Abstract
In India, generally, a divorce is granted under the Hindu Marriage Act 1955 and Special Marriage Act 1954 if there is any fault on one party of a marriage on grounds such as adultery, cruelty, desertion, conversion to another religion, mental disorder, communicable diseases and if a person has not been heard for more than 7 years. The parties of the marriage can also get a divorce by mutual consent if both agree to dissolve the marriage. But, there are some circumstances where the marriage has deteriorated to a point where it cannot be repaired, even if one party does not agree to the divorce. The marriage is beyond repair, and there are no chances for reconciliation if spouses are living separately for a prolonged period of time. In such cases, the marriage has completely broken down emotionally and physically. The Supreme Court of India also shows its concern for marriages, which have been completely broken down through its various judicial pronouncements under article 142 to do complete justice. However, to date, there is no explicit provision for including the irretrievable breakdown of marriage as a ground for divorce. This paper will explore the notions of fault and no-fault divorces and analyze the key case laws of the Supreme court to analyze the implications of the present legal framework. This paper also seeks to suggest some measures that must be taken into account if the irretrievable breakdown of marriage added as a ground for divorce in India. The researcher will use the doctrinal method of research by referring to primary and secondary sources.
Keywords: Divorce, Hindu Marriage, Irretrievable Breakdown, Supreme Court,
Legal Framework
Introduction
Marriage in India is considered as sacramental and everlasting in character. Divorce was considered as a social evil in ancient days and not accepted. But laterfirmly and steadily this concept did not find favour with social reformers, who wanted that a woman must not be confined with a man who is completely lack of all the moral values that a reasonable husband should have.[1] Divorce was included in laws such as Hindu Marriage Act 1955 and Special Marriage Act 1954 to protect the lives of spouses whose marriages had been destroyed. The legislature has been conscious of the social developments and the need for making the remedy of divorce available in more and more situations. However, it is to be noted that none of the grounds enumerated in section 13 of the Hindu Marriage Act speaks of the irretrievable breakdown of marriage as a ground for divorce.[2]
Irretrievable Breakdown of Marriage is defined as: “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 resurgence of spousal duties.” In other words, an Irretrievable breakdown of a marriage can be defined as a failure in the conjugal relationship or such situations adverse to that relationship that no reasonable probability remains of the spouses remaining together as husband and wife for mutual happiness and support.[3] In India, only the Supreme Court has the power to grant a divorce under this ground in certain exceptional situations. The court, unlike in divorces based on mutual consent in which both parties agree to dissolve their marriage it, can grant a divorce even if one party does not consent for such. So, the Supreme Court uses its inherent power under Article 142 of the Constitution to administer full justice to the parties.
The irretrievable breakdown of marriage in India can be traced from the 71st Law Commission Report of India 1978, which deals with the notion of Irretrievable Breakdown of Marriage. The Report raised questions as to the magnitude and conditions on how Irretrievable Breakdown of Marriage can be added as a ground for divorce under the Hindu Marriage Act. The report also dealt with the merits and demerits of the irretrievable breakdown with some suggesting amendments in existing legal framework. But, the report had not come into existence due to some practical difficulties. The Law Commission of India once more proposed in its 217th Report from 2009 that irretrievable collapse of the marriage can be added to the list of grounds for divorce. In response to that and the recommendations of the Apex court, the Marriage Laws (Amendment) Bill 2010 and the Marriage Laws (Amendment) Bill 2013 were subsequently introduced. But according to the present legislative language, a marriage’s simple breakdown cannot be used as a justification for divorce under Indian personal law. As a result, there have been numerous instances when the marriage was actually irreparably broken, but the courts, constrained by legal formalities, were unable to provide the parties with any substantial remedy.[4]
[1] Family Law: A Husband’s Guide to Matrimonial Disputes Pg.no:36
[2]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. http://www.jstor.org/stable/43952052.
[3] Divya K., A Bird’s Eye View on Irretrievable Breakdown of Marriage in India with Special Reference to Landmark Judgments, 3 INDIAN J.L. & LEGAL RSCH. 1 (2021).
[4] Srivatsav, P.S., 2024. An Evaluative Study on Irretrievable Breakdown of Marriage: A Pressing Requirement for Its Inclusion as an Extra Basis for Divorce Under Hindu Law. Journal of Family & Adoption Law, 7(1), pp.15-25p.