Sunday, May 26, 2024

𝗝𝘂𝗱𝗶𝗰𝗶𝗮𝗹𝗗𝗿𝗲𝗮𝗺™

𝙰𝙵𝙵𝙾𝚁𝙳𝙰𝙱𝙻𝙴 & 𝙰𝙲𝙲𝙴𝚂𝚂𝙸𝙱𝙻𝙴

HINDU LAWMODEL ANSWER

IRRETRIEVABLE BREAKDOWN OF MARRIAGE

Discuss “Irretrievable Breakdown of Marriage” as a ground of divorce.
Or
If there has been no resumption of cohabitation between parties for a period of one year after passing of a decree for judicial separation, then whether any party to a marriage can file a petition for dissolution of marriage on the ground of irretrievable breakdown of marriage and if yes, then under which section of Hindu Marriage Act, 1955?
Or
If there has been no restitution of conjugal rights as between the parties to a marriage for a period of one year after passing of a decree for restitution of conjugal rights, then whether any party to a marriage can file a petition for dissolution of marriage on the ground of irretrievable breakdown of marriage and if yes, then under which section of Hindu Marriage Act, 1955?

The most celebrated article of the Constitution of India provides a very basic right i.e. “Right to live a dignified life”. This is not only a fundamental right but a natural right also and it is very essential for the proper development of human being.
Marriage does not take away this right from the parties and even after the marriage parties can still enjoy this fundamental right. Moreover, it is duty of each and every spouse that he should not do any act that may violate this right. If any spouse because of his act violates this right of another spouse then latter spouse has right to take the divorce from former spouse and get the marriage dissolved.

Section 13 of Hindu Marriage Act, 1955, deals with the provisions of Divorce and according to this section, any husband or wife can take a divorce from another spouse if latter commits any matrimonial offence. This section is based upon the theory of guilt. But the Government of India introduced new theory i.e. Theory of Irretrievable Breakdown of Marriage in the year 1964 by adding section 13(1A) in the Hindu Marriage Act, 1955.

  

According to section 13(1A) of Hindu Marriage Act, 1955, if there has been no resumption of cohabitation between spouses for a period of one year or upwards after passing of a decree for judicial separation or if there has been no restitution of conjugal rights between the spouses for a for of one year or upwards after passing of a decree for restitution of conjugal rights, then either of the spouse can file a petition for the dissolution of marriage on the ground of irretrievable breakdown of marriage.

This Irretrievable Breakdown of Marriage theory is totally different from Fault or Guilt theory. Because according to this theory it is worthless to decide the liability of any party and to punish the guilty party but the aim of this theory is to protect the interest of both the parties.

According to this theory, if the matrimonial relationship of parties are beyond all the possibilities of repair and their relationship has completely broken down and they do not want to live together, then any of the party can apply for the dissolution of marriage and in such a case the court will grant the divorce without fixing any responsibility on either party and without looking into the causes of such breakdown. The main objective of this theory is to protect the interest of an innocent party.

  

In a leading case of Yousuf vs Sowramma (AIR 1971 Ker 261), the Hon’ble Court said that, “while there is no rose which has no Thorns but if what you hold is all thorn and no rose, better throw it away.” According to this judgment, if the marriage between parties has completely broken down then it should be dissolved with maximum fairness and minimum bitterness.

In a leading case of Manish Goel vs Rohini Goel (AIR 2010 SC 1099) The Supreme Court held that, “ dissolution of marriage in case of irretrievable breakdown of marriage is to be granted where marriage is totally unworkable, emotionally dead, beyond salvage and broken down irretrievably.”

But under section 13(1A) of Hindu Marriage Act,1955 any of the spouse can file a petition for dissolution of marriage on the ground of irretrievable breakdown of marriage only if after passing of a decree for judicial separation or restitution of conjugal rights he has tried his best to resolve the dispute and to re-unite the tie.

But, if he commits any of the matrimonial offence then according to section 13(1A) read with section 23(1)(a) of Hindu Marriage Act, 1955, he will not get the matrimonial relief and court will not grant the divorce on his petition even if his petition consists all the grounds which have been mentioned under section 13(1A) of Hindu Marriage Act, 1955.

In a leading case of Hirachand Srinivas vs Sunanda (AIR 2001 SC 1285), The Supreme Court held, “ under section 13(1A) a read with Section 23(1)(a) the petitioner does not have a vested right for getting the relief of a decree of divorce against the other party merely on showing that the ground in support of the relief sought as stated in the petition exists. If the petitioner commits an illegal or immoral act he cannot secure relief in matrimonial matters.

Hence, it can be said that if the marriage of parties has broken down completely and they do not want to live together because there is no hope of reconciliation then any of the party can file a petition for dissolution of marriage on the ground of irretrievable breakdown of marriage.

  

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