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In the month of October 2019 ,the Supreme Court of India, the highest judicial court of the country delivered a judgment regarding ‘irretrievable breakdown of marriage’ that helped a man fighting a legal battle for divorce for the last two decades.
The marriage took place in the year 1993 and relations went downhill therefore the couple had been living separately for the past 22 years. The concerned person’s plea was rejected by a lower court and the High Court of Andra Pradesh because his wife refused to give consent for such legal separation.
A bench consiting of Justices M R Shah and S K Kaul came to this man’s rescue by invoking the SC’s inherent powers under Article 142 of constitution, allowing the petition stating that marriage broke ‘irretrievably.’
Article 142 of the constitution basically deals with enforcement of decrees and orders of the apex court, that is, the Supreme Court and states that such court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing ‘complete justice’ in any cause or matter pending before it.
Generally, the competent court is approached when both the parties mutually consent for permanent legal separation but in this case the powers granted to the Supreme Court under Article 142 of the Indian Constitution was invoked because of the absence of consent for divorce from the wife’s side.
The bench involved in this case also rejected the wife’s plea wich stated that the marriage cannot be revoked without her consent and granted relief to the husband saying the marriage was unworkable and emotionally dead.
What is irretrievable breakdown?
The term ‘irretrievable’ literally means something that cannot be recovered or recouped. Hence irretrievable breakdown means the marriage has completely broken down resulting in the couple living separately for a significantly long period of time, and there is no hope or even an iota of chance for the couple to get back together as man and wife, emotionally and physically.
The party/parties should provide with enough proof that the marriage is irreparable and has been so for quite a time for irretrievable breakdown to be a valid ground for divorce.
Recomendation for its inclusion as ground for divorce
The conception for including “Irretrievable Breakdown” as a ground for divorce goes back to 1978 when the 71st Report of Law Commission of India dealt with it as a ground for divorce under the Hindu Marriage Act, 1955. It dicussed about the extents and conditions concerning the same.
The 2009 report of the mentioned commission also revolved around the same concept stating marriages should be legally dissolved when ‘wed-lock becomes a deadlock’
According to the report, in the year 1921 New Zealand was the first commonwealth country to grant divorce on this ground. The court of New Zealand cited that carrying a marriage that is practically dead is not in the interest of both the parties and the couple should not be forced by the law to remain wife and husband without being remotely interested in carrying the marriage forward.
The Supreme Court through series of verdicts has asked the centre to make amendments in law in order to introduce irretrievable breakdown as a ground for divorce but the law remains as it is and the couple is denied divorce even when they are not living together for numerous years and the marriage is unfixable. As a result, the Apex court has invoked Article 142 various times to grant divorce.
- A.Jayachandra v. Aneel Kaur (2005) – The Supreme Court found that the marriage was broken beyond repair and granted divorce to the husband.
- Naveen Kohli v. Neelu Kohli (2006) – The Apex court observed that even though efforts were made to amicable settlements there was no cordiality left between the parties and therefore there was no possiblity of rekindling the marriage. In such cases divorce was the only option in interest of both the parties.
The marriage and divorce provisions of Indian citizens are governed by the separate personal laws of various religions.
Judicial separation and Divorce are dealt with under section 10 and 13 of Hindu Marriage Act, 1955 respectively. The various grounds over which a marriage can be dissolved and one can file for divorce are –
- Adultery – (having sexual intercousre with a person other than spouse) is a valid ground for divorce. The 1976 amendment states that adultery need not be continuous in its occurance. Even a single act of it is enough.
- If the petitioner has been treated with cruelty, mentally or physically.
- If a person is desserted by his/her spouse without any reason or consent of the person for more than 2 years.
- If any one of the partners has converted his/her religion and ceases to be a Hindu.
- If one of the partners is suffering from terminal or incurable diseases and which is communicable. For example, HIV-AIDS.
- Certain mental illnesses like schizophrenia are also included in this provision.
Under the Muslim Marriage Act of 1939, any woman married under the Muslim law can claim for a divorce if certain grounds fulfilled. For example,
- If she is not aware of the whereabouts of the husband for period of four years
- If the husband neglects the payment of maintenance for 2 years
- if the husband has been sentenced for a term exceeding 7 years
- if the husband is impotent, deprives his wife of legal rights, is gulity of cruelt, disrespects the wife when he has other wives etc.
Such acts provide divorce on the basis of Fault Theory, which means that the divorce is granted when either of the spouses are at fault. This also means that the divorce can be sought only be filed by the aggrieved party. And as of now, the personal laws does not provide with ‘irretrievable breakdown’ as a ground for divorce.
In The Hindu Marriage act, 1955 divorce can be sought after one year of judicial separation if there is no resumption of cohabitation between the parties nor observance of conjugal rights but, it involves consent of both husband and wife.
Need for its inclusion
Restricting the grounds of divorce to particular incidences or matrimonial disability is not adequate in today’s times. We see many cases of husband and wife living separately for long period of time because they simply do not want to stay together. In such cases living separately ensures better mental health, stabilty, peace and better functioning of individual.
There is no hope of the couple getting back together. In scenarios, where there are no efforts from both the sides, the irretrievable breakdown allows the parteners or one of the partners to terminate the marriage at will. If the couple has no hope or future then keeping them together just for the sake of ‘law’ is of no use to them as well as the society.
Marriage forms the basis of social institutions in the society. The act of getting married is considered as holy in all the cultures. What we need to understand is that people fall in love but they can also fall out of love. When people grow apart and become distant for a long period of time, divorce on the basis of irretrievable breakdown sounds like the best option.
However, accoding to some judges of High Court, it is possible that what may appear to one person to be irretrievable may appear to another as not yet beyond repair. Hence, it is the duty of the legislature and judiciary to consider and study all the aspects involved with this subject before explicitly stating irretrievable breakdown as a ground for divorce.
Author: Aditi Mishra from ILS Law College, Pune.
Editor: Tamanna Gupta from RGNUL, Patiala.