Irretrievable Breakdown of Marriage

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06-Sep-2023

Why in News?

The Delhi High Court has commented regarding the Hindu Marriage Act of 1955, highlighting that it does not acknowledge the concept of incompatibility as a legitimate reason for divorce in the case of M v. PK.

Background

The present case pertains to the fact that the parties to the suit got married in 2006 and a child was born out of wedlock in 2007.
The wife left the matrimonial home in 2008 and it was contended by the husband that she left the house after quarrelling and also that she was aggressive, quarrelsome and violent in nature towards him and his family members.
The wife's argument was that she endured harassment due to dowry demands, suffered severe physical abuse, and was forcibly thrown out of the marital residence.
The family court allowed the husband’s petition seeking divorce on the ground of “cruelty” under Section 13(1) (ia) of the Hindu Marriage Act, 1955 (HMA).
The wife therefore appealed to the Delhi HC.

Court’s Observations

The HC, while dismissing the petition of the wife observed that the couple had been residing separately since December 2008, and the wife had withdrawn a divorce petition in 2011 due to an agreement between them, which neither of them had honored.
Further bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna while observing that no incident of cruelty towards the wife by the husband was proved and that prolonged differences made the husband’s life bereft of peace and conjugal relationship, stated that “We conclude that in the present case the parties are living separately for 15 years now; there is no chance of reconciliation between the parties and such long separation peppered which false allegations, police reports and criminal trial has become a source of mental cruelty and any insistence either to continue this relationship or modifying the Family Court’s order would only be inflicting further cruelty upon both the parties.”
The HC also observed that “Irretrievable Breakdown of Marriage” has not been introduced as a ground for divorce, Courts hands are tied, and they cannot grant divorce decree unless the fault of the other spouse is shown.

Theories for Under the Hindu Law for Dissolution of Marriage

Fault Theory

Under the Fault theory alternatively known as the offence theory or the guilt theory, marriage can be dissolved only when either party to the marriage has committed a matrimonial offence.
The HMA allows divorce on the fault theory, and the same is enshrined under Sections 13(1), 13(1-A) and 13(2). Section 13(2) of HMA allows the wife alone to seek divorce on additional grounds. The given sections are explained under the part of Legal Provisions later in this article for better clarity.

Mutual Consent Theory

The underlying rationale behind this theory is that when two people have the freedom to marry by their free will, they should also be allowed to move out of the relationship of their own free will.
This theory is however criticized on the ground that use of this theory may lead to immorality as parties may tend to dissolve their marriage even if there were slight incompatibility of temperament which would be in contradiction to the institution of Hindu Marriage which is considered a sacrament.
Section 13B of HMA deals with the concept of Divorce by Mutual Consent.

Irretrievable Breakdown Theory

The irretrievable breakdown of marriage is defined as “such failure in the matrimonial relationships or such circumstances adverse to that relationship that no reasonable probability remains for the spouses to live together as husband & wife.”
There is no legislative provision relating to this theory of divorce.
Such a marriage should be dissolved with maximum fairness & as soon as possible to pave for a better future for both the spouses.
The Supreme Court has time and again evolved the grounds on which divorce can be granted, some of which are as following for dissolving the marriage that has broken down irretrievably:
- The time for which parties stayed together.
- The time, the parties last cohabited.
- Allegations made by parties against each other.
- Order, if any, passed in a legal proceeding between the parties.
- Attempts made to settle the dispute by the family.
- The separation period should be more than 6 years.

Case Law

Naveen Kohli v. Neelu Kohli (2006): A landmark case on divorce on the ground of cruelty, the SC also iterated that when a marriage has broken down irretrievably and there is no possibility of reconciliation, it can be a valid ground for divorce. The court recognized that forcing the parties to live together would only lead to greater misery.
Kanchan Devi v. Promod Kumar Mittal (2010): In the present case, the Delhi High Court reiterated the principle that if a marriage has broken down irretrievably and there is no chance of the spouses coming together, it is a valid ground for divorce.
Rajib Kumar Roy v. Sushmita Saha (2023): In this recent pronouncement SC held that keeping the parties together despite irretrievable breakdown of marriage amounts to cruelty on both sides.

Legal Provisions

Divorce

The concept of Divorce has been introduced by The Hindu Marriage Act, 1955 (HMA). Prior to the act, Hindu Marriage was considered an indissoluble union.
S 13, S13(1-A), S.13 (2) of the Hindu Marriage Act 1955 provide for the dissolution of marriage.
S. 19 of The Hindu Marriage Act 1955 deals with Jurisdiction with respect to presentation of petition.

Hindu Marriage Act, 1955 – Section 13 - Divorce — (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation.—In this clause,— (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub—normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or

(v) has been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;

Explanation.— In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.

(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground —

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground —

(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or

(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 or under the corresponding section 488 of the Code of Criminal Procedure, 1898, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; (iv) that her marriage whether consummated or not was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation —This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws Amendment Act, 1976.

Section 13B - Divorce by mutual consent.—(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.