The dictionary meaning of Irretrievable is impossible to recover or recoup or overcome. “Irretrievable Marriage Breakdown” is when there is no reasonable prospect of reconciliation; that no matter what anyone tries, it’s done… finished… over; counseling will not help, discussion will not help, therapy will not help, a trial separation will not help, etc.
Legally speaking, “irretrievable breakdown of marriage” is defined as: “The situation that exists when either or both spouses are no longer able or willing to live with each other, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties.”
On March 23, 2012, the Union Cabinet approved the Marriage Laws (Amendment) Bill, 2010, by which “irretrievable breakdown of marriage” was included as a ground for dissolving a marriage under the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954. The proposal for including “irretrievable breakdown of marriage” as a ground for divorce was first made almost three decades ago in the Seventy-first Report of the Law Commission of India. As per the Report, “the Hindu marriage should be allowed to be dissolved if the husband and wife have lived apart for a period of say five to ten years and the marriage is irretrievably broken down due to incompatibility, clash of personality or similar other reasons, as is permissible under many systems of law of advanced countries.” Likewise, as per the current amendments, either party can present a petition for divorce under this new ground. Both parties however have to live apart for at least a period of three years before filing for divorce owing to irretrievable breakdown of marriage. According to the Cabinet note, a wife can oppose a husband’s plea for divorce under the new ground stating that the divorce would cause grave financial hardship. The husband, however, cannot oppose a wife’s plea for divorce under this ground.
Another area of concern has been whether the introduction of irretrievable breakdown as grounds for divorce would work against the interests of women, given the gender disparities and large number of women deserted by their husbands. It is in this context that the Supreme Court recently had the occasion to revisit the issue of irretrievable breakdown as grounds for divorce. Footnote (Vishnu Dutt Sharma versus Manju Sharma, 2009 (3) SCALE 425).
How Indian lawmakers can justify such blatant violation of constitution (right to equality) is beyond imagination. According to Art14 of the Constitution of India, every person is equal in the eyes of law. There is no discrimination on the basis of religion, race, caste, sex or place of birth. It does not discriminate between man and woman, and so woman should not be given any special consideration for opposing to husband’s plea for divorce.
Marriage is a social union of people. People get married for various legal, social, emotional, financial, spiritual, or religious reasons. Marriage can be solemnized under different customs and traditions. It can also be registered through various Acts like Hindu Marriage Act, 1955, Special Marriage Act, 1954, Parsi Marriage and Divorce Act, 1936 or The Indian Christian Marriage Act, 1872. When two people who feel that they can live together for the rest of their lives decide to tie the knot, they are bound to follow the customs and traditions of either of them to solemnize their marriage. And if they belong to same caste, then marriage can be solemnized with the rituals followed by the people of that community. Earlier people’s thinking was that when people are once married they are into a sacred relationship and they should not be separated even if they are not happy with their life.
But now people’s mindset has changed with the changing time. As girls are getting more educated and even there are changes in the society now dissolution of marriage is not considered as a proscribed. When two people who have been married have a reason for not staying together, they can appeal to the court for divorce. Divorce is the termination of marital union. After divorce the legal duties and responsibilities of the parties towards each other are cancelled. No longer have they had any relation of husband and wife.
Divorce can take place based on various grounds. Under Section 13 of the Hindu Marriage Act, there are various grounds such as adultery, cruelty, desertion and failure to maintain, conversion to another religion, incurable mental disorder, incurable mental disorder which may result in abnormally aggressive or irresponsible behavior, virulent and incurable leprosy, or communicable venereal disease not contracted from the party filing the application or renunciation of worldly life. A couple can also seek divorce by mutual consent when they feel that they cannot live together or do not want to live together.
New Zealand was the first country to accept the concept of “irretrievable breakdown of marriage” in The Divorce and Matrimonial Causes Amendment Act, 1920. Since then several countries have accepted it as a ground to seek divorce. In fact, in the United Kingdom, it is the only ground on which one can seek divorce. In India however, “irretrievable breakdown of marriage” had not been accepted as a ground for divorce under the Hindu law until now. The current grounds include, among other things, adultery, conversion to another religion, unsoundness of mind, a virulent and incurable form of leprosy, venereal disease in a communicable form, renouncement of the world, and not having been heard of as being alive for a period of seven years. The provisions for seeking divorce for cruelty and desertion were introduced only in 1974.
No court in the country except the Supreme Court can grant divorce on the ground of irretrievable breakdown of matrimonial relationship.
“This doctrine of irretrievable breakdown of marriage is not available even to the High Court’s which do not have powers similar to those exercised by the Supreme Court under Art 142 of the Constitution,” bench comprising former chief Justice Altamas Kabir and Justice Cyriac Joseph, allowing the appeal of a husband, noted.
In India, as per Hindu culture, tradition, customs and practices, marriage are considered to be made in heaven. Therefore marriages in India are considered to be the highest form of social relationship. It gives the person who is to live with us for whole life, to share our good and bad times, give us support any time we need and helps in developing our family. We need to respect not only the person but the institution of marriage as well.
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 break the system of marriages. Every theory has their own negative and positive traits. There applicability differs from situation to situation. Therefore, it is very essential that the law makers of our country should deal with the subject in a very cautious manner after considering in detail its future implications.
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