Theoretical overview
Marriage being regarded as a sacrament under Hindu Law.
Living together happily, as opposed to merely cohabiting for a number of years, is what makes a marriage successful. Numerous instances exist where a couple makes an effort to improve their relationship but instead grows resentful, which ultimately results in their separation.
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.
The circumstance that exists when one or both spouses are unable or unwilling to coexist, destroying their husband-and-wife relationship and leaving them with no chance of taking up their former spousal responsibilities.
In other words, an irretrievable breakdown of a marriage can be described as a failure in the matrimonial relationship or as a set of circumstances that are so harmful to the marriage that there is no chance that the spouses will still be able to support and comfort one another as husband and wife.
Relevant sections
1.Section 13 of Hindu Marriage Act, 1955 -While Clause 1 of Section 13 presents the general grounds of divorce that are available to both the parties involved in a broken marriage, Clause 1-A, introduced in the Act of 1955 by the Hindu Marriage (Amendment) Act, 1964, provides two further grounds for obtaining a divorce decree. Clause 2 of Section 13 specifically provides four grounds that can be availed for getting a divorce only by the wife.
2. Section 13A of Hindu Marriage Act, 1955 – Alternate relief in divorce proceedings. In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi), and (vii) (Conversion, Renunciation, and Presumption of Death) of sub-section (1) of section 13, the court may if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.
3. Section 13B of Hindu Marriage Act, 1955- This section mandates that in case of divorce by mutual consent, there has to be a composite period of 18 months of separation — one year provided in Section 13B (1) and six months in Section 13B (2).
4. Section 14 of Hindu Marriage Act, 1955- This section prohibits the filing of a divorce petition within the first year of marriage. Since temperamental differences between the partners can be resolved over time and should not be used as grounds for divorce, it establishes a window for reconsideration and reconciliation.
5. Section 15 of Hindu Marriage Act, 1955- Divorced persons when may marry again. When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.
Important case law
Naveen Kohli v. Neelu Kohli
We can observe that the Supreme Court itself advised the Government to carefully consider incorporating “irreversible breakdown of marriage” as a reasonable ground for granting divorce under the Hindu Marriage Act, 1955.
Points to remember
- 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.
- An irretrievable breakdown of a marriage can be described as a failure in the matrimonial relationship or as a set of circumstances that are so harmful to the marriage that there is no chance that the spouses will still be able to support and comfort one another as husband and wife.
