Irretrievable Breakdown of Marriage.

“While there is no rose which has no thorns but if what you hold is all thorn and no rose better throw it away.”

                                                              J. Krishna Iyer in Yousuf v. Sowramma 1971 SC

 

          Hindu Marriage Act 1955 does not provide any ground of divorce based upon irretrievable breakdown of marriage. However Judicial institutions in India time and again has demanded such right to be incorporated in the statute. The basic object being to ease out the difficulties of spouses where marriage has been wrecked beyond the hope of salvage. Irretrievable breakdown means ‘such failure or such circumstances adverse to the matrimonial relationship that no reasonable probability remains for the spouses again living together as husband and wife’. 71st Report of Law Commission of India under the chairmanship of J. H.R. Khanna in 1978 recommended the Government to make it as a ground of divorce however as evident no effort was done to realize it. Similar recommendation was also made in the 217th report of Law Commission of India in 2009. Here it is remarkable to note that New Zealand via The (New Zealand) Divorce and Matrimonial Causes Amendment Act 1920 was the first country to introduce such concept whereby separation of three years between spouses allowed the other spouse to move Court of law for divorce.

 

Interpretation by Hon’ble Constitutional Courts in India:

 

           It was first in Naveen Kohli v. Neelu Kohli 2006 SC, Hon’ble Apex Court focussed to understand pragmatic realities of life and recommended the Union of India to incorporate irretrievable breakdown as a ground of divorce. Later in Anil Kumar Jain v. Maya Jain 2009 SC, top Court clarified that divorce on ground of irretrievable breakdown of marriage can only be granted by Supreme Court under Article 142 of Constitution of India and High Court does not have the same power. In the same year Supreme Court further held in Vishnu Dutt Sharma v. Manju Sharma 2009 SC, that Court itself cannot add ‘ irretrievable breakdown’ as ground of divorce under Section 13 of Hindu Marriage Act 1955 as that wound amount to amending the Act, which is a function of legislature.

 

Concept of Blending:

 

          In the case of Sandhya Kumari v. Manish Kumar 2016 DHC, Delhi High Court took a bold view and held the concept of cruelty has been blended by the Courts with the irretrievable breakdown of marriage. Delhi High Court has directly or indirectly read the breakdown of marriage concept with ‘Cruelty’ as ground of divorce under Section 13 sub clause (a). This bold view however can be seen from two perspectives. First, it may be seen as negation of doctrine of stare decisis as Apex Court has held in the case of Vishnu Dutt Sharma that Courts cannnot enter in the domain of legislature and Second, as dynamic judicial activism aiming at easing out the difficulties of parties due to absence of law. Decision of Delhi High Court can be both criticized as well as praised for the above.

                                

 Harihar Gupta

  LL.M.