Navigating the Legal Landscape of Irretrievable Breakdown of Marriage in India

This Article is written by “Vani Chandra”, Pursuing LLM degree at Lovely Professional University, Punjab. This article explains the hot topic of Legal Landscape of the Irretrievable Breakdown of Marriage in India

Introduction

Marriage, a cornerstone of societal structure and familial bonds, is an institution that has undergone significant evolution over time. Traditionally, divorce was often regarded as a last resort, necessitating the establishment of fault-based grounds where one party had to prove the wrongdoing of the other to obtain a legal dissolution. However, as societal attitudes shifted and the understanding of the complexities within marital relationships deepened, legal systems around the world, including India, began to adapt to these changing dynamics.

Concept of irretrievable breakdown of marriage

The concept of irretrievable breakdown of marriage emerged as a response to the limitations and shortcomings of fault-based divorce systems. Recognizing that not all marital failures could be attributed to specific acts of misconduct, irretrievable breakdown introduced a no-fault ground for divorce. It signifies a situation where the marital relationship has reached a point beyond repair, acknowledging that attempting to assign blame may hinder the resolution process rather than facilitate it.

In A. Jayachandra v. Aneel Kaur[1], when the respondent gives priority to her profession over her husband’s freedom it points unerringly at disharmony, diffusion and disintegration of marital unity, from which the Court can deduce about irretrievable breakdown of marriage. The Court found the marriage irretrievably broken down and granted divorce to the husband. This is however very surprising, as many a times in the similar circumstances the court, rather than granting a decree for divorce has ordered for the restitution of conjugal rights holding the notion of a Hindu marriage being sacrosanct as the very foundation of decree for restitution. The idea behind the declaration of irretrievable breakdown of marriage is also based on the consent as it plays a major role in the occurrence of a valid marriage. Since consent is accorded primacy at the time of marriage, it follows that when one or both parties believe that the marriage has broken, they can petition for divorce. When both parties agree the marriage has failed, they can apply for divorce by “mutual consent”. When only one of the parties believes that the marriage is failing, it would be enabling for the party to seek divorce arguing that the marriage has broken down, despite the unwillingness of the other party to end the relationship

Background of this concept

The background of this concept is rooted in the desire to provide a more humane and pragmatic approach to divorce proceedings. By prioritizing the acknowledgment of irreparable damage over assigning fault, legal systems aimed to streamline the divorce process, reduce animosity between spouses, and focus on practical matters like asset division, spousal support, and child custody. Understanding the concept of the irretrievable breakdown of marriage is crucial to appreciate the legal, social, and emotional dimensions of this concept. It reflects a progressive shift in family law, acknowledging the complexity of human relationships and providing couples with a legal avenue for separation when attempts at reconciliation prove unattainable.

Divorce, which was historically stigmatized, has seen a significant shift in society attitudes, becoming increasingly normalized and accepted in current times. The prevailing cultural perspective on divorce has altered to recognize and comprehend the feelings of those involved. The shift in gender roles throughout time is one of the primary reasons for the acceptance of divorce. Women are now more financially self-sufficient and have better access to education and professional possibilities. As a result, individuals are less likely to stay in bad marriages just because they rely on their spouse financially. This greater independence has also given women the courage to leave marriages that are unsatisfying, if not abusive. In the recent case of Naveen Kohli v. Neelu Kohli[2], the Supreme Court held that situations causing misery should not be allowed to continue indefinitely, and that the dissolution of a marriage that could not be salvaged was in the interests of all concerned. The court concluded that the husband was being mentally, physically and financially harassed by his wife. It held that both husband and wife had allegations of character assassination against them but had failed to prove these allegations. The court observed that although efforts had been made towards an amicable settlement there was no cordiality left between the parties and, therefore, no possibility of reconnecting the chain of marital life between the parties

Another aspect that contributes to divorce acceptance is the emphasis on personal happiness, mental health, and autonomy. Individual happiness and self-fulfillment are now more valued in society than ever before. Couples are less likely to stay in relationships that do not bring them happiness, even if it means going through the divorce process. Regardless of how simple the process becomes, it is still difficult for the divorced couples and their respective families to go through the difficult process of proof. Recognizing this difficult procedure, legal systems around the world have streamlined divorce rules, making the process less expensive and time-consuming. Laws have also begun to promote equitable asset allocation, which has helped to decrease the financial burden of a divorce.

71st Report of the Law Commission of India (1978)

The idea of an irretrievable breakdown of marriage was covered by the Law Commission in its 71st report, which was turned in 1978. An important query regarding the Hindu Marriage Act of 1955 is addressed in the report. Whether the Act permits the irretrievable breakdown of a marriage to serve as a basis for divorce, and if so, to what degree and under what circumstances? According to the report, New Zealand was the first Commonwealth nation to establish the rule that a separation agreement lasting three years or longer could be the basis for a divorce petition to be filed in court as early as 1920. In 1921, the first instance in New Zealand where a divorce was granted on these grounds, the court decided that preserving a man and woman as husband and wife in law is not in the best interests of the parties or the public when matrimonial relations have actually ended. When that happens, the fundamental goal of marriage is defeated, and carrying on afterward is not only pointless but also devious. In matrimonial law, this statement has come to represent the breakdown principle in a classic way. According to the Law Commission, limiting divorce to situations involving matrimonial disability is unfair to those in which there is no fault at all or when there is fault but it is of a kind that the parties do not want to discuss and still the marriage cannot work out. It describes a state in which only a façade is left in place, having lost the emotional and other ties that are the foundation of a marriage. The commission concludes that divorce should be viewed as a solution and an escape route out of a difficult situation where a marriage has ceased to exist both in substance and in reality. A divorce of this type should be concerned with bringing the parties and their children to terms with the new situation and establishing a satisfactory foundation for regulating relationships in the changed circumstances. It is important not to dwell on the mistakes of the past.

In India, the recognition of irretrievable breakdown varies across different personal laws governing various religious communities. The Hindu Marriage Act, for instance, “Irretrievable breakdown of marriage” is a ground for divorce in India, as per Section 13B of the Hindu Marriage Act, 1955. The term refers to a situation where the marriage has broken down to such an extent that it is impossible to reconcile and continue the marital relationship. It is considered a no-fault ground for divorce, meaning that neither party is specifically blamed for the failure of the marriage, while other religious communities may have distinct legal provisions. But in general  Article 142 of Indian constitution plays very important role to provide justice where the legislature fails, the particular provision of the constitution provides a unique power to the Supreme Court to do “complete justice” between the parties, where, at times, the law or statute may not provide a remedy. In those situations, the court can put an end to a dispute in a manner that would fit the facts of the case.

Procedure for Divorce under Irretrievable Breakdown of Marriage-

Section 13B of the Hindu Marriage Act, 1955, provides for the procedure for divorce by mutual consent among Hindus. Below is an outline of the steps involved in obtaining a divorce under this provision:

• Living Separately: Before filing for divorce under Section 13B, the separation is a key condition to establish the irretrievable breakdown of the marriage. The parties must have lived apart for at least a year in order to file for divorce on the grounds of mutual consent. In Sandhya Rani v. Kalyanram Narayanan[3] reported in (1994) Supp. 2 SCC 588, this Court reiterated and took the view that since the parties are living separately for the last more than three years, we have no doubt in our mind that the marriage between the parties has irretrievably broken down. There is no chance whatsoever of their coming together. Therefore, the Court in such cases, grant the decree of divorce. The phrase “living separately” implies that the parties cannot cohabitate as husband and wife, but it makes no mention of the parties’ inability to share a residence in the event that they jointly file for divorce.  The fact that they cannot cohabitate as husband and wife is a crucial issue that needs to be addressed. The same was held by the Hon’ble Supreme Court in the case of Sureshta Devi v. Om Prakash[4]. Wherein it was made clear that living separately does not necessarily mean living in different places. The parties can be living together but not as spouses,

• Mutual Consent Petition: The phrase “Divorce by Mutual Consent” is self-explanatory; it simply means that the consent of both parties is required in order for the court to grant the decree of divorce. Both spouses need to jointly file a petition for divorce by mutual consent. The petition should contain the grounds for divorce and the terms of the settlement, including matters like alimony, child custody, and division of assets. However, if one of the couples during the waiting period or during any part of the process decides they do not want a divorce, they may unilaterally withdraw their consent. It is important to remember that the final divorce decree cannot be issued ex parte; instead, both parties must be present when the decree is issued. In Pradeep Pant & anr v. Govt of NCT Delhi[5], the parties were married and had a daughter from their wedlock. However, due to temperamental differences between them, they were not able to live together and decided to live separately. Despite putting their best efforts they were unable to reconcile their marriage and could not see themselves living together as husband and wife ever again. A divorce petition was jointly filed and issues such as maintenance and custody of their child were decided and agreed upon by both. The wife would get custody of their daughter and the husband would reserve visitation rights, it was mutually agreed upon by both of them. Both parties gave their free consent without any undue influence. The court observed that there was no scope of reconciliation and granted a decree of divorce. After filing a petition for divorce by mutual consent, the parties are given a waiting period of  6 months, also known as a cooling period and it may extend up to 18 months. During this time the parties must introspect and think about their decision. If the parties are still not able to live together after the cooling period, then the divorce petition shall be passed by the district judge. Whereas In Sureshta Devi v. Om Prakash[6], the wife’s consent was fraudulently obtained by the husband for filing a divorce. The wife was unwilling to give her consent for divorce and therefore she did unilaterally revoke her consent. Upon reading the judgment of the Supreme Court we can conclude that a party can unilaterally withdraw their consent if the same has not been freely given. After the first motion has been passed the parties will have agreed to settle on various issues such as alimony, custody of children and other marital expenses. Now, If one of the parties unilaterally withdraws their consent the other party may suffer prejudice that could be irreversible.

• Statements in Court: Both parties must appear in court and make statements individually, confirming their consent for the divorce. The court will examine whether the consent is voluntary and free from coercion.

• Cooling-off Period: The court imposes a mandatory “cooling-off period” after the filing of the petition. This period is typically six months but can be waived in exceptional circumstances. During this time, the court may encourage reconciliation or provide the couple with an opportunity to reconsider their decision. Regarding the waiting period that is outlined in Section 13B, the judiciary holds differing views. Conflicts have arisen when deciding whether the waiting period is required or directory. The Allahabad High Court ruled in Gandhi Venkata Chitti Abbai v. Unknown (1988)[7] that the waiting period was required. Nonetheless, the Madhya Pradesh High Court ruled in Dinesh Kumar Shukla v. Neeta (2005)[8] that the 6-month period stipulated in Section 13B is directory in nature and may be shortened if the case’s circumstances warrant it. The Apex Court has resolved this issue by ruling that, in certain situations, the waiting period under Section 13 B may be waived. It was  noted in the Amardeep Singh v. Harveen Kaur[9] case that the couple had internal conflicts and that their married life was not the greatest. The disagreements got really out of hand, and numerous criminal and civil cases were filed. They agreed to settle all of their differences and get a divorce by consent. The wife received permanent alimony, and the husband would have custody of their children. They just wanted a speedy divorce and asked to have the waiting period waived after all of these issues had been resolved amicably by the parties. The waiting period would only make the parties’ suffering worse because they could no longer be together. In light of this, the Hon’ble Supreme Court established that the six-month waiting period may be waived provided the court determines that the parties have resolved any outstanding issues regarding alimony and child custody and have lived apart for a minimum of one year. The Hon’ble Supreme Court further noted that the waiting period will only make the parties’ inability to coexist more miserable and painful. In a different K. Omprakash v. K. Nalini[10] case, the parties claimed to be having extramarital affairs because they were no longer happy in their marriage. The petitioner claimed that since they were living apart and hadn’t seen each other in over a year, there was no chance of them getting back together. They held each other responsible for their misery and pain. Although they both denied ever being in such relationships themselves, they accused one another of being involved in a string of extramarital affairs. The sole remaining course of action was to initiate a divorce through mutual consent. The marriage had reached a dead end and sustained irreversible damage. Both parties prayed for a speedy divorce and the waiting period to be waived. Pointing out that there was little chance of saving the marriage because the partners had lived apart for an extended period of time. The Hindu Marriage Act’s Section 13B (2) should only be interpreted as a directory, according to the High Court of Andhra Pradesh, rather than as a statutory requirement. As a result, the waiting period—which was previously required—remains optional.

• Second Motion for Divorce: After the cooling-off period, if the spouses still wish to proceed with the divorce, they can file a second motion. Both parties must reconfirm their consent for the dissolution of the marriage.

• Settlement Agreement: It is crucial for the couple to reach an agreement on issues like alimony, child custody, and division of assets. The court reviews the settlement to ensure it is fair and in the best interest of both parties. In Rajat Gupta v. Rupali Gupta[11], the court says that the agreement between the parties to settle their issues and opt for divorce by mutual consent is a binding agreement and a form of undertaking. If a party now unilaterally withdraws their consent, they would be in breach of their undertaking made before the court of law, resulting in civil contempt of court by willfully disobeying an undertaking. If the consent has to be withdrawn unilaterally, it must be done so on a just and reasonable ground and the other party must not suffer prejudice. Therefore, consent can be unilaterally withdrawn only in exceptional cases on reasonable grounds.

• Court Appearance: Both spouses are required to appear before the court for the second motion. The court may inquire about the reasons for seeking divorce and ensure that both parties are consenting willingly.

• Decree of Divorce: If the court is satisfied with the statements, consent, and settlement agreement, it grants a decree of divorce. The marriage is legally dissolved from the date of the decree.

• Registration of Divorce: The final step involves registering the divorce decree with the appropriate authorities to make it legally effective.

Judicial pronouncements

One of the first landmark case of Naveen Kohli vs. Neelu Kohli1 in 2006[12] wherein the Supreme Court upheld the Family Court’s conclusions that the Appellant had been subjected to the Respondent’s psychological, physical, and financial abuse to the point where their marriage was irreparably broken and held Irretrievable Breakdown of Marriage as a valid ground for granting a divorce and recommend the Legislature to amend the Hindu Marriage Act, 1955 to incorporate relevant provisions according to the judgment. Prior to this decision, the only grounds for divorce in India were specified under the Hindu Marriage Act, which included cruelty, adultery, desertion, conversion to another religion, and mental disorders.

Another judgment subsequent to the above followed K. Srinivas Rao vs D.A. Deepa[13] in the year of 2013, the Supreme Court held that held that the concept of Irretrievable Breakdown of Marriage can be applied to cases where the parties have been living separately for a considerable period, and the marriage has broken down irretrievably. Over the years, we can observe that whenever the parties to divorce need assistance to settle their matter of dispute, the courts have left no stone unturned and consider each case in a different manner as per the needs and circumstances of the parties. Courts as a matter of practice first made effects to restore the marriage unless it is a mutual consent divorce petition4. It all efforts fail, Courts proceeded with divorce

In a recent Supreme Court Judgment of Shilpa Sailesh vs. Varun Sreenivasan[14], the Constitution Bench headed by Justice Sanjay Kaul, faced the following issues- Whether the Hon’ble Court can exercise power under Article 142(1) of the Constitution of India, in view of the procedure prescribed under Section 13-B of the Hindu Marriage Act, 1955. Whether the Hon’ble Court can grant divorce under Article 142(1) of the Constitution of India when there is complete and irretrievable breakdown of marriage despite the other spouse opposing the prayer.

In the case of Hitesh Bhatnagar v. Deepa Bhatnagar (2011)[15], initially a divorce petition under Section 13 B of the Hindu Marriage Act was filed before the District Court, Gurgaon. The parties in the aforesaid case got married in 1994 and were thereafter blessed with a girl in 1995. However, due to certain differences, they started living separately, and since then they have been living separately, owing to which they filed for divorce under Section 13 B in the year 2001. Later on, when the case was in second motion, the wife withdrew her consent, although the husband still insisted on the grant of a decree of divorce. Due to a withdrawal of consent by one of the parties, the petition was dismissed by the Learned Additional Districts Judge, Gurgaon. The appellant husband, aggrieved by the order of the Learned Additional Districts Judge, Gurgaon, filed an appeal before the Punjab and Haryana High Court, which was again dismissed. Thereafter, the husband moved to the Supreme Court. The issue before the Supreme Court was whether consent can be withdrawn by one of the parties after filing a divorce petition under Section 13 B after the expiration of more than 18 months. The second issue before the court was whether divorce under Section 13 B can be granted after the withdrawal of consent by one of the spouses. The circumstances under which divorce was to be granted in spite of the withdrawal of consent by one of the parties were also to be laid down by the Apex Court. The Apex Court dismissed the appeal filed by the husband, stating that the courts only grant the decree of divorce when they are convinced beyond a doubt that the marriage is irreversibly broken down. However, in the present case, the wife is firm on her stand that for the future of her daughter, she is willing to put all the bitterness that exists between the parties behind her and is ready to live with her husband. In such a case, where there is still a chance that the marriage can work, granting divorce will not be appropriate. As far as the period of 18 months is considered, the court stated that this period is provided for speedy disposal of cases and is in no way a direction that specifies the period of withdrawal of consent. It was further stated by the Hon’ble Court that if the second motion in the divorce case does not begin within the period of 18 months, then the Court is not bound to pass a decree of divorce by mutual consent. It is to be noted that a second motion by both parties is not made prior to the completion of a period of 6 months from the date on which the case was filed.

Anil Kumar Jain v. Maya Jain (2009)[16]

Facts of the case

In the present case, the appellant husband filed the appeal before the Apex Court, seeking divorce under Section 13B and asking the court to invoke the extraordinary powers enunciated under Article 142 of the Constitution of India. The husband and wife, owing to the differences between them, filed a joint petition under Section 13 B seeking divorce by way of mutual consent. After the filing of the divorce petition, the learned lower court fixed a date for the further proceedings after asking the parties to wait for the six months statutory period. At the next date, the wife stated that, though she acknowledges the differences, she does not wish to dissolve the marital ties. On the other hand, the husband reiterated his stand. Based on the withdrawal of consent by the wife, the lower court dismissed the petition for divorce by mutual consent.

Being aggrieved by the order passed by the lower court, the husband filed an appeal before the Madhya Pradesh High Court. However, since the wife was firm with her stand that she does not want dissolution of their marriage despite the differences between the two, and hence the appeal filed by the husband was dismissed by the High Court. It further stated that the husband is free to file an appeal before the Apex Court. The Court said so, because the High Court does not have any such extraordinary powers, to grant divorce in such a situation when one of the parties has withdrawn their consent. Hence, present appeal was preferred by the husband before the Hon’ble Supreme Court.

Issue involved in the case

• Whether the court under Article 142 can grant the decree of divorce under Section 13B in the present case or not?

Judgement of the Court

The Apex Court opined that normally it is necessary that the consent of both parties subsist till the end of the divorce proceedings under Section 13B, and that withdrawal of consent by one of the parties leads to the dismissal of the petition. However, the Apex Court stated that when the proceedings under such circumstances move to the Supreme Court and the Court is satisfied that a divorce decree can be granted looking into the facts and circumstances of the case, it can invoke the power under Article 142 of the Constitution and grant the decree of divorce.

Devendar Singh Narula v. Meenakshi Nangia (2012)[17]

Facts of the case

In the present case, the marital ties between the parties subsisted merely on a superficial basis, and both parties had been living separately since their marriage. Three months after the marriage took place, the appellant filed a petition under Section 12 of the HMA, 1955. The matter went to mediation, and the parties decided to divorce by mutual consent. The learned family court fixed the next date owing to the statutory waiting period. In the meantime, parties approached the Supreme Court to invoke Article 142.

Issue involved in the case

• Whether divorce under Section 13B can be granted before the statutory waiting period provided under the Act or not?

Judgement of the Court

The Apex Court, looking into the facts and circumstances of the case and finding that there were no marital ties between the parties  at all and that the marriage only existed in name, granted divorce to the parties before the completion of the six months statutory period.

Shri Uttam Kumar Bose v. State of West Bengal (2023)[18]

Facts of the case

In the present case, the petitioner is a lawfully wedded husband, however, the married life of the petitioner and the respondent wife was not peaceful. The reason contended by the petitioner is the extremely hostile, adamant, and inimical attitude of the respondent’s wife towards the petitioner and his family members. The respondent’s wife developed various medical conditions and disorders that caused her infertility, thereby making her unable to conceive. The respondent wife used to blame her husband for the diseases she suffered and used to torture him for that reason. Being agitated by this, the petitioner served legal notice to the respondent’s wife, thereby asking her to grant a divorce by mutual consent. In reply to the aforesaid legal notice, the respondent’s wife lodged a complaint against the present petitioner and his family members. The learned lower court allowed the criminal proceedings against the husband, and being aggrieved by this, the present petitioner for quashing of the impugned proceedings knocked on the doors of the Calcutta High Court.

Issues Involved in the Case

• Whether the learned lower court erred in allowing the criminal proceedings or not.
• Whether the present situation of the infertility of the wife is a valid ground for divorce?

Judgement of the Court

The Calcutta High Court held that the infertility of the wife is not a valid ground for divorce. The Court further opined that there are several ways in which the parties can become parents, and the husband has to be sensitive in such matters where the wife is already suffering mentally, as in the present case due to her being unable to conceive. The Court dismissed the revision plea filed by the husband against the quashing of criminal proceedings.

Conclusion: Irretrievable Breakdown of Marriage

Divorce is a serious issue and must be used only as a last resort, however, these days people do not think twice before getting divorced. It splits families and the child of the separating couple has to go through serious trauma growing up with separated parents.  Having said all that, countries having higher divorce rates have higher standards of women empowerment. People get to exercise their right to choose to end the marriage if they are not happy. Divorce by mutual consent is the best way of divorce as the parties do not have to bad mouth each other in the courtroom and both parties can mutually settle on all issues and end their marriage. The legislature has set numerous grounds for the legal termination of marriage, but the decorous way of seeking a divorce that is beneficial for both parties is by way of mutual consent.

References: Irretrievable Breakdown of Marriage

• The Hindu Marriage Act, 1955
• Stey by step procedure to file for a Mutual Divorce
• Divorce: Costs, documents needed and steps involved
• Divorce by Mutual Consent
• Divorce by Mutual Consent in India- Step by Step Procedure

[1] Jayachandra v. Aneel Kaur,. (2005) 2 SCC 22 . judgment available at  https://indiankanoon.org/doc/1178711/

[2] Naveen Kohli v. Neelu Kohli AIR 2006 SC 1675. judgment available at https://indiankanoon.org/doc/1643829/

[3] Sandhya Rani v. Kalyanram Narayanan (1994) Supp. 2SCC 588 judgment available at https://indiankanoon.org/doc/715585/

[4] Sureshta Devi v. Om Prakash 1992 AIR 1904 judgment available at The concept of irretrievable breakdown of marriage emerged as a response to the limitations and shortcomings of fault-based divorce systems.https://ijtr.nic.in/Smt._Sureshta_Devi_vs_Om_Prakash_on_7_February,_1991.PDF

[5] Pradeep Pant & anr v. Govt of NCT Delhi judgment available at https://indiankanoon.org/doc/173931750/?type=print

[6] Sureshta Devi v. Om Prakash 1992 AIR 1904 judgment available at https://ijtr.nic.in/Smt._Sureshta_Devi_vs_Om_Prakash_on_7_February,_1991.PDF

[7]Gandhi Venkata Chitti Abbai v. Unknown (1988) judgment available at  https://indiankanoon.org/doc/481505/ 

[8] Dinesh Kumar Shukla v. Neeta (2005) judgment available at  https://indiankanoon.org/doc/598908/

[9] Amardeep Singh v. Harveen Kaur judgment available at https://indiankanoon.org/doc/79830357/

[10] K. Omprakash v. K. Nalini judgment available at https://indiankanoon.org/doc/1170645/

[11] Rajat Gupta v. Rupali Gupta 2018 SCC. OnLine Del 9005 judgment available at https://indiankanoon.org/doc/193567322/

[12] Naveen Kohli vs. Neelu Kohli1 in 2006 judgment available at

[13]  K. Srinivas Rao vs D.A. Deepa 2013(5) SCC 226  https://indiankanoon.org/doc/14713882/

[14] Shilpa Sailesh vs. Varun Sreenivasan judgment available at https://indiankanoon.org/doc/37623680/

[15] Hitesh Bhatnagar v. Deepa Bhatnagar (2011), AIR2011SC1637 judgment available at https://indiankanoon.org/doc/1430929/

[16] Anil Kumar Jain v. Maya Jain (2009) 10 SCC 415 judgment available at https://indiankanoon.org/doc/447829/

[17] Devendar Singh Narula v. Meenakshi Nangia (2012) 8 SCC 580 judgment available at https://indiankanoon.org/doc/175336334/

[18] Shri Uttam Kumar Bose v. State of West Bengal (2023) judgment available at  https://indiankanoon.org/doc/178609394/