What is Irretrievable Breakdown of Marriage?
Irretrievable Breakdown of Marriage is ground available for husband and wife upon which a divorce can be granted by the Hon’ble Supreme Court. This ground is not incorporated in Section 13, HMA, therefor the powers vests with the Supreme Court.
When Irretrievable Breakdown of Marriage can be taken as ground for divorce?
When either or both spouses are no longer able or willing to live with one other, their husband and wife connection is destroyed, and there is no possibility of resuming spousal obligations, the parties can seek divorce on the ground of Irretrievable Breakdown of Marriage.
Where can the Irretrievable Breakdown of Marriage be sought?
The Hon’ble Supreme Court can grant divorce on the ground of Irretrievable Breakdown of Marriage under Article 142, the Constitution of India. It is a ground of divorce which cannot be granted by Family Court or the High Court.
Few factors considered by the Supreme Court for Irretrievable of Marriage:
- Extremely long period of separation of husband and wife;
- One of the partner’s sexual relations outside marriage and the other partner finds it impossible to continue as husband and wife;
- Either spouse declared as a ‘habitual criminal’, or sentenced to prison for 10-15 years;
- Forced abandonment of the spouse;
- Either spouse is physically abused on a regular basis;
- Alcoholism or drug abuse of a spouse;
- The partners have no feelings left for each other due to marriage at a young age or any other reason but the matrimonial relationship is not at all existing.
A) In Naveen Kohil v. Neelu Kohil (AIR 2006 SC 1675), the Hon’ble Supreme Court opined that the parties have been living separately for more than ten years, and the respondent has brought numerous civil and criminal proceedings against the appellant, as well as some proceedings brought by the appellant against the respondent. The matrimonial bond between the parties is beyond repair, and the public interest and the interests of all parties involved lie in recognising the fact and declaring de jure what is already de facto. Keeping the deception alive encourages immorality and may be more harmful to the public interest than dissolving the marriage tie. The Hon’ble Supreme Court asked the parliament to consider incorporating Irretrievable Breakdown of Marriage as a ground of Divorce.
B) In Rishikesh Sharma v. Saroj Sharma (2007) 2 SCC 263 the Hon’ble Supreme observed that the appellant and respondent got married in 1972, and the wife began living separately in 1981, and the marriage has irretrievably broken down, with no chance of the parties living together again. The court went on to say that both parties have been living apart and working independently for 49 years. Apart from that, the sole child born out of wedlock in 1975 has already been married. There was a history of litigation with the respondent-wife filing criminal complaints against the appellant that the courts ruled could not be proved. Because the parties will not be able to live together, there was no use in forcing them to do so. As a result, the wisest course of action was to dissolve the marriage by issuing a divorce judgement, allowing the parties who had been litigating since 1981 and had lost a significant portion of their lives to live quietly in the remaining portion of their lives.
C) Samar Ghosh v. Jaya Ghosh(2007) 4 SCR 428 the Hon’ble Supreme concluded that the marriage of the parties has irretrievable broken down. They have been living apart for over sixteen and a half years, the unavoidable inference is that the marriage connection has been irreparably strained as a result of the respondent’s mental cruelty. The appellant husband and respondent wife were both IAS officers, and the respondent had a daughter from her previous marriage. They got married in 1994, but the respondent made the unilateral choice not to have a child for two years, and the appellant was advised to keep as far away from her as possible. They began living apart in 1990 and have had no contact for the past sixteen and a half years. Even when the appellant was very unwell and bye-pass surgery had to be restored, neither the respondent nor any member of her family cared to call and inquire about the appellant’s health.
D) Satish Sitole v. Smt. Ganga (AIR 2008 SC 3093) the Hon’ble Supreme opined that any further attempt at reconciliation will be worthless, and that it would be in both parties’ best interests to sever the matrimonial connections as the marriage has irretrievably broken down. Because the marriage between the parties is dead for all practical purposes and there is no chance of it being resurrected, continuing it would be cruel, and as a result, the marriage between the appellant and the respondent was ordered to be dissolved in accordance with Article 142 of the Constitution.
The 2 latest judgments of the Hon’ble Supreme Court in Sivasankaran vs Santhimeenal, Civil Appeal nos. 4984-4985 of 2021 & Subhransu Sarkar vs Indrani Sarkar (Nee Das), Civil Appeal no. 5696 of 2021, correctly applies the principle of irretrievable breakdown of Marriage in these cases.
Should Irretrievable Breakdown of Marriage be identified as a ground of divorce by legislature?
It is ultimately for the Legislature to decide whether or not to add irretrievable breakdown of marriage as a ground for divorce to be invoked by trial court, but most of the Western countries have incorporated this ground in their divorce laws. Few challenges that come in the way of legislature while identifying irretrievable breakdown of marriage as a ground for divorce are given below:
- Marriage is considered as a sacrament in Hindu Law;
- Disruption in the society;
- Literacy status of men & women in society;
- Social stigma attached to the Divorce, especially for women;
- Future and custody disputes of Children;
- This ground can aid the well settled husbands to end a marriage at their will, leaving behind wives abandoned;
- A wrongdoer can take advantage of this ground;
- Misuse of this provision;
- Objectivity to evaluate irreversible breakdown of marriage.
The divorce cannot be understood as a remedy for rights or wrongs in a matrimonial relationship, but rather it must be perceived as a viable option for resolving matrimonial disputes and to move on in life. A progressive society must give an autonomy to married couples to select applicable ground of divorce in a matrimonial relationship. The emotional bonds constitute a basis of marriage and if such bonds are broken, there is no point of preserving the marriage. In substance and reality, if a marriage has ceased to exist, there is no reason to continue such relationship. Individually, both parties to the marriage should legislatively be given autonomy to decide whether a marriage has broken irretrievably or not.