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BREAKDOWN
OF MARRIAGE
COMPILED BY: SUBMITTED TO:
Thank you
1
Dr. Paras Diwan, Modern Hindu Law, Allahabad Law Agency, Faridabad
2
www.legalserviceindia.com>break_marriage
3
www.supremecourtcases.com
4
www.lawoctopus.com
HISTORY
Irretrievable breakdown of Marriage Theory has a history that
shows its onset as a theory. As per the Law Commission
report, New Zealand was the first country in the world to
grant divorce on the basis of separation agreement of 3
years or more in 1920. In 1921, first divorce was granted in
New Zealand on the grounds of irretrievable breakdown.
This resulted in the making of irretrievable breakdown as a
theory 5 . In 1944 USSR adopted it. After this it was
introduced in England in Masariti v Masiriti case where
both the husband and wife accused each other of guilty. In
Australia it was introduced under the marital clause act
1956. After this it was introduced in many other countries
including the ones that were deeply entrenched into fault
theory. These countries used to follow two methods:
I. They used to keep on increasing the grounds for
divorce for e.g. Incompatibility of temperament was
also added as a ground for divorce.
II. They gave wide interpretation to these grounds for e.g.
In Gollins V Gollins case divorce was granted on
grounds of cruelty when a husband was financially
dependent on his wife and did not took up a job.6
5
https://blog.ipleaders.in
6
Dr. Paras Diwan, Modern Hindu Law, Allahabad Law Agency, Faridabad
7
https://indiankanoon.org
CASE LAWS
WILLIAMS V. WILLIAMS
Plaintiff, Alghia Williams, instituted a suit for divorce against
his wife, Heredia Harrell Williams, on the ground of adultery.
He filed another suit against his wife and Yolanda Williams,
seeking the disavowal of the said Yolanda Williams, who was
born during the alleged separation of plaintiff and his wife.
From judgments dismissing both suits, which were
consolidated for trial, plaintiff prosecutes this appeal.
In neither suit does the plaintiff allege the date or place of the
alleged adultery or the name of the co-respondent.
12
Narada, XII, 81; Parasara, X, 26-35.
13
Narada Smriti Ch XIII Verse 16,24,97,98 as referred to in Bhagbat N. Deshpanday. “Divorce and Hindu
Smritis”, AIR 1934 Jour 204 See also Krishna Nath Chatterjee, “Hindu Marriage Past and Present”, Tara
publications, Varanasi (1972) p 263.
LAW COMMISSION
REPORT
In the said Report, it is mentioned that restricting the ground
of divorce to a particular offence or matrimonial disability,
causes injustice 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 the parties to the marriage do not want to divulge
it, yet such a situation has arisen in which the marriage cannot
survive. The marriage has all the external appearances of
marriage, but none in reality. As is often put pithily, the
marriage is merely a shell out of which the substance is gone.
In such circumstances, it is stated, there is hardly any utility in
maintaining the marriage as a facade, when the emotional and
other bonds which are of the essence of marriage have
disappeared.
It is also mentioned in the Report that in case the marriage has
ceased to exist in substance and in reality, there is no reason
for denying divorce, then the parties alone can decide whether
their mutual relationship provides the fulfilment which they
19
Ibid. Ch. IX Verse 74.
20
G. Buhler, “The Laws of Manu”, Motilal Banarasi Das (1964).
CURRENT STATUS
The marriage law (amendment) bill 2013 was the latest effort
by the government to bring forward the concept of
irretrievable breakdown of marriage. It was only passed in
Rajya sabha and therefore was not successful.
The highlights of the bill are as follows:
p.243-263; M.A. Qureshi, ―Muslim Law of Marriage, Divorce and Maintenance‖, 1992, p.185-200; Dr. Paras
Diwan, ―Muslim Law in Modern India‖, 1stedn.1977, p.71-90; Mulla, ―Principles of Mahomedan Law‖,
19thedn.2003, p. 258-275; Tahir Mahmood, ―The Muslim Law of India‖, 3rdedn. 2002, p. 88-110.
22
AnamAbrol, ―Irretrievable Breakdown of Marriage as a Ground for Divorce‖ CULR 1988(12) at 71.
GOVERNMENT’S
VIEW POINT
The government of India, Ministry of education, Department
of Social welfare, has expressed the review that making
irretreivable breakdown of marriage a ground for a grant of a
decree of divorce is redundant in the light of the fact that
sufficient grounds covering “irretreivable breakdown of
marriage” exist in the Hindu Marriage Act,1955 and the
marriage laws amendment Act, 1976, for the purpose of
seeking divorced
WHY
IRRETRIEVABLE
BREAKDOWN ?
The term Irretrievable simply stands for that couple can no
more live together as husband and wife. Both the parties
involved must demonstrate that the marriage has broken down
so seriously that there is no sensible chance of getting back
together. The theoretical basis for including the irretrievable
breakdown of marriage as a ground for divorce is now
commonly known among lawyers and jurists. Restricting the
ground of divorce to a particular offence or matrimonial
disability causes injustice 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 the parties to the marriage do not wish to
divulge it, yet there has arisen a situation in which the
marriage cannot be worked; that is, where the marriage has all
external appearances 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 other
bounds which are the essence of marriage have disappeared.
After the marriage has ceased to exist in substance and in
ARGUMENTS
AGAINST
INTRODUCTION OF
IRRETRIEVABLE
BREAKDOWN OF
MARRIAGE
A law of divorce based mainly on fault is inadequate to deal
with a broken marriage. Under the fault theory, guilt has to be
proved; Courts are presented with concrete instances of
human behaviour which bring the institution of marriage into
disrepute. The irretrievable breakdown of marriage is not a
separate ground of divorce by itself. But while scrutinising the
evidence on record to determine whether the grounds on
CASE LAWS
RESPONDENT:
Kajal Kumar Ghosh
BENCH:
RESPONDENT:
Aneel Kaur
DATE OF JUDGMENT: 02/12/2004
BENCH:
RUMA PAL, ARIJIT PASAYAT & C.K.THAKKER
DATE OF JUDGMENT10/01/1994
BENCH:
KULDIP SINGH (J)
YOGESHWAR DAYAL (J)
JUDGMENT:
ORDER
1.We have heard the parties in person. Learned counsel for the
parties have also assisted us. It is not disputed that the parties
are living separately for the last more than three years. We
have no doubt in our mind that the marriage between the
parties has irretrievably broken down. There is no chance
whatsoever of their coming together. The parties have made
joint request.-for mutual divorce. The written request by the
parties has been Placed on the record. In order to do complete
justice between the parties, we are inclined to grant decree in
divorce on the following agreed terms:
"1. The respondent Kalyanram Narayanan gives in V.G.P.
Pushpa Nagar which is in the name of the petitioner Sandhya
Rani. The said plot measures 3200 sq. yds.;
2. Two-third share in the said plot shall go to Kartak Narain
son born out ofwedlock. The remaining 1/3 share shall be
owned by the petitioner Sandhya Rani;
3. The title deed in respect of.' the property has been handed
over to the petitioner Sandhya Rani; and
4.the petitioner Sandhya Rani shall not claim any maintenance
past or future, for herself or for her son Kartak Narain from
PETITIONER:
Naveen Kohli
RESPONDENT:
Neelu Kohli
BENCH:
B.N. AGRAWAL,A.K. MATHUR & DALVEER
BHANDARI