Notes on divorce on the ground of irretrievable breakdown of marriage

 Under the Hindu Marriage Act, 1955, the concept of irretrievable breakdown of marriage is not explicitly recognized as a ground for divorce. The Act provides specific grounds for divorce, such as cruelty, adultery, desertion, conversion to another religion, mental disorder, and incurable diseases. However, irretrievable breakdown of marriage is not mentioned as a standalone ground for divorce under this Act.

The concept of irretrievable breakdown of marriage refers to a situation where the marriage has broken down irreparably, and there is no possibility of reconciliation between the spouses. It is a subjective assessment of the state of the marriage, indicating that the relationship has reached a point of no return.

While the Hindu Marriage Act does not explicitly mention irretrievable breakdown as a ground for divorce, the Supreme Court of India has recognized it as a valid consideration in certain cases. The court has held that if the marriage has completely broken down, and there is no chance of the spouses living together harmoniously, the court may invoke its inherent powers to grant a divorce on the basis of irretrievable breakdown.

It is important to note that the court's decision to invoke the concept of irretrievable breakdown of marriage is discretionary and depends on the specific circumstances of each case. The court will consider factors such as the duration of the marriage, efforts made for reconciliation, and the overall impact on the parties involved.

1) IN THE SUPREME COURT OF INDIA

Decided On: 21.03.2006

Naveen Kohli Vs. Neelu Kohli Hon'ble Judges/Coram:

B.N. Agrawal, A.K. Mathur and Dalveer Bhandari, JJ.

Citation: AIR 2006 SC 1675.

https://www.lawweb.in/2019/08/leading-supreme-court-judgment-on.html

2) Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.

Law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented concrete instances of human behavior as bring the institution of marriage into disrepute.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 151 of 2004

Decided On: 26.03.2007

Samar Ghosh Vs. Jaya Ghosh

Hon'ble Judges/Coram:

B.N. Agrawal, P.P. Naolekar and Dalveer Bhandari, JJ.

Citation:(2007) 4 SCC 511

https://www.lawweb.in/2017/06/what-is-fault-theory-and-breakdown.html

3) A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned counsel for the appellant.

Supreme Court of India

Vishnu Dutt Sharma vs Manju Sharma on 27 February, 2009

Bench: Markandey Katju, V.S. Sirpurkar

Citation; 2010(1) MHLJ 290 SC.

https://www.lawweb.in/2015/08/whether-court-can-grant-divorce-on.html

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