Legal Aspects Of The Irretrievable Breakdown Of Marriage

Marital relations are matters of a highly delicate and fragile nature. They require mutual trust, respect, appreciation, affection and friendship, with sufficient room for reasonable adjustment between the partners. The marital relationship between two people also has to be balanced against social expectations. Marriage forms the very foundation of social organisation. Traditional Hindu law treated marriage as a sacrament that was indissoluble and permanent, and this sacred character of marriage gave rise to certain hardships.

In particular, traditional Hindu law placed the wife at a disadvantage. To address such inequalities between spouses, while still protecting the institution of marriage, the Hindu Marriage Act, 1955 was enacted, providing certain matrimonial remedies.

Marriage is the foundation of the family, without which no real progress in society is possible. A marriage solemnised, whether before or after the commencement of the Hindu Marriage Act, 1955, can be dissolved by a decree of divorce only on one of the grounds specified in Section 13 of the Act. Unless and until a Hindu marriage is dissolved in accordance with the provisions of the Act, neither spouse can lawfully remarry. It is therefore clear from the various provisions of the Act that modern Hindu law strictly upholds monogamy.

The term “irretrievable” simply means that the couple can no longer live together as husband and wife. It must be shown that the marriage has broken down so completely that there is no reasonable chance of the parties reconciling.

As things stand, there is still no separate statutory law that recognises irretrievable breakdown of marriage as a ground for divorce. The Hindu Marriage Act sets out a fixed list of grounds for divorce in Section 13. However, with changing social attitudes and the changing nature of marriage in society, the Supreme Court has repeatedly expressed concern about the absence of irretrievable breakdown as a ground for divorce.

In a number of cases, the Supreme Court — acting to do complete justice and to shorten the suffering of parties trapped in long-drawn litigation — has dissolved marriages that had broken down beyond repair. These were exercises of its extraordinary power, because the Hindu Marriage Act, 1955 itself does not provide for divorce on any ground other than those listed in the Act.

Irretrievable breakdown of marriage is, therefore, not a statutory ground for divorce under the Hindu Marriage Act, 1955. The position has, however, been significantly clarified by the Supreme Court. In Shilpa Sailesh v. Varun Sreenivasan (2023), a Constitution Bench held that the Supreme Court can dissolve a marriage on the ground of irretrievable breakdown by exercising its plenary powers under Article 142 of the Constitution to do complete justice, and that in a fit case it can also waive the six-month cooling-off period prescribed for mutual-consent divorce under Section 13B. This power, it must be stressed, is available only to the Supreme Court under Article 142; family courts and High Courts cannot grant divorce on this ground on their own.

The statutory position itself remains unchanged. The Marriage Laws (Amendment) Bill, 2010, which proposed to add irretrievable breakdown as a ground for divorce, lapsed and never became law. So while the older view that “only the Legislature can act” is no longer accurate in light of Shilpa Sailesh, it remains true that until Parliament amends the Hindu Marriage Act, 1955, irretrievable breakdown can be invoked as an independent ground only before the Supreme Court.

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