"When two people decide to get a divorce, it isn't a sign that they 'don't understand' one another, but a sign that they have, at least, begun to."-Helen Rowland

Divorce, once stigmatized, has experienced a notable shift in societal attitudes, where it has become increasingly normalized and accepted in modern times. The general societal view on divorce has shifted to accept and understand the feelings of the people involved. One of the main reasons for the acceptance of divorce is the shift in gender roles over time. Now, women have become more financially independent and have greater access to education and career opportunities. As a result, they are less likely to stay in unhappy marriages simply because they feel economically dependent on their spouse. This newfound independence has also given women the confidence to leave marriages that are not fulfilling or worse, are abusive. Another factor contributing to the acceptance of divorce is the emphasis on personal happiness, mental health and autonomy. Society now values individual happiness and self-fulfillment more than ever before. Couples are less willing to stay in marriages that do not bring them happiness, even if it means going through the process of a divorce. Although, no matter how easy the process gets, it is still difficult for the couples and their respective families of the divorce to go through the challenging process of evidence. Acknowledging this challenging process, legal systems across the world have made divorce laws more streamlined, making the process less costly and time-consuming. Laws also have begun to promote equitable distribution of assets, which has helped to reduce the financial burden of a divorce.

In view of the above, the concept of irretrievable breakdown of marriage has time and again become a talking point amongst various Courts as well as the Supreme Court.

Irretrievable Breakdown of Marriage

Irretrievable Breakdown of Marriage is when, despite the parties' best efforts, their marriage cannot be restored to as it was before. It is often used as a no-fault ground for divorce, meaning that neither party needs to prove that the other is at fault for the breakdown of the marriage. Although till now the legislature has not incorporated it as a valid ground to grant divorce, the courts have felt the need to recognize it and has pronounced various judgments based on the concept.

One of the first landmark case of Naveen Kohli vs. Neelu Kohli 1 in 2006 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 2.

Another judgment subsequent to the above followed K. Srinivas Rao vs D.A. Deepa 3 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 a 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 petition 4. It all efforts fail, Courts proceeded with divorce

In a recent Supreme Court Judgment of Shilpa Sailesh vs. Varun Sreenivasan 5, 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.

Factors to be Considered for Divorce under Irretrievable Breakdown of Marriage-

The Hon'ble Court laid down the factors to determine irretrievable breakdown of marriage-

1. The period for which the parties had cohabited after marriage.
2. When the parties had last cohabited.
3. The nature of allegations made by the parties against each other and their family members.
4. The orders passed in the previous legal proceedings and their impact on the personal relationship.
5. Number of attempts made to settle the disputes by intervention of the court or mediation.
6. The period of separation should be sufficiently long. (6 years and more)

Along with these factors, the economic and social status of the parties, including their educational qualifications, existence of children and alimony are also to be considered before granting a decree of divorce.

The Court was also of the opinion that, when there is complete separation over a long period and the parties have moved apart and have mutually agreed to separate, it would not serve any purpose to prolong the litigation and the divorce should be granted without further delay as the parties have had time to ponder, reflect and take a conscious decision. 6

Relying on principles of equity, the court held that if one party opposes to the grant of divorce, the court must ensure that the circumstances and the background of the opposite party are balanced, before granting a divorce. 7

Article 142 to the Rescue

The Supreme Court's power under Article 142(1) to grant of divorce on the ground of irretrievable breakdown of marriage is not a matter of right, but a discretion which is to be exercised with great care and caution to ensure complete justice in a case.

The power is not limited to granting divorce under Fault Theory 8, but also extends to granting divorces under No-Fault Theory 9 and the Court must be satisfied that the facts established by the parties clearly show that the marriage has completely failed and there is no possibility that the parties will cohabit together.

The power further allows exemption on the cooling period of 6-18 months that has to be observed by the parties to rethink and introspect their decision before getting a divorce. The exemption can only be granted if the parties are able to convince the Hon'ble Apex Court that there is no possibility of reconciliation, and it is meaningless to prolong the agony. The Apex Court further has the power to quash and set aside other proceedings that run side by side with the matrimonial dispute. 10

The court clearly stated that the parties have not been given a right to file a writ petition under Article 32 to directly seek divorce. 11

Recent Observation

A Family Court Judge of the Patiala House District Courts in a recent judgment, bearing HMA No. 181/2023 granted divorce on no-fault basis to the parties who had been fighting before Court for over seven years. The Hon'ble Court made the observation that since both parties had levelled allegations against the other while pressing for a divorce, it would be cruel to not grant divorce to the parties, and the same must be granted without going into which party was at fault for the breakdown of marital relations.

The Hon'ble Court even highlighted the current increase in matrimonial disputes where the parties who decide to walk out of the marriage for any reason, have no option but to approach the court and impose baseless allegations on their respective spouses in order to get the divorce. In that case, the court observed that refusing to dissolve such a marriage just because on party has not been able to prove the fault of the other party would amount to forcing the parties to suffer further.

The Hon'ble Court also emphasized on the importance of executing prenuptial agreements in such cases that allow the respective parties to report breach of the agreement to an appointed authority if and when it occurs. And in case the parties apply for a divorce, only the reported breaches are considered by the courts while adjudicating on the matter.

Recognition of Iretrievable Breakdown of Marriage

The irretrievable breakdown of marriage should be recognised by the Parliament of India as a valid basis for divorce, as, forcefully staying married to someone in such a situation can be dangerous. Despite multiple recommendations made by the Law Commission of India in 1978 and 2009, India has not given proper recognition to this ground of divorce. The recent judgment is a significant one as the Court has recognized the need to shift from fault theory divorce to no-fault theory divorce.

Footnotes

1 Naveen Kohli vs. Neelu Kohli AIR 2006 SC 1675

2 Section 13(1) of the Hindu Marriage Act, 1955

3 K. Srinivas Rao vs D.A. Deepa (2013) 5 SCC 226

4 Section 13B of the Hindu Marriage Act, 1955

5 Shilpa Sailesh vs. Varun Sreenivasan (2023) 05 SC CK 0001

6 Amit Kumar v. Suman Beniwal (2021) SCC Online SC 1270

7 Munish Kakkar v. Nidhi Kakkar 2020 14 SCC 657 and Sivasankaran v. Santhimeenal 2021 SCC OnLine SC 702.

8 Section 13(1) of the Hindu Marriage Act

9 Section 13-B of Hindu Marriage Act, 1955

10 Jitendra Raghuvanshi & Ors. v. Babita Raghuvanshi & Anr. (2019) 5 SCC 688

11 Poonam v. Sumit Tanwar (2010) 4 SCC 460

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