This Project has been submitted by

Ms. Vidhisha S. Ambade

ID No: 214083

On Family Law

During the Winter Semester 2015

IRRETRIEVABLE BREAKDOWN OF MARRIAGE

INTRODUCTION

Marriages in India are defined as bonds made in heaven and solemnized on earth. For Hindus it

is a sacrament, for Muslims it is a sanctified contract and for Christians a sacred knot1.

Complexity of the modern society and its consequences such as fast changing socio economic

conditions, the disintegration of joint family structure, the rapid development of industrialization

and urbanization, education, employment and laws giving equal status and rights to women, led a

tremendous impact on the institution of marriage. Few decades ago divorce was considered as an

evil, the grounds of divorce were very limited and it was sought only under compelling

circumstances. Positions have however, changed now. Marriage is no longer treated as an

insoluble union. Truth be told, there has been a considerable legislative and judicial interference

in the sphere of marital laws during the past few decades all over the world. In view of the

evolving times, divorce laws are being substantially modified and liberalized.2 Though divorce

laws vary across jurisdictions, most countries follow two basic approaches to divorce viz. fault

based and no-fault based.

In India, the Hindu Marriage Act, 19553 for Hindus and the Special Marriage Act, 19544 for

marriage between two individuals regardless of their religious persuasion, are based on the ‘fault

based’ or ‘matrimonial offence’ based theory of divorce.5 But during the past few decades, many

eminent lawyers, writers and judges have raised the question whether divorce between two

individuals should be based on fault of a party or on the breakdown of the marriage. The latter is

known as the irretrievable breakdown theory. The researcher, in this project, will start by

discussing the Irretrievable Breakdown Theory in brief. This will immediately be followed by

the status of law in India and the recommended amendments which will be discussed with the

help of the 71st Law Commission Report6. Then the researcher will deal with subsequent cases

1 P. Sarkar, Irretrievable Breakdown of Marriage, http://www.legalserviceindia.com/articles/irrbdom.html.

3 Act No. 25 of 1955.

4 Act No. 43 of 1954.

5 Rakesh shukla - Supreme court Lawyer, The fault theory v. the breakdown theory of divorce, Infochange news and

feature, available at http://infochangeindia.org/women/judicial-interventions-and-women/the-fault-theory-vs-

the-breakdown-theory-of-divorce.html.

6 Law Commission of India, The Hindu Marriage Act, 1955- Irretrievable Breakdown as a ground of divorce,

that adopted the principles of the theory and persuaded the Law Commission to bring forward its

217th report7. The report then became a Bill8 which was amended and re-amended and even

lapsed. Rest assured, the journey of ‘irretrievable breakdown’ from a theory to a bill is indeed an

THE IRRETRIEVABLE BREAKDOWN THEORY

Limiting the ground of separation to a specific offense or marital inability, it is urged, causes

injustice in those situations where the circumstances are such that albeit none of the parties is at

fault, or the deficiency is of such a nature, that the parties to the marriage would prefer not to

reveal it, yet there has emerged a circumstance in which the marriage is unable meet the

expectations.9 The marriage has all the outside appearances of marriage, yet none of the truth. As

is frequently put pithily, “the marriage is only a shell out of which the substance is gone”10. In

such a situation, it is expressed that there is hardly any utility in keeping up the marriage as a

front, when the emotional and other essential factors of a marital union have vanished11.

After the marriage has ceased to exist in substance and in all actuality, there is no explanation

behind denying separation. “When the matrimonial relationship has ceased to exist de facto, it

should, unless there are special reasons to the contrary, cease to exist de jure also.”12The parties

alone can determine whether their shared relationship gives the satisfaction which they look for.

Separation ought to be seen as an answer and an escape route out of a troublesome situation.

Such separation is unconcerned with the wrongs of the past, yet is concerned with bringing the

parties to terms with the reality and by working out the most acceptable condition whereupon

they may control their relationship in the changed circumstances.13

Impelled by contemporaneous advancements in the western world, the Delhi High Court in the

case of Ram Kali v. Gopal Das14 suggested the need of presenting a no-fault ground of divorce in

(Law Com No.71,1978).

7 Law Commission of India, Irretrievable breakdown of marriage- another ground for divorce,

(Law Com No 217, 2009).

8 The Hindu Marriage (Amendment) Bill,2013 (pending).

11 Radhika Chitkara, Between Choice and Security, NLS Newsletter, 2014, 21(3), p. 847–865 (2011).

12 Ladder v Ladder (1931) New Zealand Law Reports 876 quoted in Jeffries “matrimonial fault-is it now relevant”

(1972) New Zealand Law Journal 513, 515.

situations where there is no plausibility of cohabitation between the parties. This was the time

when marriage in several jurisdictions was experiencing a tectonic movement from being a bond

solvent just on desolation of conjugal obligations to a relationship of decision and satisfaction.15

Taking its sign from these "modern" advancements of reconsidering the conjugal bond, the Law

Commission of India, during the term of Shri Shanti Bhushan as the Minister of Law, presented

its 71st report16 on the matter of exclusively including Irretrievable Breakdown as a ground for

71ST LAW COMMISSION REPORT

The report is laid down in Eight Chapters, and tries to cover all the aspects of this newly

proposed theory of divorce and its implications with respect to the Indian context.

Chapter one18 is an introduction and statement of purpose to the report. The Delhi High Court in

the case of Ram Kali v. Gopal Das19 had observed,

“It would not be practical and realistic approach, indeed it would be unreasonable and inhumane,

to compel the parties to keep up the façade of marriage even though the rift between them is

complete and there are no prospects of their ever living together as husband and wife.”

The law commission then took up the matter on a reference made by the Government of India in

the Ministry of Law, Justice and Company Affairs20. It also refers to a suggestion by a

distinguished jurist who questioned the adequacy of the Hindu Marriage Act,1955 in resolving

cases where the marriage has completely broken down.

Chapter two21 deals with the current law situation as per the Hindu Marriage Act, 1955. The

current statutory laws stating the grounds of divorce are present in sections 13, 13A and 13B of

Hindu Marriage Act,1955. Section 13(1) and 13(1A) deals with certain grounds on which either

the wife or the husband may seek divorce. These include adultery, cruelty, desertion, conversion

16 Law Commission of India, The Hindu Marriage Act, 1955- Irretrievable Breakdown as a ground of divorce,

(Law Com No.71,1978).

20 Note of the Minister of Law, Justice and Company Affairs dated 3rd November, 1977 recorded in Legislative

Department File No. F. 14(4)/68-Leg.II Vol. XII, page 27.

to another religion, mental disorder, virulent and incurable leprosy, communicable veneral

disease, renunciation of worldly pleasures, partner missing for not less than 7 years and no

resumption of cohabitation or restitution of conjugal rights for more than a year. Sub-section (2)

of section 13 lays down certain grounds like, being guilty of rape, sodomy, bestiality etc. on

which only the wife may seek divorce. Section 13B provides provision for dissolution of

marriage by mutual consent. Both the parties have to jointly present a petition before the court

after living apart for one year.

It may be noted, that Hindu Marriage Act, 1955 portrays three categories of grounds for

dissolution of marriage. The first is fault based where either of the spouses may seek divorce on

other’s fault. The second is by frustration due to specific circumstances. The Third is by consent

of both the parties. There is, however no category which encompasses a situation where the

marriage has broken down - except to a very limited extent as mentioned in section 13(1A).

Chapter three22 and four23 deal with the theory of irretrievable breakdown, and its merits and

demerits respectively. Chapter five24 addresses the question of retention of other grounds of

divorce in case irretrievable breakdown is introduced into the act. The Law Commission here

does not favour the omission of other grounds of dissolution of marriage citing the same opinion

by a High Court Judge. In chapter six25 the commission makes a point of allowing divorce on the

ground of irretrievable breakdown made subject, inter alia, to a condition where there must be

proof that the parties have lived apart for a period of three years. The “safeguards” for welfare of

children and prevention of any hardship is dealt with in chapter seven26. Finally chapter eight27

lays down the amendments to section 13 introducing section 13C,13D,13E.

MEANWHILE IN COURTS…

The Sections 13 (1-A) and 13-B of the Hindu Marriage Act 1955 were found to be deficient in

managing certain circumstances relating to marital cures. Under the fault grounds though the

marriage may have been disintegrated, the parties were forced to reside together. The fault of the

accused was to be put under the compartments given under the law leading to allegations and

counter allegations by both the parties. It would likewise happen that the applicant may not be

given relief due to lack of proof even after a long drawn fight in court. The working of the

divorce laws over a time of few decades uncovered that getting a separation on the premise of

marital grounds detailed under the law was not just time devouring and nerve breaking, but also

included a ton of badgering and shame28. Section13-B likewise could not be utilized in specific

situations. It was dependent upon the shared assent of the parties to the separation. In the event

that one of the parties was not eager to give consent, the Court couldn’t pass a decree of divorce.

Such a instance emerged in the cases of Jayshree v. Ramesh29 and Nachhattar Singh v. Harcharan

In the decade long case of Dastane v. Dastane31, the husband’s petition for separation was

rejected on the technical ground of condonation. The marriage in this case was totally ruined

with no scope for reconciliation. This case speaks for the dire need of a ground of irretrievable

breakdown. Also it was beneficial for children born in such marriages to live with one loving

parent than to cope up with two constantly fighting parents.32

In the Supreme court judgment of V. Bhagat v. D Bhagat,33 honorable Justice B.P.Jeevan Reddy34

said that divorce could not be granted merely because of counter allegations and delay in

proceedings. There had to be ‘extraordinary features’ in the facts of the case to grant divorce

since irretrievable breakdown was not a ground in itself. After scrutinizing the evidence on

record, the court could take this unusual step in cases where there was an ‘insoluble mess’ and it

was in ‘interest of both the parties’ to dissolve the marital tie. Calcutta High Court relied on the

same judgment while deciding the case of Sukhendu Chatterjee v. Anjali Chatterjee35. In Ashok

Hurra v. Rupa Bipin Zaveri36, Supreme Court relying on the 71st Law Commission Report,37

exercised the powers conferred on it by section 14238 to grant divorce by mutual consent under

28 Kusum, Divorce by Mutual Consent, 29 JILI (1987), pp. 110-111.

30 AIR 1986 P&H 201.

31 AIR 1975 SC 1534.

32 Harinder Boparai, Reappraisal of Bars to Divorce: A comparative Study, 26 JILI (1984)

34 Hon’ble Mr. Justice B.P. Jeevan Reddy - Former Judge, Supreme Court of India.

35 (1995) 2 CALLT 464 HC

36 AIR 1997 SC 1266. See also Madhuri Mehta v. Meet Verma (1997) 11 SCC 81.

38 Article 142 : (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or

section 13B of Hindu Marriage Act. But certain safeguards such as lump sum amount of ten lakh

rupees and litigation costs had to be provided to the wife by the husband. The same was done in

Kanchan Devi v. Pramod Kumar Mittal39. The Supreme Court held, “in view of the peculiar facts

and circumstances of the case and being satisfied that the marriage between the appellant and the

respondent has irretrievably broken down and that there is no possibility of reconciliation, we in

exercise of our powers under Article 14240 of the Constitution of India hereby direct that the

marriage between the appellant and the respondent shall stand dissolved by a decree of divorce”.

Hence it is clear that despite the fact that the High Court utilized the articulation

"irretrievable breakdown of marriage", the Supreme Court maintained a strategic

distance from it. Rather, on particular circumstances, the procurements of Article 142 of

the Constitution were summoned as no other lawful provisions could apply41.

Anyhow it leaves such issues unsolved as just the Supreme Court can summon the provisions

under Article 142 of the Constitution. No other Court has such power.

In cases like Romesh Chandra v. Savitri42 and Chanderkala Trivedi v. Dr. S.P. Trivedi43, where

one of the parties was not in favour of the divorce and counter-accusations were made by both

the parties, the Court indirectly applied the principle of irretrievable breakdown and held that the

dissolution of marriage was in the best interest of both the parties and the society in general.

From the late 1900s we observe a trend of divorce given on the ground of cruelty in the cases of

irretrievable breakdown of marriage.

In Abha Agarwal v. Sunil Agarwal44, where the marriage was dissolved on the ground of cruelty,

the court said “There is irreparable breakdown in the matrimonial tie. Fountain of love and

affection has completely dried up and the stage of irreversibility and irretrievability has

make such order as is necessary for doing complete justice in any cause or matter pending before

it, and any decree so passed or order so made shall be enforceable throughout the territory of

India in such manner as may be prescribed by or under any law made by Parliament and, until

provision in that behalf is so made, in such manner as the President may by order prescribe.

39 AIR 1996 SC 1515: I (1997) DHC 257 (SC).

41 Vijender Kumar, Irretrievable Breakdown of marriage: Right of a married couple, 4 NLR 15 (2008-2009).

42 AIR 1995 SC 851: 1995 (2) SCC 7.

43 JT 1993 (4) SC 644.

45 See also Chetan Das v Kamala Devi, cheeranjeevi v lavanya alias sujatha rishikesh Sharma v saroj sharma

In Naveen Kohli v. Neelu Kohli46, we observe that the Supreme Court earnestly considered the

principle of irretrievable breakdown and referred to the 71st law commission report along with

cases like V. Bhagat v. D. Bhagat47. The court here said, “Ultimately, it is for the Legislature

whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our

considered opinion the Legislature must consider irretrievable breakdown of marriage as a

ground for grant of divorce under the Hindu Marriage Act, 1955”.

217TH LAW COMMISSION REPORT, 2009

In view of the case of Naveen Kohli v. Neelu Kohli48 and the recommendation by the Supreme

Court of India, the law commission suo moto took up the study of the subject. The commission

accordingly made its recommendations in the 217th law commission report.

In the report, the Law Commission of India reiterated its suggestions given in the 71st Report49

and cited relevant Indian cases and recommendations by various courts. In Jorden Diengdeh v

S.S. Chopra50, the supreme court observed, “It appears to be necessary to introduce irretrievable

breakdown of marriage and mutual consent as grounds of divorce in all cases.…We suggest that

the time has come for the intervention of the legislature in those matters to provide for a uniform

code of marriage and divorce and to provide by law for a way out of the unhappy situation in

which couples like the present have found themselves.”51 The commission also relied on cases

like Kanchan Devi v Pramod Kumar Mittal52,Savitri Pandey v. Prem Chandra Pandey53, Samar

Ghosh v. Jaya Ghosh54 and Sanghamitra Ghosh v Kajal Kumar Ghosh55, to convince the

legislature for inclusion of irretrievable breakdown as a ground for divorce under the ambit of

the Hindu Marriage Act,1955 and the Special Marriage Act,1954.

46 AIR 2006 SC 1675. See also Durga Prasanna Tripathi v. Arundhati Tripathi AIR 2005 SC 3297

: 2005 AIR SCW 4045 : (2005) 7 SCC 353.

THE MARRIAGE LAWS (AMENDMENT) BILL

On 10th June 2010, the Union Cabinet of India approved the introduction of the Marriage Laws

(Amendment) Bill,201056 to amend the Hindu Marriage Act,1955 and the Special Marriage

Act,1954. The Bill was presented in the Lok Sabha and the Rajya Sabha on August 2010 by the

then Minister of Law and Justice, Shri M. Veerappa Moily. It was then referred to the Standing

Committee on Personnel, Public Grievances, Law and Justice.

On 1st March 2011, the Department-Related Parliamentary Standing Committee on Personnel,

Public Grievances, Law and Justice submitted its 45th Report on Marriage Laws (Amendment)

Bill,201057 under the chairmanship of Shrimati Jayanthi Natarajan58. The Committee was in

agreement with the proposal of introducing ‘irretrievable breakdown’ as a separate ground for

divorce. However, it felt that bill failed to address certain legal as well as social issues.

The Bill proposed to uproot the six month waiting period necessary in case of a joint petition for

divorce by mutual consent. The Committee opined that the said proposal was not in connection

with the principal objective of the Bill. The existing waiting period had to be retained to ensure

protection of the institution of marriage.

The Bill conferred on the wife, the right to oppose divorce on the ground of ‘grave financial

hardship’. The Committee commented that the term ‘grave financial hardship was ambiguous

and open to diverse interpretations. It suggested that the terms ‘grave financial hardship’ and

‘irretrievable breakdown of marriage’ be defined accurately.

The Bill included provisions for maintenance of ‘children born out of marriage’, but it impliedly

excluded ‘adopted children’ from its ambit. The Committee requested the government to clear its

position on the rights of ‘adopted children’

Finally, the Committee concluded by making a point that some of the provisions of the Bill could

be explosively misused against women. It recommended the government to reexamine some

clauses and introduce a revaluated and all-inclusive Bill.

57 Rajya Sabha, Parliament of India, Department Related Parliamentary Standing Committee on Personnel, Pulic

Grievances, Law and Justice,45th Report of The Marriage Laws Amendment Bill, 2010.

58 Shrimati Jayanthi Natarajan – Union Minister of State (member of Indian National Congress).

On these recommendations, the Rajya Sabha made the changes to the Bill in areas of Divorce

affecting children, share in immovable and movable property of husband and the process of

Divorce by mutual consent.

Arun Jaitley on May 2012 called on the government to think through its proposed legislation. He

argued “this law in current form may end up creating unusual hardships for women in India. No

person can benefit of their own default. In that case Irretrievable Breakdown is different from the

conventional jurisprudence on divorce, in that the person who causes the default can ask for the

divorce”. He stresses on the fact that nations that allow this ground of divorce had a strong

support system for women and children. He added that though the Supreme Court could interpret

and suggest laws, the elected representatives knew the realities better.

The Group of Ministers (GoM) set up to decide on certain issues with respect to the Bill made

its recommendations during July,2013. The GoM was headed by then Defence Minister A K

Anthony. A new clause 13F was discussed which provided compensation for the wife in a

situation where the ancestral property of the husband could not be divided.

Official amendments as on 2nd August 2013 included changes to clause 1,2,3,6 and 7 of the Bill.

These amendments were done by Shri Kapil Sibal before moving the Bill at a sitting of the Rajya

Sabha. The Rajya Sabha on 26th August 2013 finally passed the Bill (which included clause 13F)

by voice vote. The Marriage Laws Amendment Bill,2013 that was passed by the Rajya Sabha

lapsed before consideration by the Lok Sabha due to dissolution of the lower house on the

completion of its term.

The UPA government had struggled for unanimity on the Bill since its introduction in the

Parliament. It went back to the then Cabinet on four occasions for various changes. In November

2014, the newly appointed Law Minister D V Sadananda Gowda proposed to take the Bill to the

Union Cabinet for a final nod. As of now, the fate of the Bill rests on the decisions of the NDA

Therefore, what originated as a discussion on upholding individual choice and pursuit of

happiness gradually evolved into a question of the economic contribution of wives to marriage,

and their entitlements to marital property through the introduction of the community of property

TOTAL WORDS: 3056 (excluding footnotes, references and appendix)

1. Mulla, Principles of Mahomedan LawM. Hidayatulla and Arshad Hidayatulla, (19th ed.).

2. Kusum, Family Law Lectures- Family Law 1.

3. Agnes, F. Marriage, Divorce and Matrimonial Litigation, Vol. II,2011.

4. Law Commission of India. 217th Report of the Law Commission of India: Irretrievable

Breakdown of Marriage – Another Ground for Divorce. 2009.

5. Law Commission of India. 71st Report of the Law Commission of India: The Hindu Marriage

Act, 1955 – Irretrievable Breakdown of Marriage as a Ground for Divorce. 1978.

6. Vijender Kumar, Irretrievable Breakdown of marriage: Right of a married couple, 4 NLR 15

7. Radhika Chitkara, Between Choice and Security, NLS Newsletter,