Dilpreet
Irretrievable Breakdown of Marriage
Dilpreet Singh 30 Jan 2020

Irretrievable Breakdown of Marriage

Introduction

Marriages are made in heaven as is often said and are solemnized on Earth. The very basis of a societal structure is marriage. It is the base of a family and a society in effect without which there can be no civilization.

Under Hindu law, marriage is considered a sacrament which is eternal and indissoluble. Parliament codified the legislation relating to marriages as the Hindu Marriage Act, 1955. In Hindu Law Monogamy is strictly imposed. Before the Hindu Marriage Act was passed, divorce was not a recognised means of putting an end to a marriage, the only exception being where it was accepted by law, which meant that the laws of dissolution of marriage and monogamy were, to the contrary, subject to a legitimate custom.

Divorce Law in India

Modern society has become quite complex coupled with shifts in socio-economic conditions seconded by the disintegration of the common family system, as well as rapid industrialization and urbanization, education and employment. In addition, the laws granted equal status and women's rights had tremendous impact on the institution of marriage that is no longer regarded as an indissoluble union. There has been a considerable legislative and judicial interference in the gamut of matrimonial laws all over the world. Divorce, previously considered evil, has codified laws that are being substantially modified and liberalised.

Irretrievable Breakdown theory

In India, with regards to the Hindu Marriage Act and Special Marriage Act, the Government of India has attempted to include ‘Irretrievable Breakdown of Marriage’ as a ground of divorce as per the recommendations of the 71st report of the Law Commission of India.

Irretrievable Breakdown of Marriage is defined as:

“The situation that exists when either or both spouses are no longer able or willing to live with each other, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties.”

In other words, the irretrievable breakdown of a marriage can be described as such a failure in the marriage relationship or such adverse circumstances to that relationship that there is no reasonable probability of the spouses staying together for mutual comfort and support as husband and wife.

That is, for an irretrievable breakdown of marriage there is still no codified law. The Hindu Marriage Act acknowledges few grounds for marriage dissolution in Section 13. But, with the change in social mores and the changing nature of marriage in society, the supreme court has shown particular concern about making irreparable breakup of marriage a basis for divorce.

Reasons the Court will accept for irretrievable breakdown

·       For a period of time the pair did not live together as husband and wife.

·       One partner had sexual intercourse with another and the other partner finds it impossible to continue living together as husband and wife because of this.

·       After being declared a 'habitual criminal' one partner is in prison. (This means that he or she continues to commit crimes and was sentenced to 10-15 years imprisonment because of this.)

·       One partner deserted the other.

·       One spouse manipulated the other, the husband for instance continues to harass the wife.

·       One partner is a drug addict or an alcoholic.

·       The partners don't love each other anymore-they might be too different or they married too young.

The Supreme Court examined certain cases in A. Jayachandra v. Aneel Kaur. And when the respondent gives priority to her career over her husbands ' rights, it unerringly points to disharmony, propagation so disintegration of marital harmony, from which the Court will deduce irretrievable breaches of marriage.

The Court found the marriage broken down irretrievably, and granted the husband divorce. Nonetheless, this is very surprising, as many times in similar circumstances the court has ordered the restoration of marital rights with the notion of an Hindu marriage being sacrosanct rather than issuing a decree for divorce as the very basis of the restitution decree.

Merits of the theory

The validity of the argument, as argued by the jurists, is that marriage, which in practice is called a sacramental institution, should be founded on the basis of a healthy marriage which is acceptance, compromise and mutual respect. If any of the marriage party isn't ready to live with the other party the relationship won't be a happy one. Stretching such a relationship will do no good to each other, rather it will create resentment and dissatisfaction between the parties. Therefore it is important to end such a marriage to protect the sanctity of marriage, to reduce the number of unhappy marriages and to avoid the precious years of life of the spouses from being wasted.

Demerits of the theory

The Law Commission of India has dealt with the demerits of the irretrievable breakdown principle in detail in Chapter 4 of the 71st report. The two primary oppositions addressed in the report are:

·       It will promote divorce. It will encourage partners to end the marriage out of their own enjoyment, or even to any of the partners.

·       Allowing the culprit to take advantage of his own fault by splitting and dissolving the union.

Conclusion

To conclude, it can be said that marriage is an institution which is deeply interested in the preservation of the public at large. It is the family foundation and, in effect, the culture for which there can be no civilization. This foundation presupposes the existence of a platform built on the basis of sound spousal understanding.

If this understanding between the partners is lacking, and the marriage is a persistent disease, then it is best that the marriage should be dissolved with court intervention. The continuation of such a marriage does not serve any useful purpose. Therefore, such marriage should be dissolved on the basis of the "irretrievable breakdown theory for the mutual benefit of both spouses.

In that eventuality the continuation of such a relationship is meaningless, and such marriage should be broken as per the Irretrievable Breakdown of Marriage theory. It's high time we understood the need for Irretrievable Breakdown of Marriage Theory so that couples can have a new and better life, rather than spending their young days in court.

Did you find this write up useful? YES 2 NO 0
Send
Featured Members view all

New Members view all

×

C2RMTo Know More

Something Awesome Is In The Work

0

DAYS

0

HOURS

0

MINUTES

0

SECONDS

Sign-up and we will notify you of our launch.
We’ll also give some discount for your effort :)

* We won’t use your email for spam, just to notify you of our launch.