Divorce: Irretrievable breakdown needs no legislative reaffirmation Law

It is not the existence of a legally recognized ground but the occurrence of an irretrievable breakdown that is the indispensable prerequisite for the grant of divorce. Irretrievable breakdown is, thus, an inbuilt condition that needs no further affirmation from the legislature

Dead marriages need a ‘death certificate’ to be buried for good, which is what divorce actually is. Courts do not kill marriages. Most of the marriages that end up in divorce are actually ‘brought dead’. By granting divorce the courts simply concede that the marriage has broken down beyond repair and there is no point in keeping the two partners yoked together by doggedly denying dissolution. Therefore, in granting divorce under any ground whatsoever the court actually accords legal recognition to ‘irretrievable breakdown’ of a marriage, thus allowing the partners to carry on with their individual lives separately. In other words, the court allows the burial of the dead body of a marriage so as to relieve the couple of the compulsion to lug it around, particularly when neither of the parties is interested in attempting a revival.

adfGenerally, in India a marriage comes to the doorsteps of a divorce court only after the couple has itself failed to make it work, and also after its family and relatives together with the rest of the society have already tried with little success all the means at their disposal to keep the duo married. Backed by several rulings of the Supreme Court, it is by now a settled principle of Indian divorce law that the courts are to try their level best to rescue the marriage before granting divorce. So, the court is the Intensive Care Unit where a dead or ‘almost dead’ marriage is brought for a final attempt at resuscitation at the option of the judge because the parties have already tried and failed.

The grounds for divorce provided under the Hindu Marriage Act are situations under which the law considers it justified for a person to seek divorce. Differently put, these are situations that the legislature could envisage as causes for the irretrievable breakdown of a marriage. However, breakdown of a marriage could occur for reasons other than those mentioned or might simply occur on account of insurmountable incompatibility. Besides, there can be any number of situations in which the party seeking divorce might find it too embarrassing or plainly inappropriate to cite the reasons for the breakdown of marriage even if the real cause may actually be a ground for divorce. And the court cannot insist on being privy to the private life of a married couple as a precondition for granting divorce.

The courts should not grant divorce for the asking, but neither should they be too slow in granting it where the marriage has already broken down completely. The ‘preservation of marriage’ must not be pushed too far. Once the court has tried its hands at reconciliation and revival, and finds that the marriage cannot be really rescued, it cannot deny divorce solely on the grounds that irretrievable breakdown of marriage is no ground for divorce under Hindu Marriage Act (HMA) because irretrievable breakdown need not be a ground at all. Grounds under the Hindu Marriage Act are the causes and ‘breakdown of marriage’ is the effect. So, even if the causes are not known or could not be fully established, it does not obliterate the effect. It is like a doctor refusing to accept the fact of a patient’s death in absence of a medically recognized cause of death.

That irretrievable breakdown of marriage is a prerequisite for grant of divorce irrespective of the grounds under which the dissolution is sought is further clarified by the fact that the courts do not grant divorce simply because the ground for divorce is shown to exist in a particular case. The law and the courts attempt a revival of marriage and try to effect reconciliation. It is only when the concerned court is certain that no revival is possible that the divorce is granted, which implies that the court seeks to establish to its satisfaction that an irretrievable breakdown of marriage has occurred before granting divorce. If a husband commits adultery, his wife can rightfully seek divorce invoking Section 13(1)(i) of the Hindu Marriage Act. However, if she chooses to forgive and forget, the courts cannot grant divorce simply because the ground exists. Even if the husband approaches the court admitting to adultery and asking the court to grant divorce to his wife because he feels that such a devoted wife and pious woman does not deserve to be with an adulterer like him and he doesn’t deserve a wife as good as she is, the court cannot grant divorce because the wife has forgiven and for that reason no breakdown of marriage occurred. Of course, nobody can be allowed to take the benefit of his or her own mistake. But that legal principle need not be pressed into service, as the Hindu Marriage Act effectively takes care of the situation here.

Therefore, it is not the existence of a legally recognized ground but the occurrence of an irretrievable breakdown that is the indispensable prerequisite for the grant of divorce. Irretrievable breakdown is, thus, an inbuilt condition that needs no further affirmation from the legislature, and, therefore, need not be sought as a specific ground for divorce by legislative stipulation.

It is also amply clear that breakdown of marriage has to be examined from the standpoint of the partners involved because whether a breakdown has occurred or not and whether the breakdown is irretrievable or not is primarily questions of fact, the answer to which can only be found in the way the partners involved perceive their marriage and its future. Thus, breakdown of marriage occurs in the mind of one or both of the partners much before its external manifestation is perceptible. And if no breakdown occurs in the mind, it doesn’t matter if all the grounds mentioned under the Hindu Marriage Act are indisputably available. So, if a husband has not been heard of for decades on end, but the wife considers herself his wife and their marriage good, there is no breakdown. A person might convert to any religion whatsoever, but if his or her spouse considers their marriage good, there is no breakdown. Ergo, there is a great deal of subjectivity involved in ‘breakdown of marriage’. It follows that in certain situations the breakdown may not have loud external manifestations and the reasons might also appear relatively trivial. But that doesn’t change the fact of the breakdown, lessen the severity of it or affect its permanence. The subjective aspects of a breakdown must not be overlooked. So, when one of the partners feels that his or her marriage has irretrievably broken down, what needs to be ‘established beyond doubt’ is the fact of the breakdown. And once irretrievable breakdown of marriage is established, the court can grant divorce on that ground alone because that is always the ultimate reason for the courts to grant divorce anyway, as discussed above. Denying divorce despite irretrievable breakdown is arbitrary, unjust and against the spirit of the law and the legislative intent.

Also see: Irretrievable breakdown: Supreme Court in breach of stare decisis? and The ‘breakdown’ story

Published on my WordPress Blog on May 14, 2009.


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