Irretrievable breakdown of marriage - ground for divorce

Introduction:
India is a country where the concept of marriage is something more than just an agreement. It is a sacred relationship mainly based on love, trust, and care. It is hard to imagine a marriage where the bond of love, care, understanding, and empathy is missing. But if such circumstances prevail in a marriage, no marital bond will exist between the parties, and it cannot be expected from a party to continue such a marriage. But it is not easy in a country like India to get a divorce based on the abovementioned circumstances because the Indian legal framework does not expressly recognize irretrievable breakdown of marriage as a ground of divorce.

Legal framework for divorce in India:
In India, marriages and family matters are mainly governed by personal laws of religious communities. Therefore, every community has its own law for governing divorce between parties:
1. Hindu Marriage Act, 1955: Sec 13 of the Act is mainly concerned with divorce and provides legal grounds for granting divorce.
2. The Dissolution of Muslim Marriage Act, 1939: Sec 2 of the Act provides grounds for the decree of divorce.
3. Parsi Marriage and Divorce Act, 1936: Sec 32 and Section 32A and B of the Act are the main provisions concerning the grounds of divorce.
4. The Indian Divorce Act, 1869: This act governs matrimonial issues of Christians, and Sec 10 and 10A of the Act lay down grounds for dissolution of marriage.
5. Special Marriage Act, 1954: It mainly governs interfaith marriages, which take place irrespective of religion and customs. Sections 27 and 28 of the Act provide grounds for divorce to the parties to a registered marriage under the Act.

Types of Divorce:
A. Fault theory: Divorces in India are mainly based on the fault theory, as if one party is at fault in the marriage, then the aggrieved one can file an application for divorce.
B. Mutual consent: Both parties mutually agree to divorce each other and apply for divorce. But it requires the free consent of both parties to divorce each other.
C. Irretrievable breakdown of marriage: No-fault divorce refers to a situation where it is almost impossible for a party or both parties to resume their marriage and live in a marital relationship. Indian statutes do not recognise the irretrievable breakdown of marriage as a ground for divorce; therefore, it lacks specific provisions dealing with it.

Meaning of Irretrievable breakdown of marriage
It simply means marital discord where either or both parties give up on their marriage and desire to discontinue it. Majorly, a lack of bond, love, care, empathy, respect, and understanding between the parties compels marital breakdown.
Essentials for irretrievable breakdown of marriage:
· No emotional bond
· Non-performance of marital obligations
· Living Separately for a long time
· Impossibility to reunite parties
· Willingness to discontinue marriage
71st Report of the Law Commission of India (1978). The Law Commission of India (1978), in its 71st report on the Hindu Marriage Act and Irretrievable Breakdown of Marriage, recommended amendments in Hindu Law for recognising irretrievable breakdown of marriage as a ground of divorce.

Stance of the Indian Judiciary:
Only the Supreme Court is allowed to grant a divorce based on the irretrievable breakdown of marriage. Under Art. 142 of the Indian Constitution, the court exercises its power of making an order to do complete justice and grant a divorce where circumstances indicate the substance of a dead marriage. The following are some landmark judgments where the Court finds that the matrimonial bond is completely wrecked and beyond the possibility of repair.
1. N.G. Dastane vs. S. Dastane (1975)—It was observed by the apex court that disharmony or incompatibility between parties cannot be considered cruelty and not a valid cause for the dissolution of marriage. The Court clearly emphasised that only grave incidents will be considered for the dissolution of a marriage. Although the Supreme Court does not directly consider breakdown as a ground, it differs from the fault theory.
2. Naveen Kohli vs. Neelu Kohli (2006)— In the instant case, the parties were living separately for more than 10 years and had initiated multiple civil and criminal proceedings against each other. The Supreme Court, after careful consideration of the extraordinary circumstances of the case, came to the conclusion that the matrimonial bond cannot be repaired and the marriage is subsisting only in name. This was the first case where the court recognized an irretrievable breakdown of marriage as a ground for dissolving a marriage.
3. Samar Ghosh vs. Jaya Ghosh (2007)—The court examined the 71st report of the Law Commission of India on the irretrievable breakdown of marriage. It was admitted that situations causing misery in human life must be halted. It was further emphasised that such situations cannot be ignored by the law, nor can it refuse to respond in such matters. The court relies on the report of the Law Commission and highlights the need for the statutory recognition of the irretrievable breakdown of marriage, with changing trends of modern society.
4. Shilpa Saliesh vs Varun Sreenivasan (2023)—It was held that Article 142(1) of the Indian Constitution, the Supreme Court, in exercise of its discretionary power, can dissolve a marriage on the ground of irretrievable breakdown of marriage.

Conclusion:
Usually, before considering any divorce application, the Court refers parties for an amicable settlement. If this settlement fails, only then will divorce proceedings be initiated by the court. These legal proceedings usually take a long period of time, which is sufficient to cause mental harassment and financial loss to the concerned parties. This causes severe damage to the parties who just want to divorce each other but are forced to continue their marriage unwillingly. Irretrievable breakdown of marriage has been accepted in many countries, including Bhutan, the UK, New Zealand, Australia, and China. Despite its adoption in many countries and reminders of the judiciary, the Indian legislature has not given it any formal recognition. Lack of legal recognition of the breakdown of a marriage causes a party in a dead marriage to suffer irreparable harm.