IRRETRIEVABLE BREAKDOWN OF MARRIAGE

A Research Paper submitted in partial fulfillment of course Economics – I for the requirements of
degree B.A.LL.B ( Hons.) for the academic session 2019-2020.

Submitted by:
Waquar Ahmad

Roll no -1984

Submitted to:
Ms. Pooja Shrivastva

Faculty of Family Law - I

6th September, 2019

CHANAKYA NATIONAL LAW UNIVERSITY

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 ACKNOWLEDGEMENT
The present project on the “IRRETRIEVABLE BREAKDOWN OF MARRIAGE” has been
able to get its final shape with the support and help of people from various quarters. My sincere
thanks go to all the members without whom the study could not have come to its present state. I
am proud to acknowledge gratitude to the individuals during my study and without whom the study
may not be competed. I have taken this opportunity to thank those who genuinely helped me.

With immense pleasure, I express my deepest sense of gratitude to Ms Pooja Shrivastava, Faculty
for Law of Contracts, Chanakya National Law University for helping me in my project. I am also
thankful to the whole Chanakya National Law University family that provided me all the material
I required for the project. Not to forget thanking to my parents without the co-operation of which
completion of this project would not had been possible.

I have made every effort to acknowledge credits, but I apologies in advance for any omission that
may have inadvertently taken place.

Last but not least I would like to thank Almighty whose blessing helped me to complete the project

THANKING YOU

NAME: WAQUAR AHMAD

ROLL NO. : 1984

COURSE: BA.LLB (Hons.)

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 DECLARATION
I hereby declare that the work reported in the BA.LL.B (Hons.) Project Report entitled

“IRRETRIEVABLE BREAKDOWN OF MARRIAGE”

Submitted at Chanakya National Law University is an authentic record of my work carried out
under the supervision of Ms Pooja Shrivastava. I have not submitted this work elsewhere for any
other degree or diploma. I am fully responsible for the contents of my Project Report.

SIGNATURE OF CANDIDATE

NAME OF CANDIDATE: WAQUAR AHMAD

CHANAKYA NATIONAL LAW UNIVERSITY

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 TABLE OF CONTENT

S.No Topic Page

No.
Acknowledgement 2
I. Introduction

1. Aims and Objective

2. Hypothesis

3. Research Methodology 5-7

4. Source of Data

5. Limitation of study

II. History of irretrievable breakdown of marriage 08

III. International Perspective 09-10

IV. Theories of Divorce 11-14

V. National Perspective 15-16

VI Conclusion and Suggestions 17-18

V11 Bibliography 19

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I) INTRODUCTION

Irretrievable Breakdown of marriage theory states “If it is proved to the court that a marriage has
been broken down irretrievably, then the court without asking any cause/ground for divorce can
dissolve the marriage”.

Here “Irretrievable Breakdown” refers to the removal of substance to the marriage while the form
of marriage remains. According to Mortimer Committee’s report “It is a situation where when a
marital relation has failed such that there is no probability that both the spouses can again live
together as husband and wife”.

According to this report, when both the parties present a joint petition in the court for divorce on
this ground, then the court without much looking into this matter can grant divorce. But when only
one party files petition on this ground for termination of marriage, then the court after an enquiry
and on being satisfied that the marriage has been broken down, can grant divorce even if the other
party has a desire to stay.

There are two modes on the basis of which such a divorce can be granted:

a) The legislature has not laid down a criterion for the breakdown of marriage. It is up to the
courts the courts to determine whether the marriage has broken down or not. The courts try
to buttress a marriage before dissolving it. It is observed in USSR, East European countries
etc.

b) The legislature lays down a criterion for the breakdown of marriage. The courts have no
option rather than to dissolve the marriage. It is followed in England, New Zealand etc.

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As far as the situation in India is concerned, a back door entry has been made by this theory. It is
not in a codified form in India.

The Hindu Marriage Act, 1955 provides under Sec 13 provisions that give a way to this theory.
These are under Sec 13 1A:

 When no resumption of habitation has taken place within a period of 1 year or more after
a decree of judicial separation has been passed
 When no restitution of conjugal rights has taken place within a period of 1 year or more
after a decree of restitution of conjugal rights has been passed.

Apart from these, even various judgments have been passed by SC that supports this theory. For
e.g. In Kanchan Devi V Pramod Kumar case, the couple had been living separately since a period
of 10 years. All efforts to reconcile them failed. So the court referred article 142 of the constitution
that stated that the SC can in exercise of its jurisdiction pass a decree as is necessary for doing
complete justice in any cause or matter pending before it. It granted divorce based on this theory.
Even in Naveen Kohli V Neelu Kohli case divorce was granted on the bases of this theory.
Therefore, now the question of concern is the codification and inclusion of this theory in Hindu
Marriage Act.

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1. AIMS AND OBJECTIVES

1. To Study the Impact of Irretrievable Breakdown of Marriage.

2. To know the grounds of divorces concerning Irretrievable breakdown of Marriage.

3. To know landmark judgments delivered in cases involving Irretrievable Breakdown of

Marriage.

2. HYPOTHESIS
1. Irretrievable breakdown should also be a ground for judicial separation.

2. Fault and no fault grounds should be combined.

3. RESEARCH METHODOLOGY

The Researcher will be relying on Doctrinal method of research to complete this project.

4, SOURCES OF DATA

The researcher will be relying on both primary and secondary sources to complete the project.

1. Primary Sources: Acts & Articles

2. Secondary Sources: Books, newspapers, journals, cases and websites.

5. LIMITATION OF THE STUDY

The Researcher as a student has completed the project, he has access to a limited area and having
a limited time.

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II. HISTORY OF IRRETRIEVABLE BREAKDOWN OF MARRIAGE
Irretrievable breakdown of Marriage Theory has a history that shows its onset as a theory. As per
the Law Commission report, New Zealand was the first country in the world to grant divorce on
the basis of separation agreement of 3 years or more in 1920. In 1921, first divorce was granted in
New Zealand on the grounds of irretrievable breakdown. This resulted in the making of
irretrievable breakdown as a theory. In 1944 USSR adopted it. After this it was introduced in
England in Masariti v Masiriti case where both the husband and wife accused each other of guilty.
In Australia it was introduced under the marital clause act 1956.1 After this it was introduced in
many other countries including the ones that were deeply entrenched into fault theory. These
countries used to follow two methods:
I. They used to keep on increasing the grounds for divorce for e.g. Incompatibility of temperament
was also added as a ground for divorce.
II. They gave wide interpretation to these grounds for e.g. In Gollins V Gollins case divorce was
granted on grounds of cruelty when a husband was financially dependent on his wife and did not
took up a job.2
So this theory was deficient and not all inclusive and therefore they adopted this theory. In India
fault theory and mutual consent theory are recognized under Sec. 13 but this theory is not supported
anywhere. The report of 71st law commission of India states that the objectives of a good divorce
law are:
• To buttress a marriage rather than undermining its stability
• If a marriage has been broken down irretrievably then it is better to destroy an empty shell with
maximum fairness and minimum pain.
On the basis of this report a Marriage Law Amendment bill, 1981 had been introduced but it was
allowed to lapse as it had to face opposition from some women’s organizations. After this a
Marriage Law Amendment Bill 2013 was introduced but it could not be passed by UPA govt.

1
https://blog.ipleaders.in
2
Dr. Paras Diwan, Modern Hindu Law, Allahabad Law Agency, Faridabad

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III. INTERNATIONAL PERSPECTIVE

The irretrievable breakdown of marriage theory is recognized by the laws of many countries. In or
about nineteen fifties, a trend towards this theory became discernible in those countries also which
were deeply entrenched in the fault theory.3

The Swedish Marriage Law of 1920 provides a very good illustration of this trend. It was laid
down that both the spouses could present a joint petition for separation decree on the ground of
“profound and lasting disruption”. Such an application could be presented by one of the spouses
to the marriage also. In the case of joint application, the court was required to pass a decree without
looking into the matter.

In the modern law, the irretrievable breakdown of marriage theory has found its way in two modes:

(i) The law lays down that if a marriage has broken down beyond any possibility of repair then it
should be dissolved. The determination of the question whether in fact a marriage has broken down
or not is left to the courts. In other words, the legislature does not lay down any criterion on which
a marriage may be deemed to have broken down. It leaves it to the court to find out whether a
marriage has in fact broken down of not in each individual case. Most of the East European States
also adopt this form of breakdown theory.

(ii) In its second mode, the legislature lays down the criterion of a marriage and if that is
established, the courts have no option but to dissolve the marriage. For instance, the petitioner
must show that before the presentation of the petition, he has been living separate from the
respondent for a specific period. This goes to establish that marriage has broken down beyond all

3
https//Irwin.internationalirretrievable.com

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possibilities of repair. The law of New Zealand and about eighteen States of the U.S.A also contain
a similar ground.

Another version of this form of breakdown theory is the one which requires that before a petition
is presented, the parties must have lived apart from each other for some specific period. The Royal
Commission on Marriage and Divorce recommended that either spouse may be able to obtain
divorce on the ground that they had lived separate from each other for a period of seven years, but
if one of the parties objected to divorce, divorce could not be granted. In its yet another version,
two periods of separation have been suggested, one longer and the other shorter. In the latter case,
divorce can be given only if the other party consents to it. In the former, divorce can be obtained
even if the other party withholds its consent. Following the recommendations of the Law
Commission of England, the Divorce Reform Act, 1969 laid down that if parties to the marriage
have lived apart for a continuous period of at least two years immediately preceding the
presentation of the petition and the respondent consented to the decree being granted, decree
dissolving the marriage could be passed. It also recognized separation for a period of five years or
more as a ground for divorce, irrespective of the fact whether the other party consented or did not
consent to divorce.4

This is also the form in which the breakdown theory is recognized in Australia and Canada though
under the law of the latter, the period of separation is three years. In that event, the consent or
dissent of the other party is immaterial. These grounds have been hedged with sufficient safeguards
for the parties to the marriage and for the children of the parties

4
https//netresearchdivorce.uk.co

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IV. THEORIES OF DIVORCE

Divorce has, until recently, been based exclusively on the fault of one party. However with
changing societal mores, new theories of divorce have emerged. Marriage is no longer seen as
irrevocable and the dominant view is that if spouses do not wish to live with each other and if
living with each other becomes torture, they should be legally allowed to part ways. This view has
brought in other theories of divorce that do not require the fault of one party in order to obtain
divorce. The theories of divorce can broadly be categorized into the fault theory and the no fault
theory.5

A. FAULT THEORY

This is the traditional theory that requires an innocent party to approach the court to file for a
divorce due to a fault on the part of the other party. Here, it is possible to distinguish between two
kinds of faults: which are directed towards the petitioner and which are not directed towards the
petitioner. The latter may be referred to as a separate theory- “theory of frustration of marital
relationship”.
Both the kinds of faults have been incorporated in the Act as grounds for obtaining divorce. The
following are examples of grounds based on fault that is directed against the petitioner under the
Act: adultery, cruelty, desertion, bigamy, rape, sodomy or bestiality and failure to pay
maintenance.
The grounds for divorce on the basis of fault not directed towards the other party are: conversion
to another religion, insanity, virulent or incurable form of leprosy, venereal disease in a
communicable form, renunciation of the world and being missing for seven years or more.

5
Dharmendra Kumar v. Usha Kumar AIR 1977 SC2213; T. Srinivasan v. T. Varalakshmi I (1991) DMC 20; Hirachand
v. Sunanda AIR 2001 SC 1285

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Thus the fault can either be inherent in the person or be a result of his/her actions; nonetheless
there must be a fault in the person.
The Act provides for certain defences to a petition for divorce. No person in order to get relief can
take advantage of his own wrong or disability, can connive, condone or collude with the respondent
and unnecessarily delay the filing of the petition. Any of these circumstances would result in denial
of the grant of divorce even if the fault is proved.
Thus, the theory requires an innocent party in need of relief and a guilty party against whom the
relief is granted. If the guilty party is able to show that the party claiming to be innocent is also
guilty, no relief would be granted to the petitioner.

B. NO FAULT THEORY

No-fault theory does not require any one of the parties to be guilty; no fault needs be proved. It is
also referred to as the “breakdown of marriage”. A divorce based on the no fault theory can be
through mutual consent or without the consent of the opposite party due to an irretrievable
breakdown of marriage. Only the former has been incorporated in the Act by virtue of Section 13
B. The Section allows for divorce to be granted if both parties agree for it provided they have been
living separately for one year or more.6
Section 13 (1A) which was inserted in 1964 in the Act has been said to be based on the theory of
breakdown of marriage. It is actually a hybrid provision- based on a combination of fault theory
and no fault theory. It states that divorce can be sought by either of the parties subsequent to the
passing of a decree for restitution of conjugal rights or for judicial separation, provided there has
been no cohabitation for one year or more after the decree. This means that even a party at fault
can file a petition for divorce. However, the provision is not based on the no fault theory since it
requires that a decree of restitution of conjugal rights or judicial separation must have been passed.

6
Marital Fault V. Irremediable Breakdown: The New York Problem And The California Solution

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These decrees are passed only when the respondent is at fault. Hence to be able to file a petition
under this Section, fault is a pre requisite. Also, the legal position is as follows: Section 23 (1) (a)
of the Act is applicable to Section 13 (1A) provided the wrong is a fresh wrong and not merely
non-compliance of the decree of restitution of conjugal rights or judicial separation.
So far we do not have a provision which allows for a party irrespective of fault to file a petition
for divorce on the ground that there has been an irretrievable breakdown of marriage. Bills have
been introduced but have not been concretized as Acts.

C. FAULT EVEN WITHIN NO FAULT THEORY

As seen above, the difference between a ground based on fault and a no fault ground lies in the
fact that in a no fault ground even a party at fault would be able to file a petition for divorce and
the general defences to divorce would not be applicable.
Under the no fault theory of divorce, fault is not a requirement at all. However, fault in one way
or the other does creep into no fault grounds also. Let us consider the proposed provisions for no
fault divorce in Section 13 C of the Marriage Laws (Amendment) Bill, 2013 (hereinafter referred
to as the 2013 Bill). In order to grant a divorce on the ground of irretrievable breakdown, the court
must be satisfied that the marriage has broken irretrievably. A three year separation is a prerequisite
to grant divorce but is not the deciding criterion. The court must consider other facts and
circumstances before deciding whether there has been an irretrievable breakdown of the marriage
or not. While deciding this issue, it would invariably consider the reasons for irretrievable
breakdown which would be generally caused because of the fault of one of the parties.
Apart from the court looking into why irretrievable breakdown of marriage was caused, the
question of fault would also arise for two more purposes. Firstly, while exercising the discretion
given to the court not to grant the decree for divorce on account of grave financial hardship being
caused to the wife (respondent), the court is supposed to look into the conduct of the parties and
interest of the parties involved. The conduct of the parties might entail faults on the part of both

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the parties. Secondly, the court would have to decide on questions relating to fault for deciding
compensation to be made by the husband (petitioner) to the wife and children, if any. The
compensation is for settling the claims of the wife. What claims are to be settled would be
dependent on the facts and circumstances of the case and any fault on the part of the husband
would definitely be one of the many things to be considered.
Under the no fault theory, fault per se does not furnish the basis for granting a divorce but fault
does play a role in the determination of issues in the divorce proceeding. When seen in this light,
the time old distinction between fault and no fault theories of divorce seems to blur. The Law
Commission favoured introducing the ground of irretrievable divorce and stated that it would
prevent “public washing of dirty linen which takes place in long drawn out cruelty cases or in cases
based on divorce” This may be true in some cases but not in most. The ground of irretrievable
breakdown of marriage would be used when both parties do not consent and in such cases, it is
likely that the respondent would be keen to contest the case. It is human tendency to want to fix
responsibility for a particular happening on somebody; even if under the ground for irretrievable
breakdown no fault needs to be proved, the parties would want to fix the responsibility for the
breakdown by attributing fault to one another.

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V. NATIONAL PERSPECTIVE

The marriage law (amendment) bill 2013 was the latest effort by the government to bring forward
the concept of irretrievable breakdown of marriage. It was only passed in Rajya sabha and therefore
was not successful.
The highlights of the bill are as follows:

1. In this bill a petition for the dissolution of marriage by a decree of divorce by either party on the
ground of irretrievable breakdown of marriage can be made.

2. The court hearing a petition shall not hold the marriage to have broken down unless it is satisfied
that the parties to the marriage have lived apart for a continuous period of not less than three years.
The court may reduce this period to a lesser duration if it is satisfied that the parties to the marriage
are not in a position to reconcile the differences.

3. Where the wife is the respondent to a petition for the dissolution of marriage by a decree of
divorce she may oppose the grant on the ground that the dissolution of the marriage will result in
grave financial hardship to her and that it would in all circumstances be wrong to dissolve the
marriage.

4. The court shall not pass the decree unless it is satisfied that adequate provision for the
maintenance of children born out of marriage has been made.

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 LAW COMMISSION REPORT

In the said Report, it is mentioned that restricting the ground of divorce to a particular offence or
matrimonial disability, causes injustice in those cases where the situation is such that although
none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not
want to divulge it, yet such a situation has arisen in which the marriage cannot survive. The
marriage has all the external appearances of marriage, but none in reality. As is often put pithily,
the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated,
there is hardly any utility in maintaining the marriage as a facade, when the emotional and other
bonds which are of the essence of marriage have disappeared.
It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in
reality, there is no reason for denying divorce, then the parties alone can decide whether their
mutual relationship provides the fulfilment which they seek. Divorce should be seen as a solution
and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of
the past, but is concerned with bringing the parties and the children to terms with the new situation
and developments by working out the most satisfactory basis upon which they may regulate their
relationship in the changed circumstances.
The amendment may also provide that the court before granting a decree for divorce on the ground
that the marriage has irretrievably broken down should also examine whether adequate financial
arrangements have been made for the parties and children.
The report explicitly mentions the difference between mutual consent and irretrievable breakdown.
Mutual consent requires the consent of both the parties and if one or the other does not cooperate,
the said ground is not available. ‘Irretrievable breakdown of marriage’, on the other hand, is a
ground which the Court can examine and if the Court, on the facts of the case, comes to the
conclusion that the marriage cannot be repaired/saved, divorce can be granted. The grant of divorce
is not dependent on the volition of the parties but on the Court coming to the conclusion, on the
facts pleaded, that the marriage has irretrievably broken down.

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VI. CONCLUSION AND SUGGESTION

In a nutshell, it can be concluded from the above discussion that sick marital relations indeed pose
a problem for the concerned spouses. Therefore, there is no justification tying the parties to the
bond of marriage. Owing to the present understanding of marriage which is part sacramental and
part contractual, it is to be understood that a marriage which is not working and lack any substance
irretrievably is better off broken.

Justice Krishna Iyer had also opined that:

"Daily trivial differences get dissolved in the course of time and may be treated as the teething
trouble of early matrimonial adjustment while the stream of life lived in married mutuality may
wash away small pebbles, what is to happen if intransigent incompatibility of minds breaks up the
flow of stream? In such a situation we have the breakdown of marriage itself and the only course
open for law is to recognise what is a fact and accord a divorce."

Presently Sections 13 (1) and 13 (2) deal with grounds based on fault and the 2013 Bill seeks to
insert a provision providing for the ground of irretrievable breakdown of marriage. The Sections
thus segregate grounds based on fault theory and no fault theory. This scheme is not sound because
as discussed in Part II of this paper, fault and no fault theories are not entirely mutually exclusive.
A better way to insert the ground of irretrievable breakdown of marriage would be to allow divorce
if the marriage has irretrievably broken down. The provision providing this should enumerate the
circumstances which would amount to irretrievable breakdown of marriage. These circumstances
would be fault based grounds as well as the no fault ground that requires a minimum separation of
three years. For the purpose of giving a solution to problems where both parties are at fault and the
marriage has completely broken down but the parties have not been staying separately, two
alternatives are possible.

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First, a sub-section could be added that empowers the court to grant divorce even if none of the
enumerated circumstances are fulfilled but when the facts and circumstances warrant such an
action. In such a case, the court should be obligated to provide reasons as to why it thought that
the marriage had irrevocably broken down. The second alternative could be to abolish the defences
to divorce provided in Section 23 (1). The second alternative is preferred by this author as the first
leaves to much discretion in the hands of the courts.
England has only one ground for divorce, i.e. irretrievable breakdown of marriage. The court can
grant a divorce on the ground only if any of the conditions given in the provision are fulfilled.
These facts are based on fault theory as well as no fault theory of divorce. This paper suggests a
similar provision but with an addition that would ensure that the court is empowered to grant
divorce in appropriate cases even if the case does not fall within any of the facts mentioned in the
provision.

The Bill introduces the ground of irretrievable breakdown of marriage only for divorce and not for
judicial separation. This is an anomaly since under the Act judicial separation can be prayed for
on any of the grounds enumerated in Sections 13 (1) and 13 (2) of the Act. Ideally, it should also
be possible to ask for judicial separation on the ground of irretrievable breakdown of marriage.
This would increase chances for reconciliation as the parties would get the opportunity to suspend
their marriage without dissolving it. In case, they are unable to resolve their problems, they would
have an option to approach the court under Section 13 (1A) or Section 13 C.

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 BIBLIOGRAPHY

PRIMARY SOURCES:
1) Family Law – Paras Diwan
2) Family Law – Poonam Pradhan Saxena
3) Mulla Hindu Law by Sir Dinshaw Fardunji Mulla

SECONDARY SOURCES:

1) http://www.legalserviceindia.com/articles/break_mar.htm
2) https://indianlegalsolution.com/irretrievable-breakdown-of-marriage-article-by-a-law-
student/
3) https://indiankanoon.org/search/?formInput=irretrievable%20breakdown%20of%20marri
age

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