Irretrievable Breakdown of Marriage

“Irretrievable breakdown of marriage” as a ground for divorce is not yet statutorily recognized by the Indian Law Maker. I do not know about the position in other countries where the “culture”, “tradition”, “outlook”, “civilization” etc. differ vastly from that of India. The words “Irretrievable breakdown of marriage” are so “elastic”, “nebulous”, “inconclusive” and “ambiguous”, if not “dangerous”, that Judges at different levels may “use” or “misuse” the said expression to “grant” or “refuse” divorce in the cases before them. In criminal law, we have seen that by taking note of the fact that “judicial discretion” has been misused by Judges by awarding “flea bite” sentences, the Legislature intervened in many of the statutes by providing a “minimum mandatory sentence” of imprisonment in the expectation that at least the minimum term of imprisonment will be imposed on the convict.

2. A Trial Judge in the matrimonial jurisdiction after, actually seeing in flesh and blood the marital partners and their demeanour and deportment, may hold that their post-nuptial bickerings have not exacerbated into simmering conflicts of such magnitude and perpetuity as to conclude that a re-union is impossible by all means and may, therefore, disallow a claim for divorce. The appellate Judge, on the same evidence, may hold otherwise. That probably is the reason why the Law Maker has not chosen to incorporate the above expression as a ground for divorce in the Indian setting. Notwithstanding the fact that the 71^st Report of the Law Commission of India submitted to the Central Government on 07-04-1978, had recommended the insertion of “irretrievable breakdown of marriage” as a ground for divorce, the Parliament has stood firm against it.

3. We had in the State of Kerala a very forward and progressive legislation by name the “Travancore Nayar Regulation I of 1097 ME” (Malayalam Era corresponding to the year 1922) which was amended by the Nayar Regulation II of 1100 ME (1925) called the “Travancore Nayar Act, 1100 ME”. All Hindu Joint Family Systems including the Marumakkathayam System of Law, were repealed by Section 7 (2) of the Kerala Joint Family System (Abolition) Act, 1975 which came into force on 01-12-1976. Until such abolition, members of the Nayar (Nair) community in Kerala were governed by a system of inheritance called the Marumakkathayam Law of inheritance in which the descent was traced through the female line. A “Tarwad” was understood to include all members of a Nayar Joint Family with community of property and governed by the Marumakkathayam Law of Inheritance. The group of persons consisting of a female and her children and her descendants how low-so-ever in the female line constituted a “thavazhi”. Even though right of inheritance was from the “common ancestress”, the right of management of the Tarwad was vested in the senior most major male member called the “Karanavan” and in his absence, the senior most major female member called the “karanavathi”. The point which I am driving at is that in Section 5 of the above legislation (Travancore Nayar Act, 1100 ME) which was in force in the erstwhile Travancore area from the year 1925 onwards, there was a more sophisticated ground of divorce called “incompatibility of temperament”. Of course, after the advent of the Central Law, namely, the Hindu Marriage Act, 1955, the aforesaid subtle and refined ground of divorce, could not survive, the same having been eclipsed by the Central Act which, however, does not contain “irretrievable breakdown of marriage” as a ground of divorce.

4. It will be cruel to imprison the marital partners in an odious relationship where the parties have reached a point of no return. But at the same time, granting a decree of divorce at the sweet will or misplaced vanity of any of the spouses, is also not conducive to the institution of marriage in the Indian setting. Even in England, in the context of “cruelty” as a ground of divorce Lord Denning, L.J. in Kaslefsky v. Kaslefsky 1950 (2) All ER observed as follows –

“If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament. This is an easy path to tread, especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperiled.”

5. Reconciliation of a ruptured marriage is the first essay to be comprehended by the lawyers appearing on both sides as well as by the presiding Judge. All attempts should be made to ensure a reunion of the disputing spouses, rather than separating them. Order XXXII A of the Code of Civil Procedure, 1908 (CPC) is a sure pointer in that direction. See the extended definition of the word, “family” in Rule 6 of Order XXXII A CPC and the Explanation thereto, as given below –

“Rule 6: "Family" -- meaning of

For the purposes of this Order, each of the following shall be treated as constituting a family, namely:--

(a) (i) a man and his wife living together,

(ii) any child or children, being issue of theirs; or of such man or such wife,

(iii) any child or children being maintained by such man and wife;

(b) a man not having a wife or not living together with his wife, any child or children, being issue of his, and any child or children being maintained by him;

(c) a woman not having a husband or not living together with her husband, any child or children, being issue of hers, and any child or children being maintained by her;

(d) a man or woman and his or her brother, sister, ancestor or lineal descendant living with him or her; and

(e) any combination of one or more of the groups specified in clause (a), clause (b), clause (c) or clause (d) of this rule.

Explanation.- For the avoidance of doubts, it is hereby declared that the provisions of Rule 6 shall be without any prejudice to the concept of "family" in any personal law or in any other law for the time being in force.”

6. For the Indian Law Maker, our society has not become as sophisticated as the western society where “judicial separation” and “divorce” are so easy and commonplace like casting away one's robes. Very often it is the innocent offsprings of the wedlock who will be the first casualties in our attempts to promote easy divorce. It is pertinent to note in this context that even in cases where the statute allows “divorce by mutual consent” it is not a relief which is to be given on a mere asking. Every attempt should be made by the Court to avert the snapping of the bond of matrimony. The 6 month's period of “locus poenitentiae” fixed by the statute is also to enable the spouses to re-consider their decision to break the conjugal bond for ever.

7. I am conscious of the Supreme Court of India granting divorce on the ground of “irretrievable breakdown of marriage” by invoking article 142 of the Constitution of India under the jaundiced alibi of doing “complete justice” to the parties. (Vide –

• Jorden Diengdesh v. S. S. Chopra AIR 1985 SC 935 – O. Chinnappa Reddy, R. B. Misra – JJ;
• Chandrakala Menon v. Vipin Menon (1993) 2 SCC 6 – Kuldip Singh, B. P. Jeevan Reddy – JJ;
• V. Bhagat v. Mrs. D. Bhagat (1994) 1 SCC 337 – Kuldip Singh, B. P. Jeevan Reddy – JJ;
• Kanchan Devi v. Promod Kumar Mittal (1996) 8 SCC 90 – A. S. Anand, Faizan Uddin – JJ;
• Savitri Pandey v. Prem Chandra AIR 2002 SC 591 = (2002) 2 SCC 73 – R. P. Sethi, Y. K. Sabharwal – JJ. (Divorce on the ground of irretrievable breakdown of marriage, disallowed.)
• Swati Verma v. Rajan Verma (2004) 1 SCC 123 – N. Santhosh Hegde, B. P. Singh – JJ;
• Naveen Kohli v. Neelu Kohli AIR 2006 SC 1675 = (2006) 4 SCC 558 – 3 Judges – B. N. Agrawal, A. K. Mathur, Dalveer Bhandari – JJ;
• Darshan Gupta v. Radhika Gupta CIVIL APPEAL NOS. 6332-6333 OF 2009 - Jagdish Singh Kehar, P. Sathasivam – JJ – d. 01-07-2013. (Divorce on the ground of irretrievable breakdown of marriage, refused.)
• K. Srinivasa Rao v. D. A. Deepa (2013) 5 SCC 226 – Aftab Ala, Ranjana Prakash Desai – JJ;
• R. Srinivas Kumar v. R. Shametha (2019) 9 SCC 409 – Sanjay Kishan Kaul, M. R. Shah – JJ.
• Munish Kakkar v. Nidhi Kakka (2020) 14 SCC 657 – Sanjay Kishan Kaul, k. M. Joseph – JJ;
• Sivasankaran v. Santhimeenal 2021 SCC OnLine SC 702 – Hrishikesh Roy, Sanjay Kishan Kaul – JJ;
• Shilpa Sailesh v. Varun Sreenivasan 2023 SCC OnLine SC 328 = 2023 (3) KHC 435 = AIR 2023 SC (Civ) 2212 – 5 Judges – J. K. Maheshwari, Vikram Nath, Abhay S. Oka, Sanjay Kishan Kaul, Sanjiv Khanna – JJ (The situations in which the power under Article 142 of the Constitution of India could be exercised for granting a decree for divorce on the ground of “irretrievable breakdown of marriage”, stated in para 33. );

I need only quote Justice Krishna Iyer who said that the verdict of the Supreme Court is treated as “final” and “unassailable” only because there is no further appeal provided therefrom. Even there, under the guise of “review”, “reopen”, “recall”, “curative” etc. escape routes have been invented at the level of the Apex Court itself to surmount its own final verdicts. It appears that doing “complete Justice” to the parties in a “pending lis” is the prerogative of the Supreme Court only under Article 142 of the Constitution of India.

Are we to understand that for getting “complete Justice” done, a litigant has to approach the Apex Court in all cases ?

Are not the Courts and Tribunals at the cutting edge level entitled to do “complete Justice” to the parties before them by applying the yardsticks laid down by the Constitution Bench of the Supreme Court in Shilpa Sailesh (Supra – 2023 SCC OnLine 328) ?

If a Trial Judge musters sufficient courage to grant a decree of divorce on the ground that the marriage of the parties has broken down irretrievably, will he be usurping the jurisdiction of the Apex Court ? I don't think he will be. Lord Asquith is understood to have said to a group of American Lawyers –

“It is the duty of the Trial Court to be slow, courteous and wrong; this is, however, not to say that it is the duty of the Court of appeal to be quick, rude and right for that would be to usurp the function of the House of Lords.”

8. As long as the Parliament (which is expected to know the pulse and conscience of the citizenry), has not chosen to incorporate “irretrievable breakdown of marriage” as a ground for divorce under any of its statutes in India, my humble opinion is that it is not open to any Court to grant a decree of divorce on that ground. Otherwise, it will amount to a Judicial overreach by way of a Judge-made legislation. Even the Supreme Court had been of the view that it is not open to the Supreme Court to amend the law by adding “irretrievable breakdown of marriage” as a ground of divorce. In Vishnu Dutt Sharma v. Manju Sharma AIR 2009 SC 2254 = (2009) 6 SCC 379 –Markandey Katju, V. S. Sirpurkar – JJ, the Supreme Court observed as follows –

“10. On a bare reading of Section 13 of the Act, (Hindu Marriage Act, 1955) reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.”

The above is a declared pronouncement of law under Article 141 of the Constitution of India.

9. The power under Article 142 of the Constitution of India cannot be invoked to overcome a prohibition or a limitation in a statute. (Vide O.N.G.C. v. Gujarat Energy Transmission Corporation Ltd. (2017) 5 SCC 42 – 3 Judges - Dipak Misra, A. M. Khanwilkar, Mohan Shantanagoudar – JJ.) The power to do complete justice does not extend to include a power to disregard statutory provisions or ignore declared pronouncement of law under Article 141 of the Constitution of India even in exceptional circumstances. (Vide Nidhi Kaim v. State of M.P. AIR 2017 SC 986 = (2017) 4 SCC 1 – 3 Judges - J. S. Khehar – CJI, Kurian Joseph, Arun Mishra - JJ.)

MY CONCLUSION

10. My conclusion, therefore, is that, as of now, since “irretrievable breakdown of marriage” is not a ground for divorce recognized by the Law Maker, it is not open to any Court including the Apex Court to grant a decree of divorce on the ground of “irretrievable breakdown of marriage”. A claim for divorce on any of the statutorily enumerated grounds must stand or fall on “proof” or “non-proof” of the alleged ground and not beyond that. If, however, it is to be held that the Supreme Court of India, under Article 142 of the Constitution of India, can grant a decree of divorce on the above ground notwithstanding that it is not one of the statutorily enumerated grounds, then all other Courts including the Trial Courts should be able to grant a decree of divorce on that ground by applying the yardsticks laid down by the Constitution Bench of the Supreme Court in Shilpa Sailesh (Supra – 2023 SCC OnLine SC 328).

Author is Former Judge, High Court of Kerala. Views Are Personal.