The Changing Concept of Marriage in

Hindu Law: Context of Irretrievable

Breakdown of Marriage.

Submitted to: Asst. Prof. Gagan Preet

Submitted by: 15205 Bhagwati Tiwari

Project Group: 24th

Table of Contents

ACKNOWLEDGMENT .................................................................................................. 2

1. INTRODUCTION ..................................................................................................... 3

2. NATURE OF MARRIAGE AND DIVORCE UNDER HINDU LAW…………..4

3. THEORIES OF MARRIAGE. ................................................................................. 5

4. IRRETRIEVABLE BREAKDOWN OF MARRIAGE ..........Error! Bookmark not
defined.6

4.1 LAW COMMISSION REPORT ........................................................................ 7

5. EVOLUTION OF BREAKDOWN THEORY: CASE STUDIES ....................... 10

6. CONCLUSION ........................................................................................................ 13

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ACKNOWLEDGMENT

I would like to express my sincere gratitude to Dr. Gagan Preet for giving me the
opportunity to work on this intriguing project. I learned a lot about the different concepts
of marriages under Hindu Law with special focus on Irretrievable breakdown of
marriage, during the process of completing this project. I would also like to thank my
friends who helped me in the research work associated with it. I am thankful for the
guidance provided to me for completion of this project within the stipulated time.

2
“While there is no rose which has no thorns but if what you hold is all thorn and no rose,
better throw it away.”1

1. INTRODUCTION

One of the oldest institutions among Hindus as well as among human society and
civilization for that matter is the concept of marriage. It holds one of the most important
places in the social life of a human being as being most resistance less means of
procreation and enjoying the society and comfort of a person from other gender.

Among Hindus there are ten famous sacraments or „sanskaras‟ to which he/she has to
abide by in the life time, one of the most important inter se is the marriage. The prevalent
way of marriage known as Kanyadan in which a father entrusts his daughter in the hands
of a physically and mentally capable man which after marriage becomes her „husband‟
and then she becomes the „wife‟, is accepted in Hindu way of life since vedic inception
and has since then assumed a high religious significance. According to Raghunandan
marriage is the only sacrament or „sanskaras‟ which is available to each and every Hindu
irrespective of his/her social status, caste or sex.

An inseparable relationship is thus formed between the man and woman who after
marriage are called to be husband and wife, according to Hindu marriage. The
relationship cannot be broken by any means whatsoever even when the wife starts living
a very wretched life, according to Manu, the daughter is given in marriage only once and
she remains the wife of that person to whom she is given in marriage.

After the popular influence of industrialization and modernization, self-volition and

personal rights regarding any matter of a person‟s social life became very important. The
sacramental nature of the Hindu marriage concept was attacked as the prevalence of
divorce took place on the paths of English matrimonial laws. Once the sacramental nature
of the Hindu marriage was attacked and marriage started to take a contractual nature, next

1
Paras Diwan, Family Law, 2016, 10th ed., p. 27.

3
logical step was to develop the concept of divorce as a person can err to enter into
contract similarly a person can err to enter into marriage. Hence the origin of different
theories to divorce and the relevance of „irretrievable breakdown‟ theory inter se.

2. NATURE OF MARRIAGE AND DIVORCE UNDER HINDU LAW

The present Hindu Marriage Act has effected certain changes in the law marriage, which
have long been bearing upon its nature, it no longer remains a pure sacrament and a
binding religious duty, in the sacred texts, marriage created an inseparable tie between
the husband and wife which could not be broken in any circumstances whatsoever.2

But the Hindu Marriage Act of 1955 by providing several matrimonial remedies
including mainly divorce and nullity of marriage has seriously evaded its sacramental
nature, S.T. Desai, the revising author of Mulla‟s “Principle of Hindu Law” concludes
that „a hindu marriage under the Act, it is submitted, is not entirely or necessarily a
sacrament but a union of a man with a woman to the exclusion of all others satisfied by
solemnization of the customary rites and ceremonies of either party essential for
marriage; and directly it creates a relation and status not imposed or defined by contract
but by law.3

Prior to the enactment of the Hindu Marriage Act in 1955, the courts, according to
Derrett “generally regarded themselves as hamstrung in matters of marriage an
ddivorce…. Times have changed…. and we find the judges protesting that these are not
the days of Manu and other Rishis and that what latter had to say does not obtain as law
to day.”4

It is however, common knowledge that the number of divorce cases is rising and there is
a common perception that the law is responsible for it.5 Even the Supreme Court has
remarked that the Hindu Marriage Act 1955, is breaking more homes than uniting them,
expressing concern over the huge number of divorces, the court lamented that now a days
divorce petitions were being prepared even before nuptial knots are tied, “When a

2
Mulla, Principles of Hindu Law, p. 686.
3
Ibid.
4
J. Duncan M. Derrett, The Death of Marriage Law: Epitaph for the Rishis, 1978, pp. 89-91.
5
J. Duncan M. Derrett, A Critique of Modern Hindu Law, 1970, p. 329.

4
marriage takes place, the respective spouses keep a divorce petition ready, anticipating
breakdown”, remarked Justices Arijit Pasayat and G.S. Singhavi, hearing a case where a
couple was fighting for the custody of their eleven years old son.6

It is significant to note that there can be no divorce de hors grounds/ provisions under this
Act, and also the ground(s) for divorce have to be established before a decree can be
granted; this is so even in case of ex parte proceedings under s. 13 Hindu Marriage Act,
nor can there be a divorce for consideration.7

A marriage performed under Hindu law can be dissolved only as per the provisions of the
Hindu Marriage Act, a wife who sought divorce as she wanted to show her status as
“single” on her passport to enable have to go abroad and live with her son was denied
relief as the act does not provide for any such ground for divorce.8

3. THEORIES OF DIVORCE

In early Roman Law, marriage and divorce were essentially private acts of the parties,
whenever two parties wanted to marry they could do so, and whenever they wanted to put
their marriage as under they are equally free, with the advent of Christianity, marriage
came to be regarded as sacramental and indissoluble union, though it retained its
consensual aspect, in England before 1857, a marriage could be dissolved only by an Act
of Parliament, after a considerable pressure, divorce was recognized under the
Matrimonial Causes Act, 1857, but only on one ground, i.e., adultery.9 It seems that with
the lofty ideals of liberty and equality of the Industrial Revolution sweeping England and
the continent of Europe, it no longer remained possible to regard marriage as
indissoluble, however, marriage is also regarded as a social institution and not a merely a
transaction between two individuals, and therefore it was argued that there was a social
interest in preservation and protection of the institution of marriage.10

6
“Hindu Marriage Act is breaking down homes says SC”, Hindustan Times, 18 June, 2008.
7
Sanjeeta Das v. TapanMohanty, (2010) 10 SCC 222.
8
Order of ADJ, Delhi, see “woman denied divorce for showing „single‟ status in passport” PTI, New Delhi,
20th September, 2013.
9
Paras Diwan, Family Law, 2016, 10th ed., p. 27.
10
Paras Diwan, Family Law, 2016, 10th ed., p. 36.

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The institution of marriage was hedged with legal protection, the inevitable consequence
of this philosophy was that marriage came to be regarded as a special contract which
could not be put to an end like an ordinary contract, a marriage can be dissolved only if
one the spouses is found guilty of such acts and conducts which undermined the very
foundation of marriage.11

It is obvious that both the fault theory and consent theory failed to provide adequate
solution to the problem of the deadlocked wedlock, a search for a new divorce, was
inevitable, in Gollins v. Gollins,12 and William v. William,13 the courts said that the
purpose of divorce law is not punish the guilty spouse but to protect the innocent
spouse.14

This was a fundamental shift in the policy in Masarati v. Masarati,15 where both the
parties had committed adultery, the Court of Appeal, on wife‟s petition for divorce, said
that the key factor in a divorce petition was the breakdown of marriage, if marriage had
broken down, no social or public interest would be served by keeping the spouse
together, the gate for the reception of breakdown theory was opened up.16

4. IRRETRIEVABLE BREAKDOWN OF MARRIAGE

The ever increasing hustles of a person in modern life have called for lots of remedies for
ending unhappy marriages and other associations. The inception of modernization and
urbanization in the late 20th century also lead to the formation of nuclear families and
more divorces.
So far as a divorce laws in India, specially the Hindu law, are concerned, we have moved
from divorce under exceptional circumstances to a divorce on demand and are now
heading towards a divorce on grounds of irretrievable breakdown of the marriage.17 The
Hindu Marriage Act, 1955 was the first Central act, which revolutionized the matrimonial

11
Ibid.
12
(1963) 2 AII ER 966.
13
(1963) 2 AII ER 994.
14
Ibid.
15
(1969) 1 WR 392.
16
Paras Diwan, Family Law, 2016, 10th ed., p. 27
17
See Marriage Laws (Amendment) Bill, 2013, passed by RajyaSabha in August, 2013.

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laws and provided for divorce on several grounds, these grounds are available equally to
both the spouses, apart from these grounds, the wife was given to additional grounds,
though the grounds for divorce was primarily fault based, yet, an element of breakdown
without fault could be seen in various grounds, example the ground that the other party
had not been heard of as being alive for 7 years or more, involved no fault.18

The theory of breakdown was further advanced by amendment in section 13 (1) cls. (viii)
and (ix) in 1964, prior to 1964 only the decree holder could apply for a divorce on the
ground of non-resumption of cohabitation for a period of 2 years or more after obtaining
a decree of judicial separation of restitution of conjugal rights but after the amendment of
1964 which replaced cls. (viii) and (ix) of section 13 with section 13 (1A), even the party
against whom the decree was made could apply for divorce, the idea was to end stalemate
because quite often a party would simply obtain a decree of restitution or judicial
separation without anything more thereby keeping the marriage in a state of Limbo, the
judgment debtor, in such a case had no locus standi to seek divorce. As aptly remarked
by the Bombay High Court in Madhukar v. Saral.19

A further step towards the recognition of the principle of breakdown was the introduction
of mutual consent as a ground for divorce in 1976, by inserting section 13B in the Hindu
Marriage Act 1955, in the Parsi marriage law of this ground was introduced in 1988, the
Indian Divorce Act 1869 introduced mutual consent only in 2001.20

It may, however, be pointed out that though mutual consent divorce does away with the
requirement of imputing misconduct or fault on the part of the respondent, yet, it does not
provide a satisfactory solution in situation where even though the marriage is not
workable, yet, one of the parties refuses to give consent to the divorce, by mutual consent
to dissolve a marriage comprehends breakdown of the marriage, yet, not in all cases of a
broken marriage is mutual consent possible, as a result, the marriage legally continues to
subsist in this context reference may be made of Delhi High Court judgment in Gulab Rai

18
Hindu Marriage Act, 1955; After the 1976 amendment, a wife has four additional grounds.
19
AIR 1973 Bom 55, p. 57.
20
See Section on „Divorce by Mutual Consent‟.

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Sharma v. Pushpa Devi.21 A husband sought divorce on the ground of wife‟s desertion
but since the charge could not be proved, his petition was dismissed, the evidence on
record in this case clearly proved that the marriage had failed nevertheless no fault could
be attributed to any party.22 Justice Sachar lamented:

An unfortunate situation has arisen where none of the parties is at fault, but still
they do not have the grace and sensitivity to agree to a divorce by mutual consent,
in the state of affairs, I have to with great reluctance, uphold the binding of the
trail court that desertion is not proved which alone would have enabled the
appellant to get a decree…. Law as at present is quite rigid and the human
sensitivity which should have found some way either to smoothen the relation
between the parties or to put an end to it has not triumphed.23

Angrej Kaur v. Baldev Singh was another case of an exercise in futility, the husband‟s
petition for restitution was dismissed as it was found that the wife had reasonable ground
to live separately, after 29 years of marriage and 15 years of virtual separation, the
husband filed a divorce petition stating that they were living separately for several years;
and in fact the parties stated that they could not live together which implies that the
marriage had broken, the District Court decreed but not on appeal, the High Court held
that it was the husband who was at fault and even though both parties admitted that they
could not live together, yet, divorce was not granted since could not prove any statutory
ground, however, alternate relief of judicial separation under section 13-A was granted.24

4.1 Law Commission Report

The Law Commission of India, in its seventy-first report, strongly recommended the
introduction of breakdown of marriage as a ground for divorce, According to the
report:
Restricting the ground of divorce to a particular offence or matrimonial
disability… causes injustices 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
21
(1979) ILR 2 Del 220.
22
Supra Note 13, p. 59.
23
Ibid.
24
AIR 1980 P&H 171.

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 the parties to the marriage do not want to divulge it, yet there has arisen a
situation in which the marriage cannot be worked, the marriage has all the
external appearance 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 the other bonds which are essence of
marriage have disappeared.
Accordingly, it suggested the introduction of breakdown theory also, in addition
to fault grounds, in the divorce law, separate living of the parties for three years
with no prospectus of reconciliation would be indicative of breakdown of the
marriage, the report also suggested certain safeguards to check unbridled
divorces, apart from the law commission of India, jurists, academicians and the
courts have also been making a plea for introducing this ground in the
matrimonial laws.25
In 1981, a bill was introduced providing for irretrievable breakdown as a ground
for dissolution of the marriage but it did not get through as some groups felt that
unscrupulous husbands would desert their wives and take advantage of this
provision.26In 2009 once again the Law Commission has, vide its 217th Report,
recommended the incorporation of irretrievable breakdown of the marriage as
another ground for divorce, pursuant to that and Apex Court recommendations,
another Bill was introduced,- The Marriage Laws (Amendment) Bill, 2010, and
then the Marriage Law (Amendment) Bill, 2013.27 While introducing the
breakdown principle in Hindu matrimonial law Parliament overlooked the fact
that the structure of divorce was based on fault theory with the result that Section
23 Hindu Marriage Act was not amended, properly looked in Chaman Lal v.
Mohinder Devi, in which it is submitted that if judges apply the petitioner taking
advantage of his wrong doctrine to the Breakdown principle of divorce there will
be hardly any occasion and when divorce will be available.28

25
Paras Diwan, „Divorce Structure of the Hindu Marriage Act, 1955 and the Special Marriage Act 1954’
26
B. Sivaramayya, „Irretrievable breakdown of marriage as a ground for divorce: gateway to way
liberation or oppression‟.
27
Kusum (ed.), Women: March Towards Dignity, 1993, pp. 56-62.
28
AIR 1968 Punj. 287.

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5. EVOLUTION OF BREAKDOWN THEORY: CASE STUDIES

Of late, the courts in our country have been adopting a more liberal and realistic approach and
several judgments bear testimony to the fact that they no longer cling to the traditional notion of
inviolability of the marriage Bond.29

In a case involving Muslim parties, Krishna Iyer J. made the following observations as early as in
1971:30

trivial differences get dissolved in course of time and may be treated as teething troubles
of early matrimonial adjustment, the stream of life lived in married mutuality washes
away smaller pebbles but that is not the case when the incompatibility of minds breaks up
the flow of stream, in such cases the breakdown of marriage is evident so we recognize
fact and Accord divorce31.

The following observations of justice Sabyasachi Mukherjee in Saroj Rani v.Sudarshan Kumar
are significant in this context:32

… we reach this conclusion of granting divorce without any mental compunction because
it is evident that for whatever be the reasons, this marriage has broken down and the
parties can no longer live together as husband and wife; if such is the situation, it is better
to close the chapter.33

In Kanchan Devi v. Pramod Kumar34, divorce case had a chequered history and parties were
living separately for over a decade, the court found that there was no possibility of reconciliation;
so invoking article 142 of the Constitution of India it passed a decree of divorce.35In Sanghmitra
Singh v. Kailash Chandra Singh,36a husband sought divorce, the wife informed the court that the
husband had already clandestinely married another lady and a criminal case had already been
filed against him, granting the divorce, the court observed:37

29
Parihar v. Parihar, AIR 1978 Raj 140.
30
Aboo Baker Haji v. MamuKoya, (1971) ILR Ker 338, p. 345.
31
Ibid.
32
Saroj Rani v.Sudarshan Kumar.
33
Ibid
34
AIR 1996 SC 3192 : (1996) 8 SCC 90.
35
SnehPrabha v. Ravinder Kumar, (1996)1 HLR 280 (SC).
36
AIR 2001 Ori151 : (2001) 91 CLT 404.
37
Poonam Gupta v.Ghanshyam Gupta, AIR 2003 AII 57.

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 … whether the husband has married for second time or not, it is now clear that the
marriage has irretrievably broken down and none of the parties want restoration of marital
tie… accordingly, by applying the doctrine of „irretrievable breakdown‟, we grant a
decree of divorce upon consent of both the parties.38

So also, in Krishna Banerjee v. B. B. Bandopadhyay,39 where there was evidence of mental and
physical cruelty by the wife to the husband coupled with the fact that they were living separately
for 16 years, the court found that it was a fit case for divorce as the marriage between the parties
had broken down and they could no longer live together as husband and wife.40

In Durga Prasanna Tripathiv. Arundhati Tripathi,41a husband filed a petition on the grounds of
desertion, the parties stayed together only for seven months and were living separately for 14
years; all attempts by the husband and his parents to bring the wife failed, after citing several
authorities, the court observed that a good part of their lives was consumed in this litigation and
the end was not in sight, also it was matter of record that dislike for each other was burning hot.42

Consequently the court held: „marriages are made in heaven, both the parties have crossed the
point of no return, a workable solution is certainly not possible, parties cannot at this stage
reconcile themselves and live together forgetting the past as a bad dream,‟ marriage was
constantly dissolved.43

However, mere fact of long separation is no ground for holding that the marriage had irretrievably
broken down, nor is lengthy litigation per se, a ground for considering a marriage as broken,
accepting of such an argument, the court held in Neeta Kirit Desai v. Bina Samuel George,44
would mean that in all matters wherever matrimonial litigation went on for 5 to 10 years, the
divorce must follow, in Indian courts any litigation however minor it maybe, takes years for the
decision in the original court, in appeal takes their own share of time, under these circumstances,
merely lengthy period of litigation cannot be Pressed into service to contend that marriage is dead
for all practical purposes, the same view has been held by the Bombay High Court in Bajrangi
Gangadhar Revedkarv. Pooja Bajrang revedkar,45the plea of irretrievable breakdown on the
ground that it took over a decade for the family court to decide the case was dismissed, it was

38
Anita Kachba v. K. R. Kachba, AIR 2003 Bom 273.
39
AIR 2001 Cal 154.
40
Ibid.
41
AIR 2005 SC 3297.
42
Dinesh Mandal v. Meena Devi, AIR 2005 Jhar 77.
43
Shankar Chakrovarty v. Pushpita Chakrovarty, AIR 2005 Jhar 92.
44
AIR 2003 Bom 7, p. 10.
45
AIR 2010 Bom 8.

11
held that the fact that family court has not taken the matter for hearing for so long does not give
the husband a new ground to say that since a considerable time has elapsed therefore a decree of
divorce can be granted on the ground of irretrievable breakdown.46

Likewise the observations of the court in Chandrakala Trivedi v. S.P. Trivedi,47 are indicative of
the court‟s attitude in this respect:

whether the allegation of the husband… and the findings recorded by the … courts are
correct or not but what is certain is that once such allegations are made by the husband
and wife as have been made in this case then it is obvious that the marriage of the two
cannot in any circumstance be continued any further the marriage appears to be practically
dead.48

In Anita Kachaba v. K.R. Kachaba,49even though husband‟s allegations of cruelty against the
wife were not established yet divorce was granted to him one of the main factors that weighed
with the court was that the husband had married again and this according to the code was „a factor
sufficient to indicate that some other lady has walked into life of the respondent husband…under
these circumstances one can fairly reach to the conclusion that there is a irretrievable breakdown
of marriage of parties‟.50

Vinita Saxena v. Pankaj Pandit,51 was another case where the husband suffered from a mental
disorder, the marriage was not even consummated, it lasted for just 4-5 months with parties living
separate for 13 years and litigating, the court, under these circumstances held that “the wife was
entitled to be relieved from the shackles and Chains of the respondent husband and leave her own
life, if nothing else but like a human being” though the basis for the relief as mental cruelty the
court‟s observations clearly indicate the fact of breakdown as an important consideration for the
relief, and similarly in Varalakshmi charkha v. Satyanarayana charkha52where a wife was unable
to join her husband in the USA as she was suffering from bronchial asthma and due to very cold
weather in USA they were living apart, breakdown of marriage was inferred, however, where a

46
Pushplatha v. M. Venkateshwara, AIR 2010 (NOC) 709 (AP).
47
AIR 1996 SC 3192.
48
SnehPrabha v. Ravinder Kumar, (1996)1 HLR 280 (SC).
49
AIR 2003 Bom273 : (2003) 4 Bom CR 731.
50
Neelam Kumar v. Dayarani, AIR 2001 SC 1709.
51
AIR 2006 SC 1662 : (2006) 3 SCC 778.
52
Savitri Pandey v. Prem Chandra, (2002) 2 SCC 73.

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party is trying to take advantage of his or her own wrong and then trying to plead breakdown of
the marriage the court would not invoke its jurisdiction to dissolve the marriage, on this ground.53

6. CONCLUSION

If we moved in time a few decades back then we will see that the concept of divorce was an evil
to the society and was abhorred by one and all. After initiation of industrialization and
modernization of the society the concept of the marriage has changed its sacramental nature and
moved towards the contractual form of institution.

Once the English jurisprudence established that the marriage has more of a contractual aspect
then the next logical step was to discover the concept for the nullity of contract. As a person can
err to enter into a contract similarly a person can err to enter into marriage hence the evolution of
concept of divorce, dissolution of marriage and nullity of marriage.

There were a few prevalent theories of divorce like that of „fault theory‟ and „consent theory‟,
which dealt with the circumstances when there is a fault or guilt of one spouse the other can file a
petition for divorce and the circumstances where both the parties can take consensual divorce
respectively, on stage when the „breakdown theory‟ was introduced and since then the usage of
this theory has been ever increasing and never looked back.

Breakdown theory or also known as the „irretrievable breakdown theory of divorce‟ in its truest
sense means that when in a marriage the relationship between the spouses has been in so poor
condition that there is no chance of coming back in the maintenance of the society and comfort of
each other. When a marriage so badly broken down that there is no chance of repairing and
making it healthy then the court should grant divorce to the parties of the marriage.

Irretrievable breakdown of marriage can be either directly decided by the court depending upon
case to case or the legislation of the state can form certain guidelines on whose satisfaction the
court has no choice but to grant divorce to the parties. The theory of irretrievable breakdown have
been supported by the Indian court system a lot and there are lot of judicial precedent available
for the sake of the same and thus the upcoming cases has this facility of the getting judgments
faster.

Though primarily the grounds for the divorce were basically the fault based or consent based but
it can be observed that there is always an element of breakdown in each and every marriage
because a little wear and tear down is completely understandable but if the breakdown has went

53
Chetan Das v. Kamla Devi, AIR 2001 SC 1709.

13
to such extents the comeback is almost impossible then the court should not look into the faults of
the parties and should grant the divorce.

14