A Case for Statutorily Recognition of Irretrievable Breakdown of Marriage

Since antiquity, the concept of union in Hindu marriage has always been considered sacred and indissoluble. The Shastri-religious understanding of Hindu marriage is that heavenly-made unions are merely united and tied into a knot on this earth. Hence, once the union is formed, and the ceremonies and rites concluded, there is no scope for a couple to seek “divorce”. The traditional concept of Hindu marriage, although altered by Indias post-colonial enactment of the Hindu Marriage Act in 1955 (“the Act”), aimed to reflect the countrys identity as a liberal constitutional democracy by providing for certain grounds for seeking divorce, including mutual consent. However, the states broader policy reflected in the overall objective scheme of the Act remained incongruent with the Shastri-religious understanding of Hindu marriage. Thus, divorce was only the last remedy, and was granted by the courts only after the aggrieved couples fulfilled due procedural requirements as per the mandate of the Act. Hence, it is against this backdrop that the recent constitutional bench judgment in iShilpa Sailesh v. Varun Sreenivasan (2023)/i of the apex court regarding the waiver of the procedural requirements under section 13-B of the Act by the court using its constitutional powers of ‘complete justice” under Article 142 of the Indian Consitution, is limited only to certain exceptional circumstances. This paper argues for recognising the Irretrievable Breakdown of Marriage (“IRB”) as a legal ground in the Hindu Marriage Act of 1955 (“the Act”). It traces the evolution of Hindu marriage and discusses why Fault, Frustration, and Consent theories are inadequate, advocating for IRB to accommodate diverse situations. It analyses the Acts scheme, shows the presence of breakdown theory, and examines legal developments regarding IRB as a divorce ground, noting some limitations. It addresses objections from womens groups and calls for social reforms ensuring womens financial independence and reducing divorce stigma.