Irretrievable Breakdown of Marriage in India

Understanding Irretrievable Breakdown of Marriage

Irretrievable breakdown of marriage refers to a situation where a marriage has reached a point of complete breakdown, with no possibility of reconciliation or restoration. It is a concept that recognizes the practical reality that some marriages have become so dysfunctional and unbearable that continuing the relationship would only lead to further misery and unhappiness for the parties involved. They do not live with each other nor would like to leave each other. Mediations fail, half-hearted compromises or settlements are not acted upon and despite spending several years of their marital life, doing court rounds, they are back to square one.

While not formally recognized as a ground for divorce in India, the judiciary has begun acknowledging irretrievable breakdown as a valid reason for ending a marriage in certain cases.

Examples of irretrievable breakdown could include the following -

• Prolonged separation and no prospect of reconciliation: If the spouses have been living apart for an extended period, have made genuine efforts at reconciliation but have been unsuccessful, and there is no realistic hope for future reconciliation where one party refuses to give consent for divorce despite the marriage being practically dead, it may be seen as an irretrievable breakdown.

• Abandonment: In cases where a husband abandons his wife, flees abroad, and never returns, leaving the wife with her parents can be considered an example of an irretrievable breakdown of marriage. In such a situation, the husband's actions demonstrate a complete disregard for the marriage and an unwillingness to fulfil his marital responsibilities. The wife may suffer emotional distress, financial hardships, and social stigma as a result of the husband's abandonment, making it nearly impossible for the marriage to be salvaged.

• Incorrigible infidelity: In cases where one spouse has repeatedly engaged in infidelity, deception, or betrayal, and the trust between the spouses has been irreparably damaged, resulting in an inability to restore the foundation of the marriage, it may be seen as an irretrievable breakdown.

• Bigamy: In cases where one spouse enters into another relationship despite the first marriage being legally intact.

• Thorough incompatibility: When the marriage is marked by prolonged and unresolved disputes, such as financial conflicts, disagreements over child-rearing, or incompatible lifestyles, and the spouses are unable to find common ground or reach a reasonable compromise, it may be viewed as an irretrievable breakdown.

These examples highlight the need for a practical and liberal approach to address the despair of individuals trapped in unhappy marriages and allow them to seek relief from their misery.
 

Legal Provisions for Irretrievable Breakdown of Marriage in India

Currently, India does not have specific legal provisions for the irretrievable breakdown of marriage as a ground for divorce. The Hindu Marriage Act, the Special Marriage Act, and other personal laws in the country provide certain grounds for divorce, such as cruelty, adultery, desertion, and mutual consent. However, in recent years, there have been discussions and recommendations for recognizing irretrievable breakdown as a valid ground for divorce.

Despite the absence of specific provisions, the judiciary in India has shown flexibility in some cases by granting divorces based on the concept of irretrievable breakdown under its inherent powers of doing complete justice.

The recognition of the irretrievable breakdown of marriage as a ground for divorce would provide a legal framework to address the plight of individuals trapped in unhappy and dysfunctional marriages. It would offer an alternative for couples who are unable to reconcile their differences and would promote a more practical and compassionate approach to resolving marital disputes.
 

Irretrievable breakdown of marriage under the Hindu Marriage Act

The Hindu Marriage Act does not currently recognize irretrievable breakdown of marriage as a specific ground for divorce. However, despite the absence of such legislation, individuals still approach the courts seeking dissolution of their marriages on the basis that the relationship has irretrievably broken down, and there is no purpose in preserving an empty and futile union. In the pursuit of justice and the best interests of the parties involved, the judiciary has exhibited a wide range of approaches and ambivalence towards this issue. Article 142 of the Indian Constitution empowers the Supreme Court to pass any decree or order necessary for ensuring complete justice in pending cases. Utilizing this authority, the apex court has brought an end to the suffering of individuals trapped in unhappy marriages in numerous instances, while refraining from interference in other cases.

The Law Commission has recommended the inclusion of new sections, namely 13C, 13D, and 13E, in the Hindu Marriage Act to facilitate divorce when a marriage has irretrievably broken down. This would be evidenced by the parties having lived separately for a continuous period of three years or more immediately prior to filing the divorce petition. It is also proposed that the wife should retain the right to contest the divorce case on the grounds of financial hardship. In 2010, the Marriages Laws (Amendment) Bill was introduced in Parliament, and in 2013, the Marriages Laws (Amendment) Bill, 2013 was passed by the Rajya Sabha. However, despite these efforts, the enactment of these proposed amendments is still pending.

Overall, the absence of a specific provision for the irretrievable breakdown of marriage in the Hindu Marriage Act has led to varied approaches by the judiciary, and attempts have been made to introduce legal reforms to address this issue. The proposed amendments aim to recognize the reality of broken marriages and provide relief to individuals trapped in such distressing situations.
 

Irretrievable breakdown of marriage under Muslim Law

Under Muslim law, the concept of irretrievable breakdown of marriage is not explicitly recognized as a ground for divorce.

However, Section 2(ix) of the Dissolution of Muslim Marriage Act, 1939 serves as a residual ground where the courts have discretionary powers. In cases where the wife has been living separately from her husband for a significant period of time and seeks dissolution of marriage based on irretrievable breakdown, the court has the authority to grant divorce. The courts have recognized that even under Islamic principles, a wife has the right to seek dissolution of marriage through Khula in such circumstances.

Several cases, such as Amna Khatoon v. Kashim Ansari (AIR 2001 Jhar 28) and Zainaba v. TA Abdul Rashred (AIR 2013 Ker 54), have witnessed the courts granting divorce on the grounds of irretrievable breakdown of marriage under Section 2(ix). In Mohammed v. Sainaba Umma (1987 (1) KLT 712), the court acknowledged that when a marriage reaches a point of intolerable hostility and the partners have lived with hostility for an extended period, it is legitimate to infer that the marriage has practically broken down, and the law should recognize and terminate the relationship. The court determined that continuing the marriage would inflict further mental cruelty on the parties.

These cases demonstrate instances where the courts have recognized irretrievable breakdown of marriage in Muslim law and have used their discretionary powers to grant divorce accordingly.
 

Judicial Interpretation of Irretrievable Breakdown of Marriage

There have been several Apex Court judgments in India that have addressed the concept of irretrievable breakdown of marriage. Some notable judgments are provided as follows:

1. Shilpa Sailesh v. Varun Sreenivasan (2023): In this case, the Constitution Bench of the Supreme Court recognized that Article 142 empowers it to dispense justice, equity, and good conscience and allows for the exercise of discretionary powers beyond the limitations of procedural and substantive law. However, the Bench emphasized the need for responsible use of these powers while safeguarding the fundamental principles of public policy. The Court held that the Supreme Court can waive the cooling-off period prescribed under Section 13B of the Hindu Marriage Act, 1955, if it deems the marriage to be irretrievably broken down, even if one party opposes the divorce. Factors such as the duration of cohabitation after marriage, the last time the parties cohabited, nature of allegations, attempts at dispute settlement, and a sufficiently long period of separation were to be considered in determining irretrievable breakdown.

2. Naveen Kohli v. Neelu Kohli (2006): In this landmark judgment, the Supreme Court recognized the irretrievable breakdown of marriage as a valid ground for divorce. The court held that if a marriage has irretrievably broken down and there is no chance of reconciliation, it is in the best interest of the parties to grant a divorce.

3. Anil Kumar Jain v. Maya Jain (2009): The Supreme Court held that even if the parties have not lived separately for the required statutory period, the court can still grant a divorce on the ground of irretrievable breakdown of marriage if it is satisfied that the marriage has completely broken down and there is no chance of the parties reconciling.

4. Vishnu Dutt Sharma v. Manju Sharma (2009): The Supreme Court clarified that the irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, but it can be taken into consideration as a factor while deciding on divorce petitions.

5. AVGV Ramu v. AS R Bharathi (2019): In this case, four years after their marriage, the parties entered into an agreement for the dissolution of their marriage. They filed a petition under Section 13B of the Hindu Marriage Act, but the wife did not appear in court. The husband appealed to the High Court and then the Supreme Court. Despite multiple notices, the wife did not appear. The Supreme Court, exercising its powers under Article 142, held that since the parties had been living apart for more than four years, the marriage had irretrievably broken down and dissolved it.

6. Munish Kakkar v. Nidhi Kakkar (2020): In this case, the parties lived together for only two and a half months before the wife moved to Canada due to marital differences. After living apart for over 16 years and filing multiple cases against each other, the Supreme Court concluded that their marriage was long over and dissolved it on the grounds of irretrievable breakdown, despite the lack of the wife's consent.

7. R Srinivas Kumar v. R Shametha (2019): In this case, the husband filed a divorce petition after his wife mostly lived with her parents due to strained relations. The petition was initially dismissed, but the husband appealed to the High Court and then the Supreme Court. The Supreme Court held that the marriage was practically dead as the parties had lived apart for 22 years. It granted the divorce, stating that preserving a marriage that is emotionally dead and irretrievably broken would add to the misery of both parties.

8. Rishikesh Sharma v. Saroj Sharma (2007): In this case, the parties had been litigating for over two decades, and their only daughter had already gotten married. The Apex Court granted the divorce, as the desire of the wife to live with her husband after such a long period was deemed not genuine.

9. Praveen Singh Ramakant Bhadauriya v. Neelam Praveen Singh Bhadauria (2019): In this case, the parties had a short period of cohabitation and then lived separately for around two decades. The Supreme Court utilized its powers under Article 142 to bring the marriage to an end based on an amicable separation agreement.

These judgments reflect the evolving approach of the Indian judiciary towards recognizing and considering the concept of irretrievable breakdown of marriage as a valid ground for divorce, even though it is not formally recognized in the legislation.
 

Challenges in Proving Irretrievable Breakdown of Marriage

In Indian courts, proving an irretrievable breakdown of marriage as a ground for divorce can present certain challenges. Some of these challenges include:

• Lack of legislative recognition: The Hindu Marriage Act, which governs divorce proceedings for Hindu marriages, does not explicitly recognize an irretrievable breakdown of marriage as a ground for divorce. This absence of a specific provision can make it challenging to establish and prove irretrievable breakdown as a valid reason for seeking a divorce.

• Subjective nature: Irretrievable breakdown of marriage is a subjective concept, and its assessment depends on the individual circumstances of each case. Proving irretrievable breakdown requires presenting substantial evidence and convincing the court that the marriage has reached a point where reconciliation is impossible. This can be challenging as it involves establishing the breakdown based on subjective factors such as lack of harmony, mutual understanding, and irreconcilable differences.

• Burden of proof: The burden of proving an irretrievable breakdown falls on the party seeking a divorce. They must provide sufficient evidence to convince the court that the marriage has irretrievably broken down. This can involve presenting documentation, testimonies, or other forms of evidence to substantiate their claim.

• Requirement of separation period: In cases where parties have not lived separately for a specific duration as required by the law, proving irretrievable breakdown becomes more challenging. The courts may require a minimum period of separation to consider the breakdown as irretrievable. If the parties have not been living apart for the required period, they may face difficulties in establishing the irretrievable nature of the breakdown.

• Judicial discretion: Since the irretrievable breakdown of marriage is not a legally recognized ground for divorce in India, the courts have the discretion to decide whether to grant a divorce on this basis. The lack of a clear legislative framework on this issue leaves room for different interpretations and judicial discretion, making the outcome uncertain and dependent on the individual judge's perspective.

?Despite these challenges, the Indian judiciary has started acknowledging the concept of irretrievable breakdown of marriage and considering it as a valid ground for divorce in certain cases. However, the absence of a formal legislative provision recognizing this ground remains a hurdle for parties seeking divorce on this basis.
 

Merits And Demerits of the Theory of Irretrievable Breakdown

The theory of irretrievable breakdown of marriage is a legal concept that allows for the dissolution of a marriage when it is no longer possible for the couple to live together as husband and wife.

The merits of this theory include that it provides a way for couples who are no longer compatible to end their marriage without having to prove fault or wrongdoing on the part of either spouse. This can help reduce the emotional trauma associated with divorce and make the process less adversarial.

On the other hand, some argue that the theory of irretrievable breakdown of marriage can lead to an increase in divorce rates and undermine the sanctity of marriage as an institution. Additionally, there are concerns that it may be used as a way for one spouse to unilaterally end the marriage without the other's consent or knowledge.
 

Irretrievable Breakdown of Marriage vs. Other Grounds for Divorce

In India, divorce can be sought on various grounds, including cruelty, adultery, desertion, and mutual consent. However, the concept of irretrievable breakdown of marriage has gained recognition and importance in recent years, despite not being explicitly provided as a ground for divorce under the existing legislation.

Unlike other grounds for divorce, which require proving specific acts or circumstances, irretrievable breakdown of marriage focuses on the overall deterioration and breakdown of the marital relationship. It recognizes that sometimes marriages reach a point where there is no possibility of reconciliation or restoration of a healthy relationship.

One of the key distinctions between irretrievable breakdown of marriage and other grounds for divorce is the absence of fault. While other grounds often require proving misconduct or wrongdoing by one of the spouses, irretrievable breakdown does not attribute blame to either party. It acknowledges that the marriage has simply become unviable and continuing it would only lead to further distress and unhappiness.

Proving an irretrievable breakdown of marriage can present challenges, as there is no specific provision in the Hindu Marriage Act to support this ground. The burden of proof lies on the petitioner to demonstrate that the marriage has irreversibly broken down and there is no possibility of reconciliation. In contrast, other grounds for divorce have specific legal requirements that need to be established, such as cruelty, adultery, or desertion. These grounds focus on specific actions or circumstances that have significantly harmed the marital relationship. They often involve proving fault and may require presenting evidence or witnesses to support the claims.

It is worthwhile to mention that recognition of the irretrievable breakdown of marriage as a ground for divorce varies among different courts and judges. While some courts have accepted it as a valid reason, others may be more hesitant and rely on existing grounds for divorce.
 

Counselling and Mediation in Irretrievable Breakdown of Marriage Cases

In cases where a marriage has irretrievably broken down and divorce seems imminent, counselling and mediation play a crucial role in assisting the parties involved. These processes aim to promote communication, understanding, and resolution of disputes in a peaceful and amicable manner.

Counselling serves as a platform for the parties to express their concerns, emotions, and grievances in a supportive and confidential environment. Trained counsellors or therapists provide guidance and help individuals navigate through the challenges of separation and divorce. The focus is on facilitating effective communication, promoting empathy, and exploring possible solutions to resolve conflicts.

Mediation, on the other hand, involves the intervention of a neutral third party, the mediator, who helps the spouses engage in constructive dialogue and negotiate mutually acceptable terms for separation or divorce. The mediator facilitates discussions, encourages compromise, and assists in reaching a settlement that takes into account the interests and needs of both parties and, if applicable, the welfare of any children involved.

The use of counselling and mediation in cases of irretrievable breakdown of marriages can offer several benefits. It allows the parties to have a voice, express their perspectives, and actively participate in the decision-making process, rather than leaving the fate of their marriage solely in the hands of the court. Counselling and mediation can help reduce hostility, bitterness, and animosity between spouses, fostering a more cooperative and respectful approach. It can help individuals cope with the emotional challenges of divorce and develop strategies for moving forward and rebuilding their lives.

While counselling and mediation can be effective in many cases, they may not be suitable or successful in all situations. In cases involving domestic violence, abuse, or severe power imbalances, counselling and mediation may not be appropriate or safe. In such instances, the court may prioritize the safety and well-being of the affected party and take necessary legal measures to address the situation.

The Indian legal system recognizes the value of counselling and mediation in family disputes, including cases of irretrievable breakdown of marriage. Family courts and other legal forums often encourage or mandate the parties to explore these alternative dispute resolution methods before resorting to litigation. This approach seeks to reduce the adversarial nature of divorce proceedings and promote settlements that are more satisfactory and tailored to the specific needs of the parties.
 

Impact of Irretrievable Breakdown of Marriage on Maintenance, Property Division, and Child Custody

The concept of irretrievable breakdown of marriage has a significant impact on various aspects of family law in India, including maintenance, property division, and child custody. When a marriage is deemed irretrievably broken, it affects the rights and responsibilities of the parties involved, particularly in relation to financial support, distribution of assets, and the well-being of children.

Maintenance, or alimony, is a crucial consideration in divorce cases. In instances of irretrievable breakdown of marriage, the courts take into account various factors such as the financial capacity of the parties, their respective needs, and the standard of living during the marriage. The courts may order maintenance to be paid by one spouse to the other, depending on the circumstances. The duration and amount of maintenance can vary, and it is typically determined based on the needs of the recipient spouse and the ability of the other spouse to pay.

Property division is another important aspect impacted by irretrievable breakdown of marriage. In India, property acquired during the marriage is generally considered joint marital property and subject to equitable distribution. In cases of irretrievable breakdown, the courts may consider factors such as the duration of the marriage, financial contributions, and the needs of the parties involved. The courts strive to ensure a fair division of assets, taking into account the individual circumstances of each case.

Child custody is a sensitive issue that requires careful consideration in cases of irretrievable breakdown of marriage. The welfare and best interests of the child are paramount. The courts prioritize the child's well-being and strive to maintain a stable and nurturing environment. Factors such as the child's age, health, and emotional needs, as well as the ability of each parent to provide care and support, are taken into account when determining custody arrangements. The courts may grant joint custody, sole custody, or visitation rights, depending on the specific circumstances of the case.

Each case is unique, and the final decisions regarding maintenance, property division, and child custody are made by the courts based on the specific facts and circumstances presented. The impact of irretrievable breakdown of marriage on these aspects varies case by case, and the courts aim to provide fair and just resolutions that prioritize the well-being and best interests of all parties involved, particularly any children affected by the divorce.
 

Why do you need a lawyer for Divorce due to an Irretrievable Breakdown of Marriage in India?

Obtaining a decree of divorce due to an irretrievable breakdown of marriage can be a challenging and emotionally taxing process in India. It is highly recommended to engage the services of a knowledgeable family or divorce lawyer to navigate the legal complexities involved. A divorce lawyer specializes in matrimonial reliefs and can provide valuable assistance in gathering relevant information and handling extensive paperwork, relieving you of these burdensome tasks. By entrusting the legal formalities to the lawyer, you can focus on yourself and your family during this difficult time.

With their extensive experience in handling cases of irretrievable breakdown of marriage, an experienced divorce lawyer can offer expert advice tailored to your specific circumstances. They possess in-depth knowledge of the relevant laws and legal procedures, ensuring that you are well-informed and aware of the best course of action to pursue in your particular case.

Seeking guidance from expert divorce/matrimonial lawyers through LawRato's Free Legal Advice can also be advantageous, as it provides valuable insights into your case. By hiring a divorce lawyer, you can minimize the risk of making significant mistakes that could have adverse financial consequences or necessitate further legal proceedings in the future. A Divorce Lawyer specializing in matters of irretrievable breakdown of marriage can guide you through the process, ensuring that all necessary steps are taken to achieve a swift and successful resolution.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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