In legal terms, irretrievable breakdown of marriage is defined as “A situation that exists when either or both spouses are no longer able or willing to live with each other, thereby ending their relationship of husband and wife with no hope of resumption of spousal duties.” Marriage is the cornerstone of social organization, and it is regarded as a sacrament in Hindu law, which is indissoluble and permanent. As a result, Hindu law consist an element of inherent injustice towards the spouse whomsoever feels their fundamental rights are being violated in any manner. The Hindu Marriage Act of 1955, which grants some matrimonial remedies, is intended to address such inequities among spouses and safeguard the sacred component of marriage. A divorce decree can only dissolve a marriage on any grounds listed in Section 13 of the Hindu Marriage Act, 1955, whether it was solemnized before or after the Act’s inception. According to Hindu marriage act no partner can have a second marriage until the first one has been dissolved.
Modern society has become highly complex due to changes in socio-economic conditions, such as the breakdown of the united family structure, increasing industrialization and urbanization, and changes in education and employment. Furthermore, legislation granting women equal status and rights has had a significant impact on the institution of marriage, which is no longer regarded as an irreversible partnership. For a long time, there has always been a great deal of governmental and judicial meddling in marriage laws all around the world. Divorce, which was once thought to be bad, has codified regulations that are being significantly amended and liberalized. According to the recommendations of the Law Commission of India’s 71st report, the Government of India has attempted to incorporate ‘Irretrievable Breakdown of Marriage’ as a cause of divorce in the Hindu Marriage Act and Special Marriage Act. Irreversible marital breakdown is described as a failure in the matrimonial connection or conditions detrimental to the partnership that there is no reasonable chance that the spouses will continue together as husband and wife for mutual comfort and support.
History of Irretrievable Breakdown of Marriage
The topic of Irretrievable Breakdown of Marriage is addressed in the Law Commission of India’s 71st report published in 1978. The report is based on the initial question of whether an Irretrievable Breakdown of Marriage can be included as a reason for divorce under the Hindu Marriage Act, and if so, to what extent and under what conditions.
New Zealand has been the first Commonwealth country to establish that a three-year separation agreement could be used as grounds for filing for divorce in the courts. The first divorce on the grounds of the irreversible breakdown of marriage was granted by a New Zealand court in 1921. The court was of the belief,
“It is not in the interests of the parties or the public to keep the man and woman linked as husband and wife in law when matrimonial relations have ceased to exist. In the event of such separation, the primary aim of marriage is unfulfilled, and its continuation is not only pointless but malicious. As a result, the breakdown theory in matrimonial law was developed.”
The case of Masarati v. Masarati, in which both parties to the marriage had committed adultery, marked the beginning of this idea in England. On the wife’s petition for divorce, the court of appeal found that the marriage had broken down. ‘The objectives of good divorce law are two: one, to buttress rather than undermine the stability of marriage, and two, when regrettably a marriage has broken down, to enable the empty shell to be destroyed with maximum fairness, minimum bitterness, humiliation, and distress. According to England’s report, Irretrievable Breakdown of Marriage was designated the sole cause for divorce under section 1 of the Divorce Law Reforms Act, 1973, on the proposal of the Law Commission.
The Commonwealth of Australia’s Matrimonial Causes Act, 1959, allowed divorce based on marital breakdown. The Law Commission stated in its report that the rule limiting divorce to matrimonial incapacity causes injustice in circumstances where neither party is at fault or the fault is of such a kind that neither party desires to disclose it, but the marriage has ended. In other words, irreversible breakdown of marriage refers to a situation in which emotional relationships, respect, and other aspects of a marriage’s foundation have vanished, leaving merely a façade in the name of marriage.
Finally, the Law Commission states that when a marriage has ceased to exist in substance and fact, divorce must be considered as a way to avoid a painful solution. There is no harm is parting ways where two people are not happy and comfortable in each other’s space, both individual might be perfect individuals but might not find happiness in each other. Rather than focusing on flaws during the divorce process, such a divorce should focus on helping the parties and their children accept the new position and figure out a sufficient basis for regulating relationships in the wake of the changed circumstances.
Why Irretrievable Breakdown?
Restricting the grounds for divorce to a specific offence or matrimony al disability is unfair in situations where even though neither party is at fault, or the fault is of such a nature that the parties to the marriage do not wish to disclose it, the marriage did not work. When the emotional and other bounds that constitute the basis of marriage have vanished, there is little use in preserving the marriage. There is no reason to refuse divorce after the marriage has ceased in substance and reality. In this case, only the parties can determine whether or not their mutual relationship is emotionally and socially authentic and robust. Divorce should be viewed as a viable option for resolving a troubled marriage. Such a divorce should not be concerned with previous wrongs but rather with bringing the parties and their children to terms with the new circumstances and developments by determining the most acceptable basis for controlling their relationship in the changing scenario.
Theories of Breakdown of Marriage
Society has radically altered due to shifting requirements, attitudes, and aptitudes, and it is extremely difficult for married couples to adapt to change. While adjusting to a new environment in the, spouses may make mistakes, whether deliberately or unknowingly, with or without intention, whether economically dependent or independent, leading to a communication breakdown and chaos in the home.
According to the Doctrine of Recrimination, no remedy can be offered to the party who is at fault. To offer a matrimonial remedy, the law requires one party to be innocent and the other to a fault. It is not necessary to prove who is at fault in the case of no-fault divorce. There are various reasons why a married partnership may be jeopardized. Suppose the parties show that their marriage is beyond repair with trustworthy documentation on file. In that case, the law should recognize the reality of the situation and assist the parties to the marriage that has irreversibly broken down.
The current understanding of divorce is represented by the breakdown theory of divorce, which is inextricably linked to the no-fault theory of divorce. According to this idea, the law recognizes a scenario and tells the unhappy couple that if they can convince the court that their marriage has broken down and want to end an uncomfortable situation, their marriage will be dissolved, regardless of the cause. When the marriage’s objectives are not met, the marriage is considered broken. When there is no glimmer of hope that the parties will reconcile, the marriage can be regarded irreversibly broken.
1) The Fault Theory, also known as the Offenses Theory or the Guilt Theory, states that a marriage can only be dissolved if one of the parties has committed an infraction. There must be a guilty and an innocent party, and only the innocent party can seek divorce relief. However, the most apparent disadvantage is that there is no recourse if both parties are at fault.
2) The consent theory recognizes that the partners in a marriage may decide to end it together. This is what “divorce with mutual consent” means. According to this notion, the parties must live apart for a defined period before filing for divorce. Application of divorce must be complete in two stages before the divorce is finalized. Importantly, the parties are expected to decide on related but significant issues, including maintenance, distribution of shared property, and child custody.
3) The theory of No-Fault is defined because marriage is unique in terms of its socio-economic and legal foundations. It would be unjust if the law overlooked its significance.
Amending Hindu Marriage Act
According to news reports dated February 19, 2015, and July 12, 2015, the then NDA government had decided to repeal the UPA government’s Marriage Law Amendment Bill 2013. Irretrievable Breakdown of Marriage was included in the Bill as Section 13C. On August 26, 2013 bill was passed by The Rajya Sabha. It could not be debated in the Lok Sabha. The then-Law Minister, Sadanand Gowda, revealed that the government was still studying the bill’s ramifications after receiving more than 70 objections.
Even though the law was created as a bill to fill a gap in divorce law, opponents of the Marriage Laws Amendment Bill argue that if implemented, it will lead to a rise in illicit and live-in relationships, eroding the institution of marriage and family values. Another concern expressed by the groups was a rise in crime and excessive litigation.
Criticism of Hindu Marriage Law
The judges of the High Courts have spoken out against the addition of irreversible breakdown as a divorce reason. The simple fact that there is a breach between the parties or that they are living apart, for the time being, does not imply that the marriage is over. It’s possible that something that appears irreversible to one person may not be irreversible to another.