Envisioning The Concept Of Irretrievable Breakdown Of

Marriage

Pratim Sarkar Lecturer-in-Law, Haldia Law College - West Bengal

Marriages, as they define, are made in heaven and solemnized on earth. It is a sacrament for Hindus, a sanctified
contract for Muslims and a sacred knot for Christians. Husbands and wives vow for each other, yet there have been
innumerable cases of betrayals by the spouses.

The complexity of modern society and its possible consequences such as fast changing socio economic conditions,
the disintegration of the joint family structure, the rapid development of industrialization and urbanization,
education and 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 indissoluble union. In fact, there has been a considerable legislative and judicial
interference in the sphere of matrimonial laws during the past few decades all over the world. In view of the
changing times, divorce laws are being substantially modified and liberalized.

It was first in the Hindu Marriage Act, a form of irretrievable breakdown of marriage theory was introduced through
the amendment of 1976, by which clauses (i) and (ii) have been inserted.

Bombay High Court in one occasion remarked: The enactment of Sec. 13(1A) is a legislative recognition of the
principle that in the interest of society if there has been a breakdown of the marriage there is no purpose in
keeping the parties tied down to each other.

Section 13(1A) provides:

Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a
petition for dissolution of marriage by a decree of divorce on the ground-

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one
year or upward after the decree for restitution of conjugal rights in a proceeding to which they were parties.

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one
year or upward after the passing of a decree for restitution of conjugal rights in a proceeding to which they were
parties.

A further initiative towards the recognition of the principle of breakdown was the introduction of mutual consent as
a ground of divorce in 1976 by incorporating Sec. 13B in the Hindu Marriage act.

The Law Commission in its Seventy-First Report submitted in 1978, strongly recommended to introduce breakdown
of marriage as a ground for divorce in addition to fault grounds in the divorce law. When parties are living separate
for a consecutive period of three years or more with no prospect of reconciliation, it definitely indicates, the
breakdown of that marriage. Reports also recommended certain safeguards to check unbridled divorces. Not only
the Law Commission, jurists, academicians and the courts have also been making plea for introducing this ground
in the matrimonial laws.

In the year of 1981, a Bill was introduced to give effect irretrievable breakdown as a ground for divorce, but it did
not accept as some scholars apprehended that unscrupulous husband would desert their wives and take
advantage of this provision.
Several cases have been decided by the courts, where the marriage was in fact, utterly broken but the courts
applying the technicalities of the law , subsisted the marriage tie and could give any meaningful relief to the
parties.

One view can be cited against including the item irretrievable breakdown of marriage as one of the grounds of
dissolution of marriage is that there is a risk in giving recognition to a situation where the marriage would be
deemed to have been broken down. Such a unilateral act, unless made an issue by the wronged spouse, cannot be
deemed to be a valid ground to take away the legal right, which has accrued by solemnization of marriage at the
instance of the spouse who is found guilty of any wrong.

In Asha v. Krishna Lal (1990 Del.1), Delhi High Court held that irretrievable breakdown of marriage is not
contemplated to be one of the grounds for dissolution of marriage. Thus by itself it can not be taken to be a ground
for decree of dissolution of marriage.

Similar view has been taken in Smita Dilip Rane v. Dilip Dattaram Rane (AIR1990 Bom.84), wherein it has been laid
down that simply because the marriage has broken down and the parties can not live together, a decree for
divorce can not be granted if the statute does not specifically provide for that. In Suresh Prasad Sharma v. Rambai
Sharma [1 (1999) DMC311(MP)], also, divorce was refused on the plea of absence of the irretrievable breakdown
ground.

Later on, the judiciary has been adopting a more liberal and practical approach and several judgments of different
courts prove the fact that they no longer stick to the traditional notion of inviolability of the marriage tie.

One of the cases relating to irretrievable breakdown of marriage, is V. Bhagat v. D v. Bhagat (AIR1994 SC710), the