INTRODUCTION

Before the commencement of the Hindu Marriage Act, 1955 the system of divorce was unknown for
Hindus. A Hindu marriage was an indissoluble tie between the husband and the wife. Hindus believed
marriage a sacrament, a holy union forever. Owing to strong influence of Islam during Moghul rule and
that of Christianity during British rule as well with the change of social circumstances with more and
more education among girls, the need to necessitate divorce was felt under Hindu law too. The Native
Coverts Marriage Dissolution Act, 1866 permitted divorce by Hindus, who were converted into
Christian faith. Some more Acts like Hindu Divorce Act, 1947 and Hindu (Bigamy Prevention and
Divorce) Act were also permitted divorce among Hindus but applicable to Bombay and Madras
Provinces respectively. The Hindu Marriage Act came into force on May 18, 1955 and it was applicable
to all those Hindus who are domiciled in India including those outside the territories of India but
domiciled in it.

The Word “divorce” has been derived from the Latin word divortium which means diverse. In an
ordinarily implication it was understood as divorce is nothing neither more nor less than any other name
for dissolution of marriage. Divorce in common verbal communication means the termination of
marriage by legal formalities. That is divorce puts the marriage to an end, and the parties revert to their
unmarried status and are once again open to marry. Thus Divorce is the legal separation of two spouses
by bringing an end of the vows that they took during the sacred ceremony of marriage. Divorce would
ruin the marriage life eternally and it is also difficult for children to cope with separation of their
parents.

Section 13 of the Hindu Marriage Act, 1955 has introduced an innovative amendment to the shastric
Hindu law. It provides for the dissolution of marriage. But it does not take place unless it has been
granted by a Court. The provisions regarding divorce have been amended twice since the passing of the
Hindu Marriage Act, 1955; i) by the Hindu Marriage (Amendment) Act, 1964 and ii) by the Marriage
Laws (Amendment) Act, 19767. The original provisions of the Hindu Marriage Act, 1955 regarding
divorce have been liberalized by the Marriage Laws (Amendment) Act, 1976. It also added a new
ground namely divorce by mutual consent of the parties has been made available as a matrimonial relief
under the Hindu Marriage Act, 1955. Either husband or wife may file an application before the court
praying to dissolve their marriage by granting decree of divorce, on any one or more grounds mentioned
here under. That the other party has voluntary sexual intercourse with any person other than his or her
spouse. After the marriage the respondent treated the petitioner with cruelty. The respondent deserted
the petitioner continuously for a period of two years or more preceding the presentation of the petition.
The respondent converted to another religion from Hindu religion. The respondent has been suffering
from mental disorder endlessly due to incurable of unsound mind and it cannot be possible to lead
marital life with the respondent. The respondent has been suffering from a virulent and incurable form
of leprosy. The respondent has been suffering from venereal disease, which is a communicable form.
The respondent renounced the world by entering any religious order. The respondent has not been heard
of as being alive for a period of seven years or more. After passing of decree for judicial separation in
the proceeding, there has been no resumption of cohabitation between the parties to the marriage for a
period of one year or more, either party to a marriage may also file a petition for dissolution of his/her
marriage. After passing of decree for restitution of conjugal rights in a proceeding, there has been no
restitution of conjugal rights between the parties to the marriage for a period of one year or more, either
party to a marriage may file a petition for dissolution of his/her marriage. A wife may also present a
petition for the dissolution of her marriage by a decree of divorce on the ground that her husband already
married another woman and the said person is alive at the time of presentation of the application. A wife
also may file a petition for dissolution of her marriage that her husband has been guilty of rape, sodomy
or bestiality. After passing of decree against the husband by granting maintenance to the wife under
Section 18 of the Hindu Adoption and Maintenance Act, 1956 or under Section 125 of the Code of
Criminal Procedure, there was no cohabitation between the parties for a period of one year or more, the
wife is entitled to file application for dissolution of her marriage.22 If the marriage is performed below
the age of 15 years, which was consummated or not, and she has repudiated the marriage after attaining
the age but before attaining the age of eighteen years, she can file petition for dissolution of her
marriage.
Grounds for Divorce Under Hindu Marriage Act:-
It is conceded in all jurisdictions that public policy, good morals & the interests of society require that
marital relation should be surrounded with every safeguard and its severance be allowed only in the
manner and for the cause specified by law. Divorce is not favored or encouraged, and is permitted only
for grave reasons.

In the modern Hindu law, all the three theories of divorce are recognized & divorce can be obtained on
the basis of any one of them. The Hindu Marriage Act, 1955 originally, based divorce on the fault
theory, and enshrined nine fault grounds in Section 13(1) on which either the husband or wife could sue
for divorce, and two fault grounds in section 13(2) on which wife alone could seek divorce. In 1964, by
an amendment, certain clauses of Section 13(1) were amended in the form of Section 13(1A), thus
recognizing two grounds of breakdown of marriage. The 1976 amendment Act inserted two additional
fault grounds of divorce for wife & a new section 13B for divorce by mutual consent.

The various grounds on which a decree of divorce can be obtained are as follows-

1.ADULTERY
Voluntary sexual intercourse with any person other than his/her
spouse. Though initially a divorce could be granted only if such spouse was living
in adultery, by the Marriage Laws Amendment Act, 1976, even a single voluntary
sexual act, with any other person other than the spouse is a sufficient ground for
divorce. But the present position under the Hindu Marriage Act is that it considers
even the single act of adultery enough for the decree of divorce1. The intercourse
with the wives of pre Act polygamous marriage will not amount to adultery. To
establish this ground in the court, circumstantial evidence will suffice2. Under sec.
497 of the Indian Penal Code, the adultery has been made an offence. In both the
criminal law as well as the matrimonial law, it is essential that at the time of
offence a valid marriage was subsisting. There should be consent of the
respondent to constitute the ground of adultery. The burden of proof is on the
petitioner.

2. CRUELTY
Initially cruelty was a ground only for judicial separation, but now
forms a ground for divorce under the Amendment Act of 1976. The concept of
.
1
ViraReddy v. Kistamma, 1969 Mad .235; Subbarma v. Saraswathi, (1966) 2 MLJ 263.
2
Sanjukta v. Laxmi, 1991 Ori. 39.
 cruelty has changed from time to time and from society to society. In the early
English law, the intention was needed to prove the element of cruelty. But
subsequently, it was omitted to be regarded as the ground for cruelty. Under the
Hindu Marriage Act also, intension has not been regarded as the ingredient of
cruelty. There is no precise definition of cruelty. The acts or conducts constituting
cruelty be so numerous that it is impossible to fit them into any watertight
compartment. In Bhagwat v. Bhagwat3, the conduct of the husband to strangulate. The wife’s
younger brother and her younger son has been recognized as an act of
cruelty. In A. Jaya Chandra v. Aneel Kaur4, the Supreme Court has held that the
cruelty should be in reference to the human conduct or behaviour. The conduct
should be of such nature that it can be concluded that the petitioner spouse can not
be expected to live with the other spouse. In the Indian law, like the English law,
it has been held that the cruelty must be pointed towards the petitioner. It has also
been held that if the wife is being illtreated by the members of the family in front
of the husband and he looks idly, it amounts to be the willful neglect, and thus
amounts to cruelty5. Both mental cruelty as well as the mental cruelty has been
recognized as the grounder under the Act. The acts of physical violence, injury to
the limb or the health of the spouse, by the other spouse and even apprehension of
the same amounts to the cruelty6. In the cases of mental cruelty, court has to back
“intensity, gravity and stigmatic impact” of cruel treatment, even if such cruel
treatment is meted out once7. While arriving at such conclusion, regard must be
had to the social status educational level of the parties, the society they move in,
the possibility or otherwise of the parties never living together in case they are
living apart and all other relevant facts and circumstances, which it is neither
possible or desirable to set out exhaustively. In Praveen Mehta v. Inderjeet
Mehta8, the court defined has defined mental cruelty as the state of mind.

3. DESERTION
This has been added as a ground for divorce by the Amendment
Act, though previously it was a ground for judicial separation. It includes the
.

3
1976 Bom. 18; Neetu Koeen v. Naveen Kohli, AIR 2004 All 1.
42005 SC 534.
5
Sunder v. Shantadevi, 1962 Ori 60.
6
Kausalya v. Wisakhiram1961 Punj 520; Sayal v. Sarla 1961 Punj 125; Saptmi v. Jagdish (1969) 87 CWN
520.
7
Vijay Kumar Ram Chandra Bhate v. Neela Bhate, AIR 2003, SC 2642.
8
2002 SC 2582.
 desertion of the petitioner by the other spouse, without any reasonable cause and
without the consent of that other spouse. Without previous cohabitation, there can
not be any desertion9. It is not merely the withdrawal from a place but also, from
the state of things. Under the Hindu Marriage Act, desertion fall under following
heads:
• Actual desertion
• Constructive desertion &
•Willful neglect

4. CONVERSION

In order to obtain a divorce on this ground it should be proved

that such other party has converted. Mere professing or theoretical allegiance to
any other religion does not mean conversion. This ground has been added to the
act for obtaining divorce, as according to the Hindu Law, a marriage is not
dissolved by conversion by one of the parties. Therefore contrary to the belief that
conversion by itself resulted in divorce, a person now has to obtain a decree of
divorce under the Act.

5. UNSOUNDNESS OF MIND
Initially it was essential for a party to prove that his/her spouse was incurably of unsound mind
for a continuous period of three years. However now this duration has been omitted. In order to
obtain a decree under this ground it has to be proved that the spouse is affected to such an extent
that the party seeking divorce cannot be reasonably expected to live with him/her.
After the amendment of 1976 (Marriage Laws Amendment Act) the ground of
cruelty was not only accepted but also explained in the Act. It considers two
distinct mental elements namely: (1) unsoundness of mind and (2) mental
disorder.

6. VIRULENT AND INCURABLE LEPROSY.

The amendment act of 1976 lays down that the leprosy must be both virulent and
incurable10.

7. VENEREAL DISEASES IN COMMUNICABLE FORM.

At present, it is a ground for divorce if it is communicable by mature irrespective of the period
for which the respondent has suffered from it.
.
9 Savitri Pandey v. Premchand Pandey, 2002 SC 591.

10 Swarajya Lakshmi v. Padma Rao, AIR 1974 SC 165.

8. ENTERING NEW RELIGIOUS ORDER:
By renouncing the world. This requires the performance of certain ceremonies and the
observance of certain formalities. The petitioner has to prove that the other spouse has ceased to
be a Hindu. The conversion does not automatically dissolve the marriage. It provides a
ground for divorce11.

9. PRESUMPTION OF DEATH:
Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for
a period of at least seven years. The decree obtained under the Hindu Marriage Act would not be
a decree of death of the missing spouse, it would be only of the presumption of death, under
sec.8 of the Indian EvidenceAct,1872.

10. SCHIZOPHRENIA
The word "schizophrenia" is derived from Greek word which means "split mind". The sufferers
do not in fact have any "split personality". Generally they undergo a gradual or sudden breaking
down of the barriers between fantasy and reality. The thoughts of such sufferer are muddled and
distorted. In some cases he suffers hallucination. A schizophrenic's delusions often lead him to
believe that he is being persecuted. Many sufferers sleep a great deal and neglect their
appearance in public. They develop odd and obsessive habits. No one knows the real cause of
schizophrenia. Many researchers believe that there is a genetic component. A person with a
family history of schizophrenia is susceptible to it. It is common in the age group of 15-30 years.
Thereafter women sufferers are a little higher than the male sufferers. In India it is estimated that
there are nine million sufferers of this disease. But it is found that about one-third of such
sufferers recover fully; another one-third are able to lead near normal lives with the help of anti-
psychotic drugs in tablets or injection form. Most of the remainder can lead ordinary lives only
with medication and occasional hospitalization. The symptoms of this illness were recognized by
Indian doctors about 2,000 years ago.

11.Non-compliance with a decree of judicial separation

By sub-sec. (IA) of s.13 either spouse may present a petition for divorce on the ground that there
has not been any resumption of cohabitation of the parties to the marriage for a period not less
than one year after the passing of a decree for judicial separation. Resumption of cohabitation
means living together in conjugal relationship. But this means is narrow and as such it should not
be applied to all cases irrespective of their special and surrounding circumstances. The meaning
of this expression therefore depends upon the intention of the parties, and there may be
resumption of cohabitation even where the parties do not live under the same roof of matrimonial
.
11 Lily Thomas v. Union of India, and others., AIR 2000 SC 1650
 home. If there is sexual intercourse of the parties to the marriage, it is no doubt a good ground to
presume the resumption of cohabitation, but that is not the conclusive evidence for this purpose.
The birth of a child from an isolated act of sexual intercourse does not mean resumption of
cohabitation. There may be resumption of cohabitation without having sexual intercourse. The
court will grant a decree for divorce on the ground provided in sub¬ sec. (1A) of s.13 in the
absence of any bar laid down in s. 23 of the Act. In a proceeding for divorce, a decree of judicial
separation cannot be challenged on the ground of lack of jurisdiction of the court in the previous
proceedings.

12.Non-compliance with a decree of restitution of conjugal rights

Under class (ii) of sub-sec. (1A) of s. 13 either party to the marriage may present a petition for
divorce on the ground that there has been no resumption of conjugal rights for a period of not
less than one year after the passing of a decree to that effect. The court before granting a decree
for divorce on this ground may be satisfied that the petitioner is not disentitled to this right by
reason of any bar laid down in s. 23 of the Act. After a decree for restitution of conjugal rights
obtained by the wife under s.9 of the Act the husband is not entitled to the relief under s. 13( lA)
of the Act if he fails to comply with the decree and also acts positively by ill-treating her and
driving her away from the house.19 There are, however, conflicting decisions on the question of
application of s. 23(1 )(a) of the Act. The Punjab High Court, the Mysore High Court and the
Bombay High Court' were of the opinion that the petitioner in divorce proceedings cannot take
the advantage of his or her own wrong for the purpose of this relief by non-compliance with the
decree of restitution of conjugal rights. But the FuIl Bench of the Delhi High Court is of the
opinion that non-compliance with the decree for restitution of conjugal rights by the husband
would not constitute 'wrong' within the meaning of s. 23(1)(a) of the Act. It is submitted that the
plain wordings of s. 13(1A) have made no distinction between the parties to the marriage and
hence any contrary holding would impute super added idea in the intention of the Legislature
making the amendment for insertion of sub-sec. (1A) of s. 13 of the Act. Further, where the
language is plain and simple without any ambiguity, s. 13(1)(a) should not restrict and control
the application of s. 13(1A) of the Act. In a case where a consent decree for restitution of
conjugal rights was passed, it would form the basis for divorce for non-compliance. It is to be
noted that if a decree for restitution of conjugal rights is complied with, there is no scope for a
petition of divorce.

AIl the controversies on this issue have come to rest on the decision of Saroj Rani v Sudarshan
Kumar12, where it has been held that after a decree for restitution of conjugal rights the husband
is entitled for a decree of divorce under s. 13 of the Act and his failure to resume cohabitation
would not amount to "wrong" within the meaning of s. 23(1) (a) of the Act. But where the
.
12
Saroj Rani v Sudarshan Kumar, AIR1984 SC1562
husband has obtained a decree for restitution of conjugal rights, only for the purpose of seeking a
divorce under s. 13(1 A)(ii) of the Act and preventing the wife from performing her conjugal
duties by driving her away from the house, this constituted misconduct under s. 23(1)(a) of the
Act as the husband was taking advantage of his own wrong and hence he was not entitled to any
relief under s. 13(1A) of the Act.6a.
Wife’s Special Grounds For Divorce:-
Besides the grounds enumerated above, a wife has been provided four additional grounds of divorce
under Section 13(2) of the Hindu Marriage Act, 1955. These are as follows-

1. Pre-Act Polygamous Marriage

If the husband has more than one wife living after the commencement of this Act, a wife may
present a petition for divorce under cl. (i) of sub-sec. (2) of s. 13 of the Act. Only limitation on
the right of a wife who applies for divorce under this provision is that the other wife should be
alive at the time of presentation of the petition irrespective of findings that the petitioner was
aware of existence of the other wife and that the husband was not guilty of cruelty. Delay as
leading to an inference of condonation of or connivance or indifference to matrimonial wrong
is not an appropriate consideration for cases under s. 13(2)(i) of the Act. The right of divorce
given to the first wife by s.13(2)(i) does not depend on her conduct prior to the commencement
of the Act. The existence of the first wife at the time of performance of the second marriage
need not be established by direct evidence and that fact may be inferred from other facts
proved in the case.

2. Rape, Sodomy Or Bestiality

Under s. 13(2)(ii) of the Act a wife is entitled to petition for divorce on the ground of rape,
sodomy or bestiality committed on her by the husband. Rape is also a criminal offence and
defined in s. 375 of the Indian Penal Code. A man is said to commit rape who has sexual
intercourse with a woman against her will, without her consent, with her consent which is
obtained by putting her in fear of death or of hurt, with her consent when the man knows that
he is not her husband and that her consent is given because she believes that he is another man
to whom she is or believes herself to be lawfully married, or with or without her consent when
she is under sixteen years of age. Penetration is sufficient to constitute the sexual intercourse
necessary to the offence of rape. There is however one exception. No rape is committed by the
husband on the wife if she is over fifteen years of age. Sodomy is committed by a person who
has carnal copulation with a member of the same sex or with an animal, or has non-coital
carnal copulation with a member of the opposite sex. Bestiality means sexual union by a
human being against the order of nature with an animal. The commission of these offence by
the husband must be proved by the wife either by witnesses as to fact or by evidence of
admission made by the respondent, such as a plea of guilty of his trial. Though these are
criminal offences, but mere evidence of conviction for these offences is not sufficient to obtain
a decree for divorce. In divorce proceedings these offences are required to be proved b the wife
de novo. Where the wife is a consenting party to the commission of any of these offences, her
evidence should not be accepted without corroboration.
3. Non-Resumption Of Cohabitation After A Decree/Order Of Maintenance

If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.P.C., 1973
or a decree under Section 18, Hindu Adoption & Maintenance Act, 1956 & cohabitation has
not been resumed between parties after one year or upwards, then this is a valid ground for
suing for divorce.

4. Repudiation Of Marriage

Wife is entitled to present a petition for divorce if her marriage was solemnized before her
attainment of the age of fifteen years provided she has repudiated the marriage after attaining
the age of fifteen years but before attaining the age of eighteen years. But the petition may be
presented after completing eighteen years of age.13 In absence of a school certificate, the
parents are the best witnesses of the fact of the date of birth of their children. Entries in a
horoscope can be used to prove the date of birth and also by examining the person who wrote
it.
Theories of Divorce:-
Following are the major theories of divorce:

Indissolubility of Marriage Theory:-

According to this theory marriage is an unbreakable tie between husband and wife. It is a union of bone
with bone and flesh with flesh. It is eternal. Even if the relations between the parties are unhappy, they
have to live and die with it. This is the theory of the shastric Hindu Law.4 The marriage could be
dissolved neither by the act of the parties nor by the death of one of them. Divorce was an anathema.
However, this was the law for the regenerate castes, the so called upper three castes. The shudras and
tribes recognised divorce and had their customs relating there to. The Hindu marriage Act abandoned the
shastric position. Marriage is no more unbreakable rope even for the regenerate caste. If the necessary
conditions as given under section 13 and 13B exist, every Hindu is entitled to the dissolution of his or
her marriage. The Hindu Marriage Act5 is indeed a revolutionary piece of legislation from this point of
view.

Divorce at Will Theory:-

According to this discreditable theory one can divorce one‘s spouse whenever one pleases. Marriage is
more difficult than divorce here, whereas the case should be just the opposite. This theory is recognised
by the Mohammedan law6. A Muslim husband of sound mind may divorce his wife whenever he so
desires without assigning any ground therefore7. He need not seek the assistance or intermeddling of a
judicial officer or of the counsel of his community. Although the Mohammedan Law favours the
husband only in 116 this matter, yet we can imagine a rule which gives the right to dissolve marriage at
will to both the parties. Both the theories, that marriage is unbreakable and that marriage subsists during
the pleasure of one or any of the parties thereto, touch the opposite extremes. They are alike in one
respect that both are unreasonable and unjust. The first compels a spouse to bear the yoke of even
torturous marriage also. The second makes marriage a play thing of the party entitled to proclaim
divorce at will. In the first case the lawmaker has arbitrarily made marriage a prison. Marriage is for
making a loving home, not a rigorous imprisonment, and there should be an escape from strained
relation. In the second case, a party may dissolve marriage arbitrarily disregarding the sentiments,
services, helplessness and above all, the innocence of the other party. As the shastric Hindu Law had
faith in the first theory8, the question of second theory did not arise. The customary Hindu Law which
recognized divorce among the so called low communities also did not recognised divorce at the pleasure
of any party o the marriage. The Hindu Marriage Act gives no room to the second theory.

Fault/guilt/offence Theory:-

The guilt or offence theory of divorce is essentially a 19th century concept where the society abhorred
divorce as an evil, as devil‘s mischief, and therefore that society could agree for divorce only on that
basis that one of the parties has committed some sin, some very heinous offence against marriage. As a
corollary to the guilt of one party, the other party was required to be totally innocent.10 According to
this theory, if a party commits a matrimonial offence the aggrieved party may seek divorce form the
delinquent spouse. It is only the matrimonial offence 117 which is a ground of divorce. No criminal
offence, howsoever heinous, is a ground for divorce. Traditionally, adultery, desertion and cruelty are
considered as matrimonial offences. But this should be treated only as an illustrative list. Rapes,
sodomy, bestiality, refusal to obey the order of a court to pay maintenance to the wife, marring an
underage person, are also examples of matrimonial offences. If the respondent is not guilty of any of
these offences, divorce cannot be granted against him even if he has committed the offence of murder,
dacoity, cheating, theft, treason, smuggling, black marketing or bribery etc. hence what matters for
divorce is the person injury to the marital relations of the other spouse and not the injury dine to any
other person(s) in the society. A fault divorce is usually chosen by a spouse who wishes to be vindicated
by proving the other's fault. In some states, the spouse who proves the other's fault may receive a greater
share of the marital property or more alimony.11 The offence theory stipulates for two things: (i) a
guilty party, i.e., the party who has committed one of the specified matrimonial offences, and (ii) an
innocent party, who has been outraged and who has played no role in the criminality or the matrimonial
offence of the other party. If the purpose of the divorce law was the punishment of the guilty party, then
it was natural to lay down that the other party should have no complicity in the guilt of the offending
party. If the petitioner‘s hands are not clean, he cannot seek relief12. It is a different matter that the
English courts took this principle to its logical end. This dichotomy of matrimonial offence and
innocence led not merely to the evolution of matrimonial offences but also to the matrimonial bars. Such
are the notions of matrimonial offence and matrimonial innocence that the burden of proof of both is on
the party who seeks relief. English law classified these bars to matrimonial relief into discretionary bars
and absolute bars. The existence of the absolute bar was fatal to the matrimonial petition, while in the
case of discretionary bars, the court had discretion and it might exercise in 118 favour of the petitioner,
or it might refuse to do so. Under Indian law all bars are absolute bars. The guilt theory, on the one
hand, implies, a guilty party, i.e., commission of matrimonial offence on the part of one of the parties to
the marriage, and, on the other hand, it implies that the other party is innocent, i.e., in no way a party to,
or responsible for, the offence of the guilty party. This principle was taken very far in English law; so
much so that if both the parties, independently of each other, committed matrimonial offence the
marriage could not be dissolved. For instance, if a petition is presented on the ground of respondent‘s
adultery and it is established that the petitioner is also guilty of adultery, then the petitioner cannot be
allowed divorce. This is known as the doctrine of recrimination. One of the Chief Justice of England
caustically remarked; ―Perhaps it is not vouchsafed to everybody, whether in Holy Orders or out of
them, to appreciate the full beauty of the doctrine that if one of the two married persons is guilty of
misconduct there may properly be divorce, while if both are guilty they must continue to abide in the
holy state of matrimony.‖ English law has now abandoned this position. Since the guilt theory requires
that the petitioner should be innocent, the English law evolved the doctrine of matrimonial bars,
discretionary bars and absolute bars. This means that even if a petitioner is able to establish a ground of
divorce to the satisfaction of the court, he may not get divorce if one of the matrimonial bars13 is proved
against him.
Irretrievable Breakdown Of Marriage:-
Irrespective of the three remedies available to parties that is: restitution of conjugal rights, judicial
separation and divorce, the judiciary in India is demanding irretrievable breakdown of marriage as a
special ground for divorce, as sometimes courts face some difficulties in granting the decree of divorce
due to some of the technical loopholes in the existing theories of divorce. Both the Supreme Court and
Law Committee consider the implementation of such a theory as a boon to parties who for one or the
other reasons are unable to seek the decree of divorce. Therefore in the opinion of the Supreme Court
and Law Commission of India, it is very essential to make it a special and separate ground mission that
introduction of irretrievable breakdown of marriage, as a special ground will do any public good.

The Irretrievable breakdown theory of divorce is the fourth and the most controversial theory in legal
jurisprudence, based on the principle that marriage is a union of two persons based on love affection and
respect for each other. If any of these is hampered due to any reason and if the matrimonial relation
between the spouses reaches to such an extent from where it becomes completely irreparable, that is a
point where neither of the spouse can live peacefully with each other and acquire the benefits of a
matrimonial relations, than it is better to dissolve the marriage as now there is no point of stretching
such a dead relationship, which exist only in name and not in reality.

The breakdown of relationship is presumed de facto. The fact that parties to marriage are living
separately for reasonably longer period of time (say two or three years), with any reasonable cause (like
cruelty, adultery, desertion) or even without any reasonable cause (which shows the unwillingness of the
parties or even of one of the party to live together) and all their attempts to reunite failed, it will be
presumed by law that relationship is dead now.

Recently the Supreme Court Naveen Kohli v. Neelu Kohli13 has recommended an amendment to the
Hindu Marriage Act, whereby either spouse can cite irretrievable breakdown of marriage as a reason to
seek divorce. Expressing the concern that divorce could not be granted in number of cases where
marriages were virtually dead due to the absence of the provision of irretrievable breakdown, the court
strongly advocated incorporating this concept in the law in view of the change of circumstances.

13
Naveen Kohli v. Neelu Kohli AIR 2006 SC 1675.
The Court observed that public interest demands that the married status should, as far as possible, as
long as possible and whenever possible, be maintained. However, where a marriage has been wrecked
beyond any hope of being repaired, public interest requires the recognition of the fact. The judgment
notes that there is no acceptable way in which a spouse can be compelled to resume life with the consort
and that situations causing misery should not be allowed to continue indefinitely as law has a
responsibility to adequately respond to the needs of the society. The profound reasoning is that in
situations when there is absolutely no chance to live again jointly or when it is beyond repair, in such a
case it would be futile to keep the marital tie alive. Here the ground of irretrievable breakdown is really
needed. But it should not be oblivious that the ground, when introduced, needs to provide safeguards to
ensure that no party is exploited.
Merits &Demerits:-

Merits
The only merit of the theory as has been propounded by the jurists is that a marriage, which in practice
is considered to be sacramental institution, should be based on grounds on which a sound marriage is
built- that is tolerance, adjustment and respecting each other. If any of the party to marriage is not ready
to live with the other party the relationship will not be a happy relationship. Stretching such a
relationship will do no good, rather will develop hatred and frustration among the parties for each other.
Therefore to protect the sanctity of marriage, to reduce the number of unhappy marriages and to prevent
from getting wasted the precious years of life of the spouses, it is necessary to dissolve such a marriage.

Demerits
The Law Commission Of India in Chapter 4 of the 71st report has dealt in detail the demerits of the
irretrievable breakdown theory. The two main oppositions discussed in the report are as follows:

(i) It will make divorce easy. It will allow the spouses or even to any one of the spouses to dissolve the
marriage out of their own pleasure.

(ii) It will allow the guilty spouse to take the advantage of his own fault by getting separated and
dissolving the marriage.

***************************
 Conclusion

Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of 1955, there was no
provision for divorce. The concept of getting divorced was too radical for the Indian society then. The
wives were the silent victims of such a rigid system. However, time has changed; situations have
changed; social ladder has turned. Now the law provides for a way to get out of an unpleasant marriage
by seeking divorce in a court of law. The actual benefactors of such a provision are women who no
longer have to silently endure the harassment or injustice caused to them by their husbands. But the
manner in which the judiciary is dealing with the subject of irretrievable break down of marriage, it is
feared that it will completely pause the system of marriages.
 BIBLIOGRAPHY

 https://www.lawctopus.com/academike/divorce-under-hindu-law/

 http://lawrato.com/divorce-legal-advice/procedure-and-grounds-for-divorce-when-couple-

not-living-together-955

 http://www.legalserviceindia.com/helpline/grounds_for_divorce.htm

ACKNOWLEDGEMENTS
I would like to take this opportunity to express my deep sense of gratitude towards my course teacher,
Mr. Pravesh Dalei for giving me constant guidance and encouragement throughout the course of the
project.

I would also like to thank the University for providing me the internet and library facilities which were
indispensable for getting relevant content on the subject, as well as subscriptions to online databases and
journals, which were instrumental in writing relevant text.

Special thanks goes out to my seniors who have been relentless in their help and supporting providing
any material whenever required and my colleagues, who always stood by me, irrespective of the
decisions taken by me. Without their support this project would not have seen the light of the day.

RAJ SAHU

B.A.LL.B.2nd sem.

DECLARATION
I, Raj Sahu, B.A.LL.B Semester-II of Guru Ghasidas University do hereby declare that, this project is
my original work and I have not copied this project or any part there of from any source without due
acknowledgement . I am highly indebted the articles and the owners of the information taken from
website for it.

RAJ SAHU

B.A.LL.B, Semester-II

CERTIFICATE
This is to certify that Raj Sahu of class B.A.LL.B 2nd sem. Studying in School of law, Guru Ghasidas
University has completed his project file under my supervision .He has taken proper care and show
utmost sincerity in the completion of this project. I certify that this project is giving up to my
expectation and as per the guidelines issued by CBSE.

Mr. Pravesh Dalei.

Signature .

CONTENTS
1. Introduction.

2. Grounds for Divorce Under Hindu Marriage Act.

3. Wife’s Special Grounds For Divorce.

4. Theories of Divorce.

5. Irretrievable Breakdown Of Marriage.

6. Merits & Demerits.

7. Conclusion.

8. Bibliography.