IRRETRIEVABLE BREAKDOWN THEORY OF MARRIAGE

Irretrievable Breakdown Theory Of Marriage

Marriage

Legally speaking the concept refers to the situation when either or both spouses are no longer able to live or willing to live with each other, thereby destroying their marital relationship with no hope of recommencement of their spousal duties. There is no longer an iota of hope that parties will also be reconciled to continue their matrimonial existence, the marriage can be viewed as Irretrievable Breakdown of marriage.

This concept was first introduced in New Zealand. The Divorce and Matrimonial Causes Amendment Act, 1920 was first legislation to bring this concept. It was discretion of court whether to grant divorce or not.

In England, the need for this theory was felt in the case of Masarati v. Masarati, where both the partners had committed adultery. The law commission of England in its report said the objectives of amicable divorce law are:

• to bolster rather than to undermine the stability of marriage

• to enable the empty shell of non- working marriage to be broken down with maximum fairness and minimum bitterness and distress.

On above recommendations, Irretrievable Breakdown of Marriage was made the sole ground for divorce under section 1 of the Divorce Law reforms Act, 1973.

In India, breakdown of marriage is still not recognized as valid ground for divorce in-spite of the recommendation of the Law Commission and various Supreme Court judgments reinforcing the urgency to include breakdown of marriage as a ground for divorce.

In the case of Dastane v. Dastane, the couples were worried in judicial lawsuits for over a decade with the petition of the husband for judicial separation being pushed aside. This case was star point to draw attraction to the point of the concept of irretrievable breakdown as a necessity.

In Varalakshmi v. N.V Hanumanth Rao, the husband having obtained a decree for judicial separation was not allowing the wife to recommence co-habitation. After completion of the specified time, the husband petitioned for a decree of divorce. It was argued that the husband cannot be granted divorce because that will result to his advantage out of his own fault. But the divorce was granted because co-habitation cannot happen without mutual agreement.

Even though irretrievable breakdown of marriage has no longer been mentioned in section 13 of the Hindu Marriage Act, 1955 as a ground for divorce, there have been many judgments which gave choices headquartered on the precept. To recognize the scope of the model, few landmark case laws are mentioned:

In Sneh prabha v. Ravinder kumar, the Supreme Court docket granted divorce after achieving to the conclusion that marriage had irretrievably broken down and attraction against an order confirming decree of restitution and after making so much effort at reconciliation.

Nonetheless beneath each the statutes, irretrievable breakdown of marriage isn't per se a ground of ‘divorce’. It's only one variant of irretrievable breakdown which constitutes a ground, i.e., non-compliance with the decree of restitution or non-resumption after a decree of separation for an interval of one year. At the same time introducing these breakdown grounds, apparently parliament over passed the availability of section 23(1)(a) of Hindu Marriage Act of 1955, which lays down that reliefs will not be granted to a petitioner who's shown to be taking advantage of his or her own flawed or disability.

On bare reading of section 13 of the Hindu Marriage Act, it is clear that no such ground of irretrievable breakdown of marriage is offered by means of the Legislature for granting a decree of divorce. The court docket cannot add any such ground to section 13 of the Act as that might be amending the Act which is the purpose of the legislature.

Jayachandra v. Aneel Kaur –The husband in the case complained in regards to the “obnoxious and humiliating” habits of the spouse and seeks a divorce by mutual consent underneath section 13 of the Hindu Marriage Act, 1955 with the intention to restrict useless complications. Nonetheless, the court went by means of the evidence and offered a decree of judicial separation. Supreme Court docket in the enchantment rather decided that there did exist cruelty and it deduced from the data & instances that the wedding had irretrievably damaged down. The court further mentioned that it is aware of that this idea can be utilized to furnish a decree for marriage but it surely continued in an effort to complete justice and shorten the intellectual anguish of the parties.

It was defined in the case of Ajay Sayajirao v. Rajashree Ajay Desai that after there is not any alleged fault floor proved; remedy cannot be granted on ground of irretrievable breakdown of marriage.

Nevertheless, a differing stance used to be taken within the case of Dinesh Kumar Mandal v. Mina Devi the place it was held that a couple living separately for many years justify the fact that the wedding is broken beyond repair and despite the fact that the alleged floor of adultery was not tested right here, divorce was granted.

One more landmark case when it comes to the notion is of Kanchan Devi v. Promod Kumar in which the parties had been staying separately for over an interval of ten years and every attempt at any reconciliation grew to become futile. In its order, the court invoked its jurisdiction underneath Article 142 of the constitution which has the provision to furnish “any decree or order as is fundamental for doing whole justice in-spite of everything or subject pending before it” the memorandum of settlement obviously defined that this was a case of divorce with the aid of mutual agreement however the observations of the court evidently strengthened the truth that irretrievable breakdown of marriage as a mannequin to claim divorce has seeped into the choices of the courts. The landmark judgments of Savitri Pandey v. Prem Chandra Pandey and Naveen kohli v. Neelu Kohli additionally reiterated the necessity for inclusion of irretrievable breakdown of marriage as a floor for divorce.

CURRENT POSITION

The Marriage Laws (Amendment) Bill, 2010 was passed by the parliament in March, 2012 with the introduction of the Section 13C, 13D and 13E. Section 13C(1) states the utilization of irretrievable breakdown of marriage as a new ground for divorce alongside Section 13C(2) which requires the parties to have been living separately for of 3 years or more before they file the petition.