What Is Irretrievable Breakdown?

Introduction

The Irretrievable theory of breakdown is the most controversial theory in legal jurisprudence based on the principle that marriage is a union of two people based on love-affection and mutual respect. If all of these are affected by any of the factors (say cruelty, desertion, adultery, insanity, etc), and If the marriage relationship between the spouses reaches such an extent that it is absolutely irreparable that it is a point where neither of the spouses can live in peace with each other and gain the benefits of marriage relationships, then it is best to break the marriage, because now there is no point in continuing such a dead relationship which only exists in name and not in practice. In India, marriage according to long-established norms was considered sacramental in its totality. This sacred union was deemed to be inherently indissoluble and undying. However, this traditional view has been through a sea of change with the enactment of the Hindu Marriage Act, 1955 owing to the law ‘s recognition of neoteric concepts of divorce and judicial separation. Before the Hindu Marriage Act was enacted, divorce was not a recognized means of calling for an end to a marriage, the only exception being where it was recognized by custom, which meant that the rules of dissolution of marriage and monogamy were, to the contrary, subject to a valid custom. This Act has been through various changes while accommodating the different needs of society and it is to be understood in this scope that the concept of the Irretrievable breakdown of a marriage is. Irretrievable dissolution falls under the principle of breakdown theory, which also is a valid ground for divorce, where the marriage is assumed to have reached a point where there is a complete collapse of the relationship with no room for restoring the previously established bond. The irreparable nature of the situation gives rise to the alternative of offering the couple an option without bitterness and distress to leave each other’s company[1].

History of Irretrievable Breakdown of Marriage

In India, regarding the Hindu Marriage Act and the Special Marriage Act, the Government of India has attempted to include ‘Irretrievable Breakdown of Marriage’ as a divorce ground, as recommended by the Law Commission of India’s 71st Report[2]. The 71st report submitted by the Law Commission of India in 1978 deals with the concept of an Irretrievable Marriage Breakdown. The Report is based on the prima facie issue as to the degree and conditions under which the Hindu Marriage Act can provide an Irretrievable Dissolution of Marriage as a basis for divorce. The Law Commission noted in its report that the rule of limiting divorce to matrimonial disability results in discrimination in cases where no party is to blame or the fault is of such a nature that no party wishes to reveal it and yet the marriage has ceased to exist. In other words, the Irretrievable Breakdown of Marriage refers to a situation where emotional bonds, respect, etc. have disappeared, which is the very foundation of a marriage, and there remains only a facade in the name of marriage. The Law Commission mentions that where marriage has ceased to exist in substance as well as in fact, divorce must be taken as a remedy to avoid a difficult remedy. The terms of such a divorce should be mainly concerned with getting the parties and the children to recognize the new arrangement and hammer out a suitable framework for managing relationships in the face of changing circumstances, rather than finding faults during the divorce proceedings[3]. In the current scenario of India[4], In March 2012, the parliament passed the Marriage Laws (Amendment) Bill, 2010 with the introduction of Section 13C, 13D and 13E. Section 13C(1) allows for the use of an irretrievable dissolution of marriage as a new basis for divorce in addition to Section 13C(2), which requires the parties to have lived apart for 3 years or more before filing the petition.

Merits, Demerits and scope of the Irretrievable Breakdown of Marriage

The only validity of the theory as proposed by the jurists is that a marriage, which is regarded as a sacramental institution in practice, should be founded on the basis on which a sound marriage is founded which is harmony, compromise and mutual respect. If any of the marriage party isn’t ready to live with the other party the relationship won’t be a happy one. Stretching such a relationship will do no good to each other, rather it will develop hatred and frustration between the parties. Therefore it is important to end such a marriage to preserve the sanctity of marriage, to reduce the number of unhappy marriages and to prevent the precious years of the life of the spouses from being wasted. As there is no reasonable way for a partner to be persuaded to resume life with the consort, nothing is achieved by attempting to keep the parties bound to a marriage that has already ceased to be leaving. Marriage in the home is a lifelong cohabitation. The legal bond will be broken until the possibility of future cohabitation has ceased. Also, The Government of India, Department of Social Welfare, has stated that making an irretrievable breakdown of marriage a ground for granting a divorce decree is redundant in view of the fact that there are sufficient grounds for ‘irretrievable breakdown of marriage’ in the Hindu Marriage Act and the Marriage Laws Amendment Act, 1976, for divorce seeking[5].

Also Read – Irretrievable Breakdown Theory

Conclusion

The nature of marriage is a sharing of common life, a sharing of all the pleasure that life has to bring, and all the suffering that has to be met in life, an understanding of the joy that comes from loving the matter and the spirit in common things, and showering the offspring with love and affection. Living together is a symbol for all aspects of such sharing. Living apart is a symbol which indicates that such sharing is negated. It is indicative of a ‘breakdown’ disturbance of the essence of marriage and if it persists for a fairly long period it will imply loss of the essence of marriage-‘irretrievable breakdown’.” Divorce in India is given either by mutual consent or by marital misconduct. However, we have stepped toward the paradigm of no-fault theory with the implementation of this idea of irretrievable breakdown. This amendment gives individuals the opportunity to take advantage of their own mistake, as even the erring party can cite this ground for a petition for divorce. It could thus promote divorce rates whereby women are prey to scrupulous husbands who can use the amendment to their advantage. It should be noted, however, that an irretrievable breakdown of a marriage is a concept that needs to be judicially recognized. Due to the obvious present understanding of marriage, which is part of the sacrament and part of the contract, it must be understood that a marriage that does not work and lacks any substance is better off being broken. There have been countless rulings for decades that reinforced the need for this definition and, having finally been enacted, this amendment comes as a blessing to many couples trapped in a fractured marriage without any redress.

References

[1]Kusum, Family Law Lectures (2nd Edn., LexisNexis Butterworths, 2007)

[2]71st Law Commission report on The Hindu Marriage Act, 1955- Irretrievable Breakdown of Marriage as a ground of Divorce.

[3]https://blog.ipleaders.in/irretrievable-breakdown-marriage-history-applicability-current-status-india/

[4]Paras Diwan, Marriage and Divorce Law Reforms [ The Marriage Laws (Amendment) Act, 1976] (1977) 2 SCC (Jour) 1

[5]http://www.legalserviceindia.com/articles/irrbdom.htm

This article Written by Akshaya Chintala, Second-Year, B.A. LL.B student of  Symbiosis Law School, Hyderabad.

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