Author: Mansi R. Jadhav, Shahaji Law College, Kolhapur.
To the Point
Irretrievable breakdown of marriage refers to a situation where the marital relationship has collapsed beyond repair, leaving no possibility of reconciliation between the spouses. In a society that values personal liberty and psychological well-being, it is unjust to compel individuals to remain in marriages that are emotionally dead. The doctrine of irretrievable breakdown of marriage represents a necessary evolution in matrimonial jurisprudence by acknowledging that the legal existence of a marriage cannot override its practical demise. It reflects a shift from the fault-based divorce to a no-fault framework, where the focus is not on blame but on the impossibility of restoring the marital tie. Yet, its codification must come with strict safeguards to prevent the doctrine from becoming a legal shield for those responsible for the marital collapse, thereby protecting the rights of the innocent spouse from further injustice.
Abstract
This article calls for the inclusion of irretrievable breakdown of marriage as an independent ground for divorce under Indian matrimonial statutes. It analyses the limitations of the prevailing fault-based system, which often intensifies conflict and delays relief. The article underscores the importance of adopting a no-fault approach that reflects modern social realities and respects the personal agency and dignity of individuals trapped in failed marriages. At the same time, it warns against the misuse of this ground, especially by spouses who are primarily responsible for the collapse of the marriage. The article proposes a balanced legislative model that upholds individual dignity while incorporating judicial safeguards to ensure the doctrine is not exploited at the cost of justice.
Use of Legal Jargon
Irretrievable Breakdown of Marriage: The permanent dissolution of the marital relationship where the parties cannot resume cohabitation.
No-fault Divorce: A system where a divorce is granted without proving any wrongdoing by either party.
Defaulting Party: It denotes the individual whose actions or behaviour have significantly contributed to the collapse of the marital relationship.
Judicial Discretion: The ability of courts to decide based on fairness, justice, and equity.
Article 142 of the Constitution: Article 142 grants the Supreme Court the authority to pass any decree or order deemed necessary to ensure complete justice in a given case.
The Proof
Why Irretrievable Breakdown is Needed
India’s matrimonial laws, primarily embodied in the Hindu Marriage Act, 1955, and Special Marriage Act, 1954, are predominantly based on the fault theory of divorce. Divorce is currently granted only when specific matrimonial offences such as cruelty, adultery, desertion, conversion, insanity, renunciation, venereal disease which is communicable and not heard from for seven years or more are proven. This adversarial approach forces litigants into a cycle of blame and defence, often escalating hostility and trauma.
In reality, many marriages disintegrate due to loss of mutual respect, emotional connection, or compatibility, even in the absence of any statutory fault. Such irreconcilable differences are not recognized by existing laws, leaving spouses remain legally tied in relationships that have lost emotional depth and mutual connection.
A fault-based divorce often distorts truth by compelling one party to inflate or fabricate allegations to escape an unworkable marriage. This increases litigation time, legal costs, and emotional distress. More importantly, it fails to acknowledge the lived reality of individuals for whom coexistence is no longer tenable, even if statutory fault cannot be proven.
The psychological well-being and dignity of individuals are paramount in the 21st century.
The state should not force persons to endure oppressive marital situations solely to uphold archaic moralities. At some point, the law must acknowledge that the essence of marriage companionship, support, and mutual trust is no longer present and cannot be restored. In Lodder v. Lodder, Salmond J., stated, “when a matrimonial tie has ceased to exist de facto for that period, it should cease to exist de jure as well.” This principle underscores the need for the law to recognize factual realities rather than perpetuate legal fictions to the detriment of personal dignity and justice.
Role of Law Commission Reports
The Law Commission of India, has consistently advocated for the formal recognition of irretrievable breakdown as an independent and valid ground for divorce under Indian matrimonial laws. This recognition stems from evolving societal realities and the need to address the legal and emotional burdens associated with marriages that have completely failed.
The 71st Law Commission Report (1978) recommended the inclusion of Irretrievable Breakdown of Marriage as ground for divorce under the Hindu Marriage Act, 1955. In line with the Law Commission’s suggestion, the Marriage Laws (Amendment) Bill, 1981 was introduced in Parliament to incorporate this concept into statutory law. However, it faced opposition particularly from women’s organisations concerned about the potential misuse of such a provision and was ultimately allowed to lapse.
Decades later in the 217th Law Commission Report (2009), which reaffirmed the earlier recommendation and urged swift legislative action. The report proposed that irretrievable breakdown be formally recognized under both Acts, Hindu Marriage Act, 1955 and Special Marriage Act,1954 while also advising that courts must confirm adequate financial arrangements for both spouses and any children before granting a decree of divorce. This approach aimed to balance the need for divorce in broken marriages with necessary protections against injustice.
Following this recommendation, the Marriage Laws (Amendment) Bill, 2010 was introduced, to insert Irretrievable Breakdown of Marriage as ground for divorce. These provisions allowed either spouse to petition for divorce on the grounds of irretrievable breakdown, provided the parties had been living separately for a continuous period of at least three years. Upon judicial satisfaction that the marriage had failed beyond repair, the court could grant a divorce. Although the Rajya Sabha passed the bill in August 2010, it lapsed with the dissolution of the 15th Lok Sabha in 2014.
A renewed effort was made through the Hindu Marriage (Amendment) Bill, 2013, which also proposed the same legal additions—Section 13C and Section 28A to recognize irretrievable breakdown as a ground for divorce. The Bill passed the Rajya Sabha on August 26, 2013, but was never introduced in the Lok Sabha.
The Law Commission’s repeated calls for reform successive legislative initiatives reflect a clear policy direction toward acknowledging irretrievable breakdown of marriage. While such a ground has yet to be codified, these efforts present a robust framework for future legal reform that balances the realities of failed marriages with the need for judicial oversight and equitable relief.
Supreme Court’s Approach
In recent years, the Supreme Court of India has adopted a pragmatic yet cautious stance in dealing with the concept of irretrievable breakdown of marriage, despite its absence as a statutory ground under the Hindu Marriage Act, 1955 or the Special Marriage Act, 1954.
In the judgment of Rajib Kumar Roy v. Sushmita Saha (2023), the Court dissolved the marriage on the basis of living separately for 12 years, emotional detachment, and persistent bitterness. The judiciary has consistently acknowledged that certain circumstances point to a complete and irreversible breakdown of a marital relationship, warranting judicial intervention. In this circumstance, the Supreme Court has exercised its special authority under Article 142 of the Constitution to bring the marriage to a legal end and deliver equitable relief to both parties.
In Vikas Kanaujia v. Sarita (2024), the Supreme Court held that the marriage had irretrievably broken down, as the couple had lived together for only 43 days in 22 years. The Court noted that despite the wife’s stated willingness to reunite, her actions contradicted her claims. Mediation efforts had failed, and the prolonged separation, along with continued legal disputes, showed that the matrimonial bond was beyond repair. Therefore, the Supreme Court dissolved the marriage by invoking its extraordinary powers under Article 142 of the Constitution.
However, the judiciary has consistently warned against adopting a blanket or mechanical application of this doctrine. While affirming the cultural and moral value of marriage as a deeply respected institution in Indian society, the Court has also emphasized that divorce on the basis of irretrievable breakdown must be approached with caution. In Nirmal Singh Panesar v. Paramjit Kaur Panesar (2023), the Court refrained from granting divorce despite the husband’s plea for dissolution as wife expressed her genuine willingness to resume her marital obligations and also did not want to carry the social stigma attached to being a divorcee woman. The Court observed that unilateral claims of breakdown cannot override the commitment and readiness of the other party to uphold the sanctity of marriage.
Marriage, Autonomy, and Constitutional Values
Marriage is considered as a sacred bond in Indian tradition. The courts have also held that it cannot be enforced as a one-sided obligation when the essence of the relationship is mutual respect, love, trust, and companionship has irretrievably failed. In Shah Bano Begum v. Mohammad Ahmed Khan (1985), the Supreme Court acknowledged that personal laws must evolve in harmony with constitutional morality and fundamental rights.
Recognizing irretrievable breakdown as a statutory ground does not detract from marriage’s sacredness; rather, it respects the dignity and freedom of individuals to exit a relationship that has lost its essence. The courts have repeatedly cautioned that such a ground must be accompanied by safeguards to prevent misuse and protect the innocent spouse, thus maintaining a balance between preserving social values and upholding constitutional rights.
At its core, the idea of irretrievable breakdown marks a humane shift in matrimonial law one that recognises that preserving a marriage should never come at the expense of a person’s dignity or emotional well-being. It’s a realistic and compassionate approach that aligns with both changing social values and constitutional ideals.
Case Laws
1. Naveen Kohli v. Neelu Kohli (2006)
This case laid the first strong judicial foundation for irretrievable breakdown. The Court recognized the futility of forcing couples to remain in a dead marriage. The Court held Irretrievable Breakdown of Marriage as a valid ground for granting a divorce and recommend the Legislature to amend the Hindu Marriage Act, 1955 to incorporate relevant provisions according to the judgment.
2. Samar Ghosh v. Jaya Ghosh (2007)
Primary issue was mental cruelty; the judgment blurred the lines between emotional cruelty and irretrievable breakdown. The Court emphasized emotional separation, absence of companionship, and long-term incompatibility all elements central to the idea of breakdown.
3. Shilpa Sailesh v. Varun Sreenivasan (2023)
This Constitution Bench ruling is the most recent and authoritative. The Court explicitly held that even in the absence of specific statutory provision, a divorce can be granted on the ground of irretrievable breakdown using Article 142 to do complete justice.
4. Kanchan Devi v. Promod Kumar
The parties were living separately for over a decade and reconciliation attempts had failed. The Court dissolved the marriage, stating that the law must respond to lived realities rather than preserve dead relationships.
5. Delma Lubna Coelho v. Edmond Clint Fernandes
The Court refused divorce after just 40 days of marriage, as reconciliation still seemed possible. This case shows that courts apply the principle cautiously and only when reconciliation is clearly impossible.
Conclusion
In a rapidly transforming social framework, the institution of marriage must be supported not just by ritualistic sanctity but by functional harmony. The concept of irretrievable breakdown of marriage respects the sacred bond of marriage while recognizing the need for a realistic solution when the relationship cannot be saved. The Courts have rightly acknowledged that forcing parties to remain bound in a lifeless marriage amounts to emotional incarceration, not protection of social values.
As observed in multiple judicial pronouncements, irretrievable breakdown has emerged not merely as a facet of judicial discretion but as a reflection of lived human realities. This sentiment reflects the need for law to recognize the truth of human estrangement rather than merely preserve legal fictions.
However, the absence of clear legislative codification renders the remedy of irretrievable breakdown uncertain and susceptible to selective application. It is, therefore, not only prudent but necessary to codify it as a statutory ground for divorce, while embedding procedural safeguards to protect vulnerable spouses from misuse. The judiciary, while applying this doctrine, must exercise restrained discretion. As each marriage is different, the doctrine must not be used mechanically or as a matter of routine it is the solemn duty of the court to apply it only in cases where the facts truly justify its invocation.
American jurist Roscoe Pound rightly observed, “The law must be stable, but it must not stand still.” Codifying irretrievable breakdown as a ground for divorce tempered with judicial prudence is not merely consistent with constitutional morality, but is essential to uphold the evolving standards of justice, human dignity, and individual freedom. It is time to align matrimonial law with the moral and emotional fabric of modern society, where peace of mind and mutual respect take precedence over the illusion of matrimonial continuity.
FAQS
Q1: What is irretrievable breakdown of marriage?
It refers to a situation where the relationship between spouses has deteriorated so badly that there is no chance of reconciliation.
Q2: Is irretrievable breakdown currently a valid ground for divorce in India?
No, it is not recognized under statutory law.
Q3: What are the risks of introducing this as a legal ground?
The main danger is misuse by the defaulting spouse, potentially denying justice to the innocent party.
Q4: What safeguards should accompany this ground?
Judicial discretion, minimum separation periods, financial relief to the innocent spouse, and prior mediation attempts.
