IRRETRIEVABLE BREAKDOWN OF MARRIAGE

“Irretrievable breakdown of marriage’ means the situation that exists when either or both spouses are no longer able or willing to live with each other, thereby destroying  their matrimonial relationship with no hope of resumption of spousal duties. Irretrievable breakdown of marriage has not been included in Hindu Marriage Act, 1955 as a ground for divorce.

Earlier in V. Bhagat v. D. Bhagat, (1994) 1 SCC 337, the court held that irretrievable breakdown of marriage cannot be the sole ground for the dissolution of marriage. Thereafter in Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675, the court held that if there are circumstances where there is no possibility of reconciliation of marriage and the marriage has become totally incompatible that it is a case of complete dislike and aversion and the staying together of spouses will not serve any purpose then in such cases it would be equitable to grant divorce. In Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379, it was held that since irretrievable breakdown is not a ground mentioned in the Hindu Marriage Act, 1955 therefore divorce cannot be granted on that ground.

In Anil Kumar Jain v. Maya Jain, AIR 2010 SC 229 it has been held that until Parliament adds irretrievable breakdown as a ground of divorce in Hindu Marriage Act, 1955, only Supreme Court has the power under article 142 of Constitution to grant divorce in such cases. In Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, the court stated that the Apex Court uses its extraordinary power to dissolve a marriage as having irretrievable broken down only when it is impossible to save the marriage and all efforts made in that regard would, to the mind of court, be counter-productive. Even if the chances are infinitesimal for the marriage to survive, it is not proper for the court to use its power under Article 142 to dissolve the marriage as having broken down irretrievably.

Law Commission in its 71st Report, 1978 dealt with the issue of irretrievable breakdown of marriage. The Commission observed that restricting the ground of divorce to particular offence or matrimonial disability causes injustice to those cases where the parties are not at fault but still it is not possible to continue with the matrimonial bond.

Following discussion of several years, Parliament introduced Marriage Laws Amendment Bill, 2010 proposing amendments to the Hindu Marriage Act, 1955 to make ‘irretrievable breakdown of marriage’ as a ground of divorce by inserting Section 13C in the Act. The Bill could not be passed by both Houses of Parliament.

To conclude, we can say that even though irretrievable breakdown of marriage is expressly not a ground for divorce, in appropriate cases, the courts have dissolved the marriage on this ground where there is no possibility of conciliation between the spouses. Yet, the need for an amendment to make irretrievable breakdown of marriage as a new ground for divorce cannot be denied.

Author & Former Judge

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