The Supreme Court recently dissolved a marriage by exercising its inherent powers under Article 142 of the Constitution, even as it recognised that there is no statutory law for recognising irretrievable breakdown of marriageas a ground for divorce in India
The disputing parties were married in May, 1993, and the wife conceived out of wedlock and gave birth to a son in August, 1995. Since the beginning, both parties were conflicted, and it was evident that their problems were stemming from their differences in opinions.
Consequently in 1999, the husband filed a petition under Section 13(1) (i)(a) and (i)(b)  for a decree of divorce in the Family Court, Hyderabad. In this petition, the husband submitted that his wife was cruel towards him and she frequently stayed with her parents. However, the family court refused to grant a divorce under these sections since they were not convinced about the infliction of cruelty and also due to the lack of mutual consent. Moreover, they also denied divorce on the grounds of irretrievable breakdown of marriage despite the supporting precedents from SC.
The dissatisfied appellant, i.e. the husband, approached the Apex Court with an appeal against the judgement of Andhra Pradesh HC.  He, in his appeal, sought a divorce from his wife on the grounds of irretrievable breakdown of marriage.
Whether the order and judgment, passed by Family Court and later confirmed by High Court of Andhra Pradesh, regarding refusal to grant divorce on the grounds of irretrievable breakdown of marriage, is in accordance with the previous judgments (precedents) given by Supreme Court of India, and whether the marriage had indeed irretrievably broken down?
Arguments of the Parties
The petitioners relied on their living situation, living separately for over 22 years, and contended that this separation provided strong evidence regarding the failure of their marriage which is now broken beyond repair, since their differences have been persisting for more than two decades and cannot be resolved now, thence there is no chance of this marriage surviving. He also agreed to pay a reasonable amount as alimony to the estranged wife after this decree of divorce is granted.
Hence, the counsel representing the petitioner requested the court to exercise powers specified under Article 142 to dissolve the marriage, by granting divorce on grounds of irretrievable breakdown of marriage. The petitioners supported their arguments by relying on the precedents decided by Supreme Court wherein the court had acknowledged this as a ground for divorce, and was sure that the marriage is non-retrievable as it has now become emotionally dead, and is in a state that is beyond salvage.  Therefore, they allowed the decree of divorce even in the absence of any law, specifically discussing this ground of divorce, since they believed that justice could be served in these cases, only with the exercise of this special power.
However, the wife and her counsel argued that since there was no express recognition of this ground under the hindu laws, therefore divorce cannot be granted. They contended that previously divorce was granted on such grounds only when both parties consented to it. They relied on the precedents adjudged by the SC to support their argument and prayed that the court grants them relief in a similar way as the Family Court and HC.
Interpretation and Analysis of the Law
The Court based their decisions on the grounds that since the relationship between both the parties is strained and estranged for 22 years, hence it is evident that there are nil possibilities for a reunion. None of the efforts were fruitful in the past, and any efforts henceforth are also likely to be the same. Therefore, in such cases, the courts have previously granted relief to the parties seeking a divorce, even if only one of the parties is consenting since it is evident and the court also strongly believes that the relationship is completely broken and irreparable.
The judges, in this case, relied on the reasoning given in the Neelu Kohli case  and asserted that it will be unrealistic and unnecessary to force people to continue to be a part of a relationship that has long been dead, merely by applying legal provisions for the same. The prime essence of a bond established through matrimony is companionship, and if the parties have long been living separately, then making it a mandate to continue the same, is injurious to the interests of the parties and even the society as a whole. Moreover, the judiciary has the responsibility to ensure the proper functioning of the society by interpretation and application of laws, hence supporting a legal bond with no emotions will eventually lower the sanctity of matrimonial bonds.
Maintaining a relationship as important as marriage is the duty of the judiciary; but forcing such relationships on people is a futile attempt since a broken relationship cannot be mended by forceful application of law, as it simply leads to emotional abandonment and incompatibility which are major issues in matrimony.
Based on their views, the bench also recommended amending HMA,1955 to include the principle of ‘irretrievable breakdown of marriage’ or ‘irreconcilable differences’ as a ground for divorce. The Court also relied on the judgment of Sukhendu Das vs. Rita Mukherjee and asserted that even though there is no specific ground of law on which divorce could be granted, however, it is evident from the facts of the case that the marriage has broken down irretrievably hence the court allows the divorce.
Thus, the Court believes that it is essential to exercise the powers granted under Article 142 to dissolve this marriage. The bench stated that when both parties are willing to divorce then they could do so by mutual consent, however, in such cases, where only one party is willing, this aggrieved party has no remedy. So, the courts can invoke powers granted by the Constitution of India under Article 142 to do justice in cases with similar subject matter to protect the interest of both the parties, since being attached in a relationship with no ties and emotional attachment, is ultimately detrimental for the individual as well as the society. Yet the Court protected the financial interest of the wife and determined an amount of 20 lakhs as permanent alimony, which was to be given within a fixed time.
The court allowed the husband to divorce his wife on the grounds of irretrievable breakdown of marriage but he had to pay a hefty amount as alimony.
Judicial approach on the issue of ‘irretrievable breakdown of marriage’
In India, the judicial approach on issues with less specific laws has always been ambiguous. The Hindu Marriage Act specifies certain grounds for divorce however is silent whether ‘irretrievable breakdown of marriage’ is included within them. However, countries like the USA, Australia, and South Korea recognize this as a ground of divorce and also alternatively use ‘irreconcilable differences’ to define this as one of the grounds for divorce.
Indian judiciary has adjudged two famous cases with the same subject matter in a conflicting manner. In the 2006 case, the judges of the Apex Court recognized that the couple had been living separately for a very long time and had a lot of issues between them which subsequently led to them filing numerous civil and criminal cases against each other. In such a case, the Hon’ble Bench opined that the facts of the case, clearly depicted that the couple is at a point in their marriage where their differences are irreconcilable and no ‘workable solution’ is possible, therefore it is in the interest of the parties as well as the community to allow the dissolution of marriage on the grounds of ‘irretrievable breakdown of marriage’.
However, the Supreme Court in the 2010 case, adjudged by Justice Katju and Justice Markanday refused to dissolve the marriage on the same grounds. The judges opined that it is the function of the legislature to make new laws and hence they will read and interpret the law in its present form alone. Thus, they refused to grant divorce due to the absence of clear laws and completely disregarded the previous precedents by stating that any decision not in consonance with the existing laws is not a good precedent.
Objectively, it is evident that it is a constitutional obligation on the part of Indian courts to read this unexpressed principle into the divorce-related provisions of the Hindu Marriage Act, since the constitution has provided the judiciary a responsibility to direct and guide legislations in certain directions by passing judgments beyond the current law to ensure justice. Article 141, 142 and 144 provide the judiciary powers to ensure complete delivery of justice even in the absence of laws expressly governing the matter. Moreover, Indian divorce laws are still based on fault theory whereas this principle is a part of the non-fault theory. Therefore, it appears that exceptional efforts of the judiciary can alone inspire legislative reform in our divorce laws.
The judiciary especially is granted powers to dispense justice to the citizens, even in the absence of laws. Generally, the laws formulated by the legislature are interpreted, applied ,and explained by the judiciary; yet in certain cases the judicial decisions inspire formulation of newer laws since the decisions and opinions of the judges reflect and depict the needs of the present society. Thus, facilitating the law-making process by showing a certain desired path.
Moreover, Section 13 was amended and widened in 1964 since it mentions ‘either party’ seeking divorce. Thus, the judiciary is empowered to grant divorce if only one-party consents which was the major argument in the present case as well as other precedents. Additionally, the liberal and progressive justices at SC have acknowledged that in personal relationships like marriage, pregnancy and adoption the judiciary sometimes has to think and interpret beyond the mere word of the law. The court in a 2017 case reiterated that the court can exercise its discretion to waive down the cooling period if the circumstances suggest that there is no possibility of parties resuming cohabitation.
Over the years, HC as well as the SC has witnessed numerous cases seeking divorce on this ground. Mostly these cases are where the couples have been living separately for a very long period of time and any efforts made by the courts to resolve the issues between the couples have been futile and this separation and constant tiff has made both parties cynical and unwilling. Thus, granting divorce, in these cases, is the most reasonable and demanded remedy.
‘For quality adjudication, therefore, it is imperative to remain wedded to the core values of certainty, uniformity and predictability that constitute the inalienable components of ‘constitutional culture’ in a democracy.’
Legislators and Popular Demands in Conflict
‘When friends can end their relationship, why can’t a couple?’
Popular morality and modern trends are in perfect consonance with the idea promoted by the phrase mentioned above, however, the legislatures still maintain that divorce should be the last resort in a marriage, and should be only granted in cases of extreme personal issues where both the parties have already tried all solutions and means for reconstitution and they have proved to be futile.
The collective views of the citizens and the justices are in conflict with that of the legislature, whereas, the judiciary is ambiguous in its approach. The courts in India follow doctrine of precedence, however the Apex Court has itself adjudicated cases on the same subject matter, in a conflicting manner. Some benches recognised that long separation both physically and mentally majorly affects the matrimonial relationship. Also, failure of continuous conciliatory efforts is a clear indication of the futility of the marriage since it merely continues to exist on paper. Therefore, they deemed such situations as irreconcilable differences and hence allowed divorce on grounds of irretrievable breakdown of marriage. Hence, it is now imperative to introduce socio-legal reforms recognising this no-fault ground for divorce, both legally and statutorily.
Respected Legislators- Please Stop Finding ‘Faults’ in the No Fault Theory
The lawmakers continue to exclusively rely on the grounds based on fault theory for granting divorce, even though numerous bills have been introduced (2010,2013,2015 and 2020) for inclusion of irretrievable breakdown of marriage as a ground for divorce but none of them has until now made any effect.
The supporters of this principle claim that this theory is essential, especially, in modern times since often circumstances and situations render a marriage as an inconvenience and ultimately led to discontentment for both the parties, since, none of them are at fault. Their differences are indeed irreconcilable in nature and have eventually failed the marriage. The main concern of the legislature, here, is maintaining ‘the sanctity of marriage’ while the concern of the judiciary is ‘reconciling the couples in conflict’ through mediations, conciliation and trials. However, both organs ultimately work and aim for the better relations between the spouses which is the essence of this ground, since situations beyond control, even marriages, are not good neither for the individuals nor the society, therefore it is best if they are separated. Moreover, the law makers have always been careful when dealing with personal matters of the citizens since the most cited reasons are lack of evidentiary basis in proving any fact, within the four walls, then why this force companionship now? Moreover, it is inhumane and unreasonable to force a couple together when one party is clearly unwilling.
Divorce should now be seen as a solution and an escape from the worst and the couples unwilling to adjust and compromise should be allowed to divorce. This will also reduce alienation of affection after divorce and enable the couple to be better parents (if any child) by reducing animosity developed during gruesome trials.
Families today work as a coalition since both the members are working, therefore in case of differences and eventually divorce; the inadequate laws are a problem to the couple as well as the society. They are forced to live with a legal sanction for a dead relationship, which is more difficult since the legislature refuses to acknowledge it as broken marriage and the judiciary is diverse and conflicted in its opinion and judgments.
Though it appeared that the NDA government wanted to incorporate the ground into the HMA act in 2015 since the earlier attempt in 2013 was futile due to the change in the central government. However, still due to increasing representations against the bill it continues to be a part of the shelved bills waiting to see the daylight. The conservative members of the society believe that the bill will eventually instead of removing the lacuna concerning divorce laws in India, promote live in relationships or frequent divorces which is against the moral construct of the society. However, they fail to consider that such long separation period in a marriage and discontentment or abandonment are the major reasons for increased extra marital affairs and resorting to prostitutes for casual sexual relations.
Suggestion for making Divorce laws as His & Hers rather than Us
Procedural Laws in India are sufficiently able to check any malpractices that might stem out from this no-fault principle. Yet the legislators continue to find faults in this principle to simply prove it unnecessary. However, proving grounds like adultery and cruelty are lengthy and time taking while ground of irresolvable difference allows the parties to divorce merely on the inability of the partners to find emotional, mental or physical compatibility. It also gives the parties a chance to engage in other relationships before it’s too late, as seen in the present case.
The lawmakers fail to consider judicial reforms and advice on the issue, since they believe that the purpose of principle of fault is that no spouse benefits from its faults, however with cases like ex-parte decisions, commonly happening today, one of the spouses does benefit immensely. Thus, inclusion of such ground will allow the couple to separate from a dead marriage while introducing checks and balances like time periods, maintenance and alimony. The government needs to understand that it is the need of the hour to reform and amend the union of marriage and its concerning laws so that marriage for future generations is amended from a bond of lifetime to a relationship at will.
It is evident that inserting an apt legislation will introduce uniformity and certainty with the application of necessary safeguards. Ascertaining a time period, involvement of ADR methods, expertise of mediators and evaluators will be beneficial for both parties. Moreover, the ground should not be an absolute ground, the parties need to provide circumstantial basis and evidence for their separation and the irreconcilable differences existing. This could happen in ADR processes like Mediation and Conciliation. Also, Section 89 of CPC allows the judiciary to provide recourse to the parties to such ADR processes. Thus, the courts can also ensure and suggest that the parties discuss all relevant financial and custodial matters.
This will guarantee the maintenance of privacy and voluntariness on the part of the parties and the judiciary can ensure that there is no misuse of these grounds in the interests of the society. Therefore, most high-profile divorce cases garner a lot of media attention which eventually compromises with the privacy rights of the couple individually and together. Since, at certain times the parties know that there was some fault on their part and the differences could not be worked out and they do not wish to divulge the same. The increased number of marriage counselling in the nation suggests that it helps parties However, the financial aspects are in conflict hence they could not go for mutual consent. Additionally, it will also help both the families and the couple to come to a satisfactory basis in this altered relationship without expressly blaming the other party for the failed marriage. Agreeing for a divorce through mutual consent is not supported by some families thus making it difficult for the wives to agree in these cases, irrespective of them living separately for years. Incorporation of such a ground will speed up the process of divorce without expressly blaming either of them for faults or giving up. Providing an expedient ground for untying matrimonial bonds will serve as a legislative reform that advances the rights and interests of both the citizens as well as the government.
Additionally, simplifying the process of divorce will also have a positive reflection on the widespread misuse of 498-A for pressuring the other party for hefty alimony accompanied by speedily divorce. Since the exceptions of marital rape and other fallacies account for some of the major reasons for misuse of prevalent laws. They are overused due to lack of provisions addressing specific issues as is prevalent in other parts of the world and are used to hasten the process of divorce by threatening the other party. False allegations and lengthy procedures are the plight of family courts which could be largely reduced by simply introducing an updated law (irretrievable breakdown).
Introducing a simplified procedure for divorce is important to ensure that a healthy perception of marriage persists in the society for future generations to believe and accept it rather than be scared of it and view it as a burden.
 R.Srinivas Kumar v. R.Shametha irretrievable breakdown , O.P. No. 157 Of 1999.
Hindu Marriage Act, 1955.
R.Srinivas Kumar v. R.Shametha,C.M.A. No. 4142 Of 2003
The Apex Court in previous cases dealing with same subject matter invoked its powers specified under Article 142 of the Constitution and granted the decree of divorce by allowing the parties to dissolve marriages on the ground of ‘irretrievable breakdown of marriage’.
Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558; Sanghamitra Ghosh v. Kajal Kumar Ghosh, (2007) 2 SCC 220; Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511; Durga Prasanna Tripathy v. Arundhati Tripathy, (2005) 7 SCC 353.
The Apex Court has earlier relied on the powers granted under Article 142 to dissolve marriages broken beyond repair on similar grounds. The following judgments were given before 2000. However, even then the judiciary, until 2019, still appears to be non-uniform in its approach in dealing with cases arising from similar issues(irretrievable breakdown).
Romesh Chander v. Savitri, (1995) 2 SCC 7; Kanchan Devi v. Promod Kumar Mittal, (1996) 8 SCC 90; Anita Sabharwal v. Anil Sabharwal\; (1997) 11 SCC 490; Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226; Kiran v. Sharad Dutt, (2000) 10 SCC 243.
Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379; Manish Goel v. Rohini Goel, (2010) 4 SCC 393; Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234; Darshan Gupta v. Radhika Gupta, (2013) 9 SCC 1,
Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558.
Sukhendu Das v. Rita Mukherjee, Civil Appeal No. 7186 of 2016.
The Apex Court has earlier relied on the powers granted under Article 142 to dissolve marriages broken beyond repair on ground of ‘irretrievable breakdown of marriage’. British Lords acknowledged this as a ground in a 1926 case in India (then under British Rule). However, even then the judicial approach, until 2019, still appears to be non-uniform. Since SC has adjudged cases both in favour and against this as a ground of divorce. Hence, the High Courts rely on either of them, because of which there is widespread uncertainty. This also leads to burden on the judiciary since most losing parties use appeals to approach the SC relying on the precedents favouring their arguments. Thence, it is important that we have specific provisions recognising ‘irretrievable breakdown of marriage’ or ‘irreconcilable differences’ as a ground of divorce while also expressly specifying conditions which will be considered valid while granting divorce on this(irretrievable breakdown ) ground.
Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558.
Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379.
Amardeep Singh v. Harveen Kaur, AIR 2017 SC 4417.
Munish Kakkar v. Nidhi Kakkar, CIVIL APPEAL NO. 9318 OF 2014.
Virendra Kumar, “Varying Judicial Responses To Dissolution Of Marriage By Mutual Consent Under The Hindu Marriage Act, 1955: A Crisis Of Constitutional Culture”, Journal Of The Indian Law Institute , April-June 2010, Vol. 52, No. 2 (April-June 2010), Pp. 267-286 https://www.jstor.org/stable/4395349.
Justice Krishna Iyer, Aboobacker v. Manu, AIR 1971 KLT 663.
Indian Penal Code.
 These Law Commission Reports elaborated and considered all aspects of No Fault Principle in Indian Context: 71st Report Law Commission of India, https:/indiankanoon.org/doc/18314230/ and 217th Report Law Commission of India, https:/indiankanoon.org/doc/117804397/.
BY MAHIMA AGRAWAL | SYMBIOSES LAW SCHOOL, PUNE