern Law Review 35, no. 1 (1972): 98-103. Accessed July 7, 2020. www.jstor.org/stable/1094082.
  11. Vidisha S. Ambade. Irretrievable Breakdown Of Marriage (2015). Accessed 8July2020. https://www.termpaperwarehouse.com/essay-on/Irretrievable-Breakdown-Of-Marriage/395474
  12. Jamil, Saema, An Analysis of Irretrievable Breakdown of Marriage as a Ground for Divorce (October 10, 2015). Law Mantra Online Monthly Journal Vol 3 (Issue 1), Available at SSRN: https://ssrn.com/abstract=2672107
  13. AIR 2006 SC 1675

Also Read:
  1. Irretrievable Breakdown of Marriages
  2. Irretrievable Breakdown of Marriage: A Special Ground For Divorce
  3. Divorce Cannot Be Granted only on Ground of Irretrievable Breakdown of Marriage: Delhi HC
  4. Should Irretrievable Breakdown Be The Ground of Divorce In Personal Laws of India
  5. Irretrievable Breakdown Of Marriage Vis-A-Vis Hindu Law In India
  6. Irretrievable breakdown of marriage - Divorce lawyers

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