NATIONAL LAW INSTITUTE

UNIVERSITY, BHOPAL

FAMILY LAW PROJECT

ANALYSIS OF NO FAULT THEORY WITH SPECIAL

EMPAHSIS ON IRRETRIEVABLE BREAKDOWN OF
MARRIAGE AS A GROUND FOR DIVORCE

SUBMITTED TO: SUBMITTED BY:

PROF. DEBASHRI SARKAR MA NASVI

TEWARI
 2014B.A.LL.B.
(HONS.)75

ACKNOWLEDGEMENT

I take this opportunity to express a deep sense of gratitude to The National Law Institute
University (NLIU) for providing me with the opportunity to make this project.
I extend my sincere thanks to everybody who helped with the completion of this project. I am
greatly obliged to our teacher for Family Law for her guidance, monitoring and approval
throughout the course of this project. I am also thankful to the Library Administration for the
provision of necessary books and texts needed for the completion of this project.
 CONTENTS

Introduction................................................................................................................................1
Scope of Study...........................................................................................................................2
Hypothesis..................................................................................................................................2
Objectives of the Project............................................................................................................2
Concept of divorce.....................................................................................................................3
Grounds of divorce.....................................................................................................................4
Theory regarding divorce...........................................................................................................6
Shift to no fault theory...............................................................................................................7
Irretrievable Breakdown of Marriage.........................................................................................8
Why Irretrievable Breakdown?................................................................................................12
Merits And Demerits of the Theory of Irretrievable Breakdown............................................14
-71st Report of The Law Commission Of India (1978)...................................................16
Conclusion................................................................................................................................17
Bibliography.............................................................................................................................18
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INTRODUCTION

Under the Hindu Marriage Act, 1955 both the husband and the wife have been given a right to
get their marriage dissolved by a decree of divorce on more than one grounds specifically
enumerated in Section 13. Some of the grounds initially inserted were substituted and some more
grounds came to be added. It was in the year 1964 that sub-section (1-A) was inserted by which
either party to the marriage was also given a right to apply for dissolution of marriage by a
decree of divorce either where there has been no resumption of cohabitation for the period
specified therein, after the passing of the decree for judicial separation; or where there has been
no restitution of conjugal rights for the period specified therein, after the passing of the decree
for judicial separation; or where there has been no restitution of conjugal rights for the period
specified therein after the passing of a decree for restitution of conjugal rights. Under Muslim
law divorce is known as Talaq and it is an Arbic word and it means ‘to set free’.It is only in
unavoidable circumstances that Talaq is permitted in Islam as a lawful method to bring marriage
contract to end.
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SCOPE OF STUDY

The project restricts itself to study the different types of grounds for divorce under the no fault
theory. The primary objective is to study the concept of no fault theory of divorce with special
reference to the Irretrievable breakdown of marriage.

HYPOTHESIS
There is an need for the introduction and further development of the concept of Irretrievable
breakdown of marriage along with the no fault theory of divorce.

OBJECTIVES OF THE PROJECT

 To elaborate the law of divorce under Hindu Law.

 To analyze the different grounds of no fault divorce.
 The study the concept of Irretrievable breakdown of marriage and how it has evolved.
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CONCEPT OF DIVORCE
The concept of divorce is one that has become increasingly pertinent to today’s society.  People
are bombarded by statistics about its rise and facts about the decreasing stability of the nuclear
family.  Rates of divorce have increased so greatly over the past few decades that people have
come to fear the institution of marriage. Causes of divorce and how it has evolved over the past
three decade are issues that must be addressed in order to understand this problem. While being
surrounded with marital separation, our society is left to ask many questions.  What are some
factors that lead to divorce?  What consequences or negative effects on adults and children are
created by this societal breakdown?  What changes is divorce causing in the family structure of
society?  How have divorce and marriage rates changed over past 30 years?  The dissolution of
marriage is without a doubt a problem for today’s society.  It is probably one of the biggest
problems. 

Divorce was unknown to general Hindu law as marriage was regarded as an indissoluble union
of the husband and wife. Manu has declared that a wife cannot be released from her husband
either by sale or by abandonment, implying that the marital tie cannot be served in any way. It,
therefore, follows that the textual Hindu law does not recognize a divorce. Although Hindu law
not contemplates divorce yet it has been held that where it is recognized as an established custom
it would have the force of law.

Under Muslim marriage: concept of divorce-we all are know that the husband and wife is
necessary condition for a happy family-life. Islam therefore, insists upon the subsistence of
marriage and prescribes that breach of the marriage- contract should be avoided.
 Page |4

GROUNDS OF DIVORCE
The HMA originally recognized the fault grounds for obtaining the decree of divorce. For this
purpose nine fault grounds were mentioned in the Act. Sec. 13(1) and lays down these fault
grounds, on which either the husband or wife could sue for divorce. Two fault grounds have been
dealt with in the sec. 13(2), on which wife alone could seek the decree of divorce. In 1976, the
grounds for divorce by mutual consent have been recognized through provision of the section
13B of the Hindu marriage Act,1955 Says:

There are 9 grounds for divorce available to husband and wife both:

 Adultery- Whether the other party has, after the solemnization of the marriage had
voluntary sexual intercourse with any person other than his or her spouse;
 Cruelty- where the other party has after the solemnization of marriage, treated the
petitioner with cruelty.
 Desertion: Where the party has deserted the petitioner for a continuous period of not less
than two years immediately preceding the presentation of the petition.
 Conversion- Where the party has ceased to be a Hindu by conversion to another religion.
 Unsound mind- where the party has been incurably of unsound mind, or has 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.

 Leprosy- where the party has been suffering from a virulent and incurable form of
leprosy; It is also an incurable from of leprosy and entitles the other spouses to a decree
of divorce.
 Venereal disease- where the other party has been suffering from venereal disease in a
communicable form;
 Renunciation of the world- where he has renounced the world by entering any religious
order; it means renounced the world regarded tantamount to civil death and therefore, it is
given as a ground for decree of divorce.
 Page |5

 Presumed death- where the other party 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;

There are 4 additional grounds for divorce available to only wife:

 Bigamy- a wife may also present a petition for dissolution of marriage on the basis of by
a decree of divorce on the ground that in the case of any marriage solemnized before the
commencement of this Act, 1955, the husband has married again before such
commencement or that any other wife of the husband married before such
commencement of alive at the time of solemnization of marriage
 Rape, sodomy or bestiality - of the Act a wife is entitled to petition for divorce on the
ground of rape, sodomy or bestiality committed on her by the husband..
 Non resumption of cohabitation after decree or order of maintenance- Where a
decree for maintenance of wife , has been passed against the husband, the wife is entitled
to present a petition for divorce provided two conditions are satisfied. First, she was
living apart, and secondly, since the passing of such decree or order cohabitation between
her and her husband has not been resumed for at least one year or upwards, decree of
divorce would be granted.
 Option of puberty- Wife is entitled to present a petition for divorce if her marriage was
solemnized before her attainment of the age of fifteen years provided she has repudiated
the marriage after attaining the age of fifteen years but before attaining the age of
eighteen years. But the petition may be presented after completing eighteen years of age
13..
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THEORY REGARDING DIVORCE

The provisions relating to divorce is contained in Sec 13 of Hindu Marriage Act, 1955.The Act
recognizes two theories of divorce. Under the fault theory, marriage can be dissolved only when
either party to the marriage had committed a matrimonial offence. Under this theory it is
necessary to have a guilty and an innocent party and only innocent party can seek the remedy of
divorce.. Another theory of divorce is that of mutual consent. The underlying rational is that
since two persons can marry by their free will, they should also be allowed to move out of their
relationship of their own free will. Prior to 1976 Divorce only on the basis of fault theory it
means marriage can be dissolved only when either party to the marriage had committed a
matrimonial offence. But now Divorce can also be obtained on the basis of no fault theory, it
means divorce can obtain by the mutual consent of the parties to marriage under the marriage
laws (Amendment) Act, 1976. According to section 13-B (1), such a petition is required to be
moved jointly by the parties to marriage on the ground that they have been living separately for a
period of one year or more and they have not been to live together and also that they have agreed
that marriage should be dissolved.

As per section 13-B (II) of the Act lays down that on the motion of both the parties made no
earlier than six months after the date of the presentation of the petition referred to in sub-section
(I) given above 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 averments in
the petition are true, then pass a decree of divorce, declaring the marriage to be dissolved with
effect from the date of decree.
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SHIFT TO NO FAULT THEORY

There has been a gradual shift from a fault theory to a no fault theory. Previously, the provision
was that after obtaining an order for restitution of conjugal rights, the party which wronged could
not obtain divorce rather only the person who was wronged could move the court for a divorce
order if the restitution does not get executed. The Amendment of 1976 helped introduce the
concept of irretrievable breakdown as it was understood that making the right available only to
one party when the marriage is barely a form with no substance underneath.

In the case of Dastane v. Dastane1, the couple were involved in judicial proceedings for over a
decade with the petition of the husband for judicial separation being dismissed. This case drew
the point for the concept of irretrievable breakdown as a necessity. In Varalakshmi  v. N.V
Hanumanth Rao[2 the husband having obtained a decree for judicial separation, was not allowing
the wife to recommence co-habitation. After completion of the specified period, the husband
petitioned for a decree of divorce. So, here it was argued that the husband cannot be granted
divorce here because that shall lead to his gaining advantage out of his own fault. But the divorce
was granted because co-habitation has to be through mutual agreement.

Even though irretrievable breakdown of marriage has not been stated under Section 13 of the
Hindu Marriage Act, 1955 as a ground for divorce, there have been many judgments which gave
decisions based on the principle.

To further understand the scope of the model, few landmark case laws have been discussed :[8]

Jayachandra v. Aneel Kaur3 – The issue involved here was if in the event of a long drawn
litigation process, a couple can claim divorce to shorten the agony due to the lengthy procedure
through the model of irretrievable breakdown of marriage?

1
AIR 1975 SC 1534
2
AIR 1975 SC 1534
3
2005 (2) SCC 22
 Page |8

The husband in the case complained about the “obnoxious and humiliating” behavior of the wife
and seeked divorce by mutual consent under section 13 of the Hindu Marriage Act, 1955 so as to
avoid unnecessary complications.

However, the court went through the evidence and provided a decree for judicial separation.
Supreme Court in the appeal rather decided that there did exist cruelty and it deduced from the
facts & circumstances that the marriage had irretrievably broken down. The court further stated
that it knows that this concept can be used to provide a decree for marriage but it continued with
a view to complete justice and shorten the mental agony of the parties.

Another landmark case relating to the concept is of Kanchan Devi v. Promod Kumar4wherein the
parties were staying separately for over a period of ten years and every attempt at any
reconciliation turned futile. In its order, the court invoked its jurisdiction under Article 142 of the
Constitution which has the provision to provide “any decree or order as is necessary for doing
complete justice in any case or matter pending before it”

The memorandum of settlement clearly explained that this was a case of divorce by mutual
agreement but the observations of the court clearly reinforced the fact that irretrievable
breakdown of marriage as a model to claim divorce has seeped into the decisions of the courts.

IRRETRIEVABLE BREAKDOWN OF MARRIAGE

4
AIR 1996 SC 3192
 Page |9

This means the couple can no longer live together as man and wife. Both partners, and one
partner, must prove to the court that the marriage broke down so badly that there is no reasonable
chance of getting back together.

Till date, the prevailing laws in India regarding the issue of divorce have not recognized a
situation where the spouses are facing a situation that despite the fact that they live under the
same roof, their marriage is equivalent to a separation. That is, there is still no codified law for
irretrievable breakdown of marriage. The Hindu Marriage Act recognize few grounds for
dissolution of marriage in Section 13.But with the change in the social mores and in view of the
changing nature of marriage in the society, the supreme court has shown special concern over the
matter of making irretrievable breakdown of marriage as a ground for divorce. The Supreme
Court has with a view to do complete justice and shorten agony of the parties engaged in long
drawn battle, directed dissolution of marriage. Because of the change of circumstances and for
covering a large number of cases where the marriages are virtually dead and unless this concept
is pressed into services, the divorce cannot be granted. Ultimately, it is for the Legislature
whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our
considered opinion the Legislature must consider irretrievable breakdown of marriage as a
ground for grant of divorce under the Hindu Marriage Act, 1955.

In A. Jayachandra v. Aneel Kaur5, the Supreme Court examined such cases. And after discussing
the fact gave the following judgment: When the respondent gives priority to her profession over
her husband’s freedom it points unerringly at disharmony, diffusion and disintegration of marital
unity, from which the Court can deduce about irretrievable breaking of marriage. The Court
found the marriage irretrievably broken down and granted divorce to the husband.

The idea behind the declaration of irretrievable breakdown of marriage is also based on the
consent as it play a major role in the occurrence of a valid marriage. Since consent is accorded
primacy at the time of marriage, it follows that when one or both parties believe that the marriage
has broken, they can petition for divorce. When both parties agree the marriage has failed, they
can apply for divorce by "mutual consent". When only one of the parties believes that the

5
MANU/SC/1023/2004
 P a g e | 10

marriage is failing, it would be enabling for the party to seek divorce arguing that the marriage
has broken down, despite the unwillingness of the other party to end the relationship.

However, except in the Islamic law, "irretrievable breakdown of marriage" is not found in any
legislation as a specific ground for divorce.

The breakdown theory of divorce which is inherently attached with no fault theory of divorce
represents the modern view of divorce. Under this theory, the law realizes a situation and says to
the unhappy couple: if you can satisfy the Court that your marriage has broken down, and that
you desire to terminate the marriage since the situation that has become intolerable, then your
marriage shall be dissolved, whatever may be the cause. When there is not an iota of hope that
parties can be reconciled, it can be considered as irretrievable break down of marriage.

Another logic why this theory holds is that after the marriage has ceased to exist in substance and
in reality, there is no reason for denying divorce .Divorce should be seen as a solution and an
escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past,
but is concerned with bringing the parties and the children to terms with the new situation and
developments by working out the most satisfactory basis upon which they may regulate their
relationship in the changed circumstances

There are five central concerns about bringing the ground of irretrievable breakdown of marriage
into the divorce statute6. These are:

1) Marriage relationship is accorded sanctity in our society, which would be treated with levity if
this ground of divorce is available;

2) Divorce carries social stigma, especially to the wife;

3) This ground permits husbands to terminate a marriage relationship at will;

4) This ground could be misused by an errant husband and;

5) That subjective elements exist in the understanding of "irretrievability" and "breakdown".

6
Refer to: http://www.thehindu.com/todays-paper/tp-features/tp-metroplus/when-its-an-irretrievable-
breakdown/article3196254.ece
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Recognition of irretrievable breakdown of marriage as a ground for divorce requires to set aside
our notions of the sanctity of the marriage relationship. The sanctity that such relationship has
arises only from the exceptional sharing and trust that such relationship involves, and cannot be
sustained on external notions of unity and obligation. Related to this is the issue of stigma, which
we need to overcome and address instead of the dependencies arising out of such relationships.
This would matter tremendously in helping the woman regain some measure of confidence. The
last three objections can be dealt with together, by introducing in the ground for irretrievable
breakdown, adequate safeguards which introduce objective elements to determine when there is
an irretrievable breakdown, and providing for the ancillary issues in the marriage relationship to
be resolved as a condition for grant of divorce. This would include financial support to the
spouse and children, arrangements on the custody of the children, distribution of the property of
the spouses, etc. Where the spouse applying for the divorce has committed a wrong, this could be
a factor in determining the maintenance granted to the other spouse. While this ground may seem
an attractive and easy option, the introduction of objective factors to determine breakdown will
ensure that this ground is not opted for on whim or an impulse.

No-fault theory does not require any one of the parties to be guilty; no fault needs be proved. It is
also referred to as the “breakdown of marriage”. A divorce based on the no fault theory can be
through mutual consent or without the consent of the opposite party due to an irretrievable
breakdown of marriage7

WHY IRRETRIEVABLE BREAKDOWN?

The theoretical basis for including the irretrievable breakdown of marriage as a ground for
divorce is now commonly known among lawyers and jurists. Restricting the ground of divorce to

7
http://www.legalservicesindia.com/article/article/irretrievable-breakdown-of-marriage-676-1.html
 P a g e | 12

a particular offence or matrimonial disability causes injustice in those cases where the situation is
such that although none of the parties is at fault, or the fault is of such a nature that the parties to
the marriage do not wish to divulge it, yet there has arisen a situation in which the marriage
cannot be worked; that is, where the marriage has all external appearances of marriage but none
of the reality. In such circumstances, there is hardly any utility in maintaining the marriage as a
façade, when the emotional and other bounds which are the essence of marriage have
disappeared. After the marriage has ceased to exist in substance and in reality, there is no reason
for denying divorce. In a situation like this, the parties alone can decide whether their mutual
relation is emotionally and socially real and strong or not. Divorce should be seen as a solution
and a way out of a difficult situation. Such divorce should not be concerned with the wrongs of
the pasts, but must focus on bringing the parties and the children to terms with the new situation
and developments by working out the most satisfactory basis upon which they may regulate their
relation in the changing scenario.

One of the facts from which the irretrievable breakdown can be presumed is, whether the
husband and wife have been living apart continuously for a long time. However, living apart
should be the only proof of irretrievable breakdown. Thus, it is not enough for the parties to aver
that there as been an irretrievable breakdown of marriage.

In Sandhya Rani v. Kalyanram Narayanan 8the Court reiterated and took the view that since the
parties are living separately for the last more than three years, we have no doubt in our mind that
the marriage between the parties has irretrievably broken down. There is no chance whatsoever
of their coming together. Therefore, the Court in such cases, grant the decree of divorce.

Matrimonial matters are matters of delicate human and emotional relationship. It demands
mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments
with the spouse. The relationship has to conform to the social norms as well. The matrimonial
conduct has now come to be governed by statute framed, keeping in view such norms and
changed social order .Therefore, it would not be appropriate to apply any submission of

8
(1994) Supp. 2 SCC 588
 P a g e | 13

"irretrievably broken marriage" as a straitjacket formula for grant of relief of divorce. This aspect
has to be considered in the background of the other facts and circumstances of the case.

Naveen Kohli v. Neelu Kohli9 the Supreme Court recommended to the Union of India to
seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate
irretrievable breakdown of marriage as a ground for divorce in the following words: “Before we
part with this case, on the consideration of the totality of facts, this Court would like to
recommend the Union of India to seriously consider bringing an amendment in the Hindu
Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant
of divorce.

There is no use of keeping two persons tied by the matrimonial relationship when they cannot
live peacefully. Where wedlock has become a deadlock, since parties are living separately, and
after marriage the wife has lived only for a few months in the matrimonial home, wife having
made allegations of cruelty and desertion against the husband and husband having made counter-
allegations against her, the court in Krishna vs. Som Nath10 held that marriage is irretrievably
broken and it is in the interest of justice that decree of divorce be granted so that both the parties
can live in peace.

MERITS AND DEMERITS OF THE THEORY OF

IRRETRIEVABLE BREAKDOWN
A law of divorce is based mainly on fault is inadequate to deal with a broken marriage. Under
the faulty theory, guilt has to be proved; divorce courts are presented concrete instances of
human behaviour as bring the institution of marriage into disrepute. Because of the divorce of
matrimonial offence, judges, and lawyers are sometimes reduced to the role of scavengers. The

9
(2006) 4 SCC 558
10
(1996) DMC 667
 P a g e | 14

lawyers have to look for and expose and the judges are confronted with, the worst obscenities
within a married life. It is therefore, not surprising that with the present adversary system all
types of allegations are freely hurled across the courtroom. We need not stand on an old divorce
law which demands that men and women must be found innocent or guilty. It is desirable to get
rid o the public washing of dirt linen which takes place in long drawn-out cruelty cases or in
cases based on fault. If divorce is allowed to go through on the ground of marriage breakdown,
such an unhappy spectacle will be avoided.

One cannot say that it is an enhancement of the respondent for marriage if there are tens of
thousands of men and women desperately anxious to regularize their position in the community
and they are unable to do so. People should be able to marry again where they can obtain a death
certificate in respect of a marriage already long since dead. The objection that irretrievable
breakdown as a ground of divorce is vague has been already dealt with. Other objections to it
may be dealt with-

a) Irretrievable breakdown allows the spouses, or even one spouse, to terminate the marriage at
will, thus transforming marriage from a union for life into one which can be ended at pleasure,

b) It is necessary to the basic principle that no man should be allowed to take advantage of his
own wrong; a spouse who was responsible for the breakdown of marriage should not be able to
rely on such breakdown in order to obtain a divorce against his or her partner’s will. By
authorizing one spouse to divorce the other against the latter’s will after separation for a specific
period, the law will have given statutory recognition for the first time to the principle that a
person may take advantage of his or her own wrong.

The theory that one cannot take advantage of one’s own wrong has not been adhered to in the
Hindu Marriage Act in the past. According to clause (ii) of sub section (1A) of section 13 of the
Act, either party to a marriage, whether solemnized before or after the commencement of this
Act, may present a petition for the dissolution of the marriage by a decree of divorce on the
ground that there has been no restitution of conjugal rights as between the parties to the marriage
for a period of one year or afterwards after the passing of a decree for the restitution of conjugal
rights in proceedings to which they were parties. This provision clearly contemplates that even
 P a g e | 15

the party which has been in the wrong in so far as it has failed to comply with a decree for
restitution of conjugal rights can also apply for a decree of divorce on the ground that there has
been no restitution of conjugal rights as between the parties to the marriage for a period of one
year or upwards after the passing of the decree for restitution of conjugal rights in a proceeding
to which they were parties. Such a party, though at fault, would thus be taken advantage of its
own fault. It cannot therefore be said that under the provision of the Hindu Marriage Act, as they
stand at present, no person can be allowed to take advantage of his own wrong.

Thus, once the marriage has broken down beyond repair, it would be unrealistic for the law not
to take notice of that fact, and it would be harmful to society and injurious to the interests of the
parties if the legal bond is sought to be maintained notwithstanding the disappearance of the
emotional substratum. Such a course would encourage continuous bickering perpetual bitterness,
and may often lead to immorality. Where there has been a long period of continuous separation,
it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a
fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does
not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and
emotions of the parties.

Public interests demands not only that the married status should, as far as possible, as log as
possible, and whenever possible, be maintained, but also that the court should be empowered to
declare defunct de jure what is already defunct de jacto, where a marriage has been wrecked
beyond the hope of salvage, public interest lies in the recognition of that fact. To keep the sham
is obviously conducive to immorality and potentially more prejudicial to the public interest than
dissolution of the marriage bond.

Since there is no acceptable way in which a spouse can be compelled to resume life with the
consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has
ceased to exit. Marriage is lifelong cohabitation in the home. When the prospect of continuing
cohabitation has ceased, the legal tie should be dissolved.

71ST REPORT OF THE LAW COMMISSION OF INDIA (1978)

 P a g e | 16

The Law Commission in its 71st report, submitted in 1978, dealt with the concept of irretrievable
breakdown of marriage. It is considered to be a very influential report. The report deals with an
important question concerning the Hindu Marriage Act, 1955, whether irretrievable breakdown
of marriage can be made a ground for divorce under that Act and if so, to what extent and subject
to what conditions?

The Law Commission observed that restricting divorce to matrimonial disability results in an
injustice in cases where neither party is at fault, or if the fault is of such a nature that the parties
do not wish to divulge it and yet the marriage cannot be worked out. It refers to a situation where
the emotional and other bonds, which are the essence of marriage, have disappeared and only a
façade remains. The commission concludes that where a marriage has ceased to exist both in
substance and in reality, divorce should be seen as a solution and an escape route out of a
difficult situation. Such a divorce should be concerned with bringing the parties and the children
to terms with the new situation and working out a satisfactory basis for regulating relationships
in the changed circumstances. Not to dwell on the ‘wrongs’ of the past.

CONCLUSION
Marriage is, no doubt, an individual relationship, but more than that it is asocial institution
having complex social dimensions. The true happiness that the institution of marriage can bestow
upon a man/woman is found only in the continued pursuit of harmony by a couple. The
indiscreet and unguided divorce law may destroy all that is good in marriage institution. It is
larger social interest which should be put above the individual interest of parties. Most of the
developed countries of the world have recognized irretrievable breakdown of marriage as an
independent ground of divorce. he Supreme Court of India has granted divorce in many cases not
 P a g e | 17

only on the basis of adultery, cruelty or desertion but more so because in their opinion the
marriage between the two parties had completely broken down.

The Apex Court also held tthat where there are grave situations where there are not only
accusations between one another, but where the mere foundation of the marriage has broken and
cannot be restored at all, then the Court must pass a decree of divorce on the ground of
irretrievable breakdown of marriage. Granting divorce protects the interest of the innocent party
but there are cases in which both of the parties are at fault or one party is at fault and the
relationship between the parties has turned absolutely acrimonious and beyond any type of
repair. In such issues, there has to be a form or way out of the dead wedlock for these people .It
is a matter of fact that once the marriage has broken down beyond repair, it would be unrealistic
for the law not to take notice of the fact, and it would be harmful to society and injurious to the
interests of the parties.

We can thus conclude that it is evident that the judiciary has taken a serious note of
irretrievable breakdown of marriage as an independent ground of divorce and has tried to
implement it.

BIBLIOGRAPHY
Statutes referred

1. Hindu Marriage Act, 1955

Miscellaneous Resources
1. Dr. Diwan Paras, Modern Hindu Law.
2.PDF(http://www.academia.edu/1891806/IRRETRIEVABLE_BREAKDOWN_OF_MA
RRIAGE_RIGHT_OF_A_MARRIED_COUPLE)
 P a g e | 18

3. http://www.legalserviceindia.com/articles/break_mar.htm
4. http://journal.lawmantra.co.in/wp-content/uploads/2015/09/11.pdf

Reports referred
1. 71st Law Commission report on The Hindu Marriage Act, 1955- Irretrievable
Breakdown of Marriage as a ground of Divorce.