YOUSUF RAWTHER V/S SOWARAMMA

Project Work of Family Law - I

On
Yousuf Rawther v/s Sowaramma

Submitted To:Mr. Ravi Ranjan Kumar

Faculty of Family Law - I

Submitted By: Kumar Vikram Aditya

Roll No. 1023
2nd Year B.B.A. LL.B. (Hons)

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ACKNOWLEDGEMENT

I am highly elated to have worked on my research topic Yousuf Rawther v/s Sowaramma
under the guidelines of Mr. Ravi Ranjan Kumar Faculty of Family Law- I. I am very
grateful to him for his proper guidance.
I would like to take this opportunity to express my profound gratitude and deep regard to him
for his exemplary guidance, valuable feedback and constant encouragement throughout the
duration of the project.
His valuable suggestions were of immense help throughout my project work.
His perceptive criticism kept me working to make this project in a much better way. Working
under him was an extremely knowledgeable experience for me.
I would also like to thank all my friends and my seniors and apart from all these I would like
to give special regard to the librarian of my university who made a relevant effort regarding
to provide the materials to my topic and also assisting me.
Finally I would like to thank my parents and brother for their immense support and presence
during this whole project work.

Kumar Vikram Aditya

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TABLE OF CONTENTS

Aim and Objective.........................................................................................................4

Research Methodology...................................................................................................4
Source of Data................................................................................................................4
Facts and Judgement...................................................................................................5-6
Fact..............................................................................................................5
Court Held...................................................................................................6
Provisions Related to Case........................................................................................7-17
Introduction..............................................................................................7-8
Divorce law in India....................................................................................8
Irretrievable Breakdown of Marriage.....................................................9-11
Why Irretrievable Breakdown..............................................................11-12
Merits and Demerits of the Theory of Irretrievable Breakdown..........13-15
71st Report of the Law Commission Of India (1978)..........................15-16
Fault Theory V. Breakdown Theory....................................................16-17
Other Relevant Cases..............................................................................................18-19
Naveen Kohli v. Neelu Kohli...................................................................18
Madhukar v. Saral....................................................................................18
Gajendra v. Madhu Mati..........................................................................18
Manjula v. K.R. Mahesh..........................................................................18
Vishnu Dutt Sharma v. Manju Sharma...............................................18-19
Critisicism & Conclusion........................................................................................20-21
Critisicism................................................................................................20
Criticism by the High Court.....................................................................20
Criticism by the Government..............................................................20-21
Conclusion................................................................................................21

Bibliography ............................................................................................................................22

AIM AND OBJECTIVE

The main aim of the researcher is to:

To know the facts and issues of the case.

To validate the judgement of the case.

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To know the provisions of the case.

To know other cases related to the provisions.

RESEARCH METHODLOGY
The various books, various articles, websites, Law journals, Acts, Treatises, are referred for
this topic. The sources from which the material for this research collected are primary &
secondary. The methodology used in the research has been Doctrinal. No non-doctrinal
method has been used by the researcher in this project work.

SOURCES OF DATA

Primary Sources: - 1. Marriage & Divorce Laws.

Secondary Sources: - 1. Books on Hindu & Mohammadan Law
2. Magazines
3. Websites
4. Law Review etc.

FACTS AND JUDGEMENT

In Yousuf v. Soweamma1 the learned judge emphasised the breakdown aspect of marriage
thus:

1 AIR 1951 Ker 261

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While there is no rose which has no thorns but if what you hold is all thorn and no rose,
better throw it away.
The ground for divorce is not conjugal guilt but breakdown of marriage2.
FACT: -The plaintiff had attained puberty even before her marriage and soon after the
wedding, the bridal pair moved on to the husband's house. The very next day the defendant
left for Coimbatore where he was running a radio dealer's business. A month's sojourn in the
house of the husband, and then the girl went back to her parents, the reason for her return
being blamed by each on the other. This separation lasted for over two years during this span
the defendant admittedly failed to maintain the wife, the ground alleged by the defendant
being that he was willing and, indeed, anxious to keep her with him but she wrongfully
refused to return to the conjugal home - thanks to the objectionable inhibition by the father of
the girl. The husband, finding the young wife recalcitrant, moved the mosque committee,
through his brother (Ext. D2) but the effort failed and so they reported that divorce was the
only solution (Ext. D4). Anyway, after preliminary skirmishes, in the shape of lawyer notices,
litigation for dissolution of marriage erupted. The trial court dismissed the suit but the
Subordinate Judge's Court granted a decree for dissolution of the marriage. The aggrieved
husband has come up to this court challenging the validity of the decree of the lower
appellate court. His counsel, Shri Chandrasekhara Menon, has highlighted a seminal issue of
Muslim law - the right of a female wrongfully leaving the matrimonial home to claim
dissolution through court for mere failure of the husband to maintain the erring wife for 2
years. The concurrent findings are that the plaintiff was 15 years old; that she had attained
puberty and the marriage had been consummated. Again, while both the courts have held that
the defendant had failed to provide maintenance for the plaintiff for a period of two years,
they have also recorded a crucial finding that it was through her own conduct that she led
her husband ..................to stop maintenance for a period of 2 years.
COURT HELD: -However, the court held: "as there is no evidence to show that the plaintiff
was under the age of 15 years when her marriage was solemnised and as the probabilities
establish that the marriage had been consummated, it is obvious that the second ground which
the plaintiff relied upon for dissolution of her marriage with the defendant has not been made
out".
2 Dr. Paras Diwan, Family Law, 10th Edition, 2013, Allahabad Law Agency, Pg35.
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The wife's suit for divorce was dismissed as it was found that she was neither faithful nor
obedient to her husband. So also was the wife's suit dismissed, where the wife, who lived
separately, was not ready and willing to perform her part of marital duties.

PROVISIONS RELATED TO THE CASE

Introduction
Marriage constitutes the very basis of social organization. Hindu law regards marriage as a
sacrament- indissoluble and eternal. This sacramental character of marriage has given rise to
certain anomalies. The declaration of Manu that neither by sale nor by desertion is wife
released from the husband was applied only to women and not men. Thus there was an
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element of inherent injustice on the wife in Hindu law. To counter such inequalities among
spouses and to protect the sacramental aspect of marriage, Hindu Marriage Act, 1955 was
enacted which provided certain matrimonial remedies.3
Marriage is an institution in the maintenance of which the public at large is deeply interested.
It is the foundation of the family and in turn of the society without which no civilization can
exist. 4A marriage solemnized, whether before or after the commencement of the Hindu
Marriage Act, 1955 can only be dissolved by a decree of divorce on any of the grounds
enumerated in Section 13 of the Act. Till the time a Hindu marriage is dissolved under the Act
none of the spouses can contract second marriage. Thus, it is obvious from the various
provisions of the Act that the modern Hindu Law strictly enforces monogamy. Even under the
Muslim Law plurality of marriage is not unconditionally conferred upon the husband.
Muslim law as traditionally interpreted and applied in India permits more than one marriage
during the subsistence of one and another though capacity to do justice between co wives in
law is condition precedent.5

As per the Hindu Law administered by courts in India divorce was not recognized as a means
to put an end to marriage, which was always considered to be a sacrament, with only
exception where it is recognized by custom. Public policy, good morals and the interests of

3 http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=797c51f70615-4fa8-b92e-7d7d24d03689&txtsearch=Subject:%20Family%20Law, Accessed
on 27/07/2014 on 15:14 IST.
4 Maynard v. Hill, 125 U.S. 190 (1888)
5 Dr Justice AR Lakshmanan, Whartons Concise Dictionary,15 th edition, reprint,
2011, Universal Law Publishing Co., Pg 693.
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society were considered to require and ensure that, if at all, severance should be allowed only
in the manner and for the reason or cause specified in law.6
One of the causes expressly recognized by law is the legal sanction of a valid custom to
dissolve a marriage. Thus the rules of dissolution of marriage and monogamy are subject to a
valid custom to the contrary. This shows that the law relating to marriage and divorce of
Hindus has an inverse relationship with a recognized valid custom.7
Divorce Law in India
There was a time when it was believed that the marriages were arranged in heaven and it used
to be a relation of flesh with flesh and bone with bone. So the question of separation from
each other was a far cry. But slowly and steadily this concept did not find favour with social
reformers, who wanted that a woman must not be chained with a man who is completely
devoid of all the virtues that a reasonable husband should have. The British Government
frowned upon any effort to make radical changes in the provisions of Hindu Law, although
Hindu reformers were agitating for such changes from time to time.
The Hindu Marriage Act, 1955 came into existence, eight years after the independence of the
country. Section 13 of the Hindu Marriage Act deal with the grounds on which the parties can
seek a decree of divorce from a competent court having jurisdiction to entertain such petition.
In the literal sense "divorce" means a legal separation of two persons of the opposite sex who
desire to respect and honour each other.8

6 https://bharatchugh.wordpress.com/category/family-law/, Accessed on 28/07/2014

on 17:58 IST.
7 http://india.indymedia.org/en/2005/11/211069.shtml, Accessed on 13/08/2014 on
12:18 IST.
8 http://legal360.in/LegalArticlesDetail?topic=58, Accessed on 22/08/2014 on 15:12 IST.
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Irretrievable Breakdown of Marriage

This means the couple can no longer live together as man and wife. Both partners, and one
partner, must prove to the court that the marriage broke down so badly that there is no
reasonable chance of getting back together.
Till date, the prevailing laws in India regarding the issue of divorce have not recognized a
situation where the spouses are facing a situation that despite the fact that they live under the
same roof, their marriage is equivalent to a separation. That is, there is still no codified law
for irretrievable breakdown of marriage. The Hindu Marriage Act recognize few grounds for
dissolution of marriage in Section 13.But with the change in the social mores and in view of
the changing nature of marriage in the society, the supreme court has shown special concern
over the matter of making irretrievable breakdown of marriage as a ground for divorce. The
Supreme Court has with a view to do complete justice and shorten agony of the parties
engaged in long drawn battle, directed dissolution of marriage. Indeed, these were
exceptional cases, as the law does not specifically provide for the dissolution of marriage on
the grounds other than those given in Hindu Marriage Act, 1955. Irretrievable breakdown of
marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the
change of circumstances and for covering a large number of cases where the marriages are
virtually dead and unless this concept is pressed into services, the divorce cannot be granted.
Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as
a ground of divorce or not but in our considered opinion the Legislature must consider
irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu
Marriage Act, 1955.
Examples of the kind of evidence the court will accept as proof of irretrievable breakdown:

The couple has not lived together like husband and wife for a period of time.
One partner had sexual intercourse with somebody else and because of this the other

partner finds it impossible to continue living together as husband and wife.

One partner is in prison after being declared an 'habitual criminal'. (This means he or
she keeps committing crimes, and because of this was sentenced to 10-15 years in

prison.)
One partner deserted the other.
One partner abused the other, for example the husband keeps assaulting the wife.
One partner is an alcoholic or a drug addict.

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The partners no longer love each other - they may be too different, or they married
when they were too young. - One of the partners finds it impossible to live together as
husband and wife for any other reason.

In A. Jayachandra v. Aneel Kaur9, the Supreme Court examined such cases. And after
discussing the fact concluded thus: When the respondent gives priority to her profession over
her husbands freedom it points unerringly at disharmony, diffusion and disintegration of
marital unity, from which the Court can deduce about irretrievable breaking of marriage. The
Court found the marriage irretrievably broken down and granted divorce to the husband. This
is however very surprising, as many a times in the similar circumstances the court, rather then
granting a decree for divorce has ordered for the restitution of conjugal rights holding the
notion of a Hindu marriage being sacrosanct as the very foundation of decree for restitution.
The idea behind the declaration of irretrievable breakdown of marriage is also based on the
consent as it plays a major role in the occurrence of a valid marriage. Since consent is
accorded primacy at the time of marriage, it follows that when one or both parties believe that
the marriage has broken, they can petition for divorce. When both parties agree the marriage
has failed, they can apply for divorce by "mutual consent". When only one of the parties
believes that the marriage is failing, it would be enabling for the party to seek divorce arguing
that the marriage has broken down, despite the unwillingness of the other party to end the
relationship.
However, except in the Islamic law, irretrievable breakdown of marriage is not found in
any legislation as a specific ground for divorce. There are five central concerns about
bringing the ground of irretrievable breakdown of marriage into the divorce statute. These
are:
1. Marriage relationship is accorded sanctity in our society, which would be treated with
levity if this ground of divorce is available;
2. Divorce carries social stigma, especially to the wife;
3. This ground permits husbands to terminate a marriage relationship at will;
4. This ground could be misused by an errant husband and;
5. That subjective element exists in the understanding of "irretrievability" and
"breakdown".

9 AIR 2005 SC 534

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Recognition of irretrievable breakdown of marriage as a ground for divorce requires setting

aside our notions of the sanctity of the marriage relationship. The sanctity that such
relationship has arises only from the exceptional sharing and trust that such relationship
involves, and cannot be sustained on external notions of unity and obligation. Related to this
is the issue of stigma, which we need to overcome and address instead of the dependencies
arising out of such relationships. This would matter tremendously in helping the woman
regain some measure of confidence.
The last three objections can be dealt with together, by introducing in the ground for
irretrievable breakdown, adequate safeguards which introduce objective elements to
determine when there is an irretrievable breakdown, and providing for the ancillary issues in
the marriage relationship to be resolved as a condition for grant of divorce. This would
include financial support to the spouse and children, arrangements on the custody of the
children, distribution of the property of the spouses, etc. Where the spouse applying for the
divorce has committed a wrong, this could be a factor in determining the maintenance
granted to the other spouse. While this ground may seem an attractive and easy option, the
introduction of objective factors to determine breakdown will ensure that this ground is not
opted for on whim or an impulse.10
Why Irretrievable Breakdown?
The theoretical basis for including the irretrievable breakdown of marriage as a ground for
divorce is now commonly known among lawyers and jurists. Restricting the ground of
divorce to a particular offence or matrimonial disability causes injustice in those cases where
the situation is such that although none of the parties is at fault, or the fault is of such a nature
that the parties to the marriage do not wish to divulge it, yet there has arisen a situation in
which the marriage cannot be worked; that is, where the marriage has all external
appearances of marriage but none of the reality. In such circumstances, there is hardly any
utility in maintaining the marriage as a faade, when the emotional and other bounds which
are the essence of marriage have disappeared. After the marriage has ceased to exist in
substance and in reality, there is no reason for denying divorce. In a situation like this, the
parties alone can decide whether their mutual relation is emotionally and socially real and
strong or not. Divorce should be seen as a solution and a way out of a difficult situation. Such
10 http://lawcommissionofindia.nic.in/51-100/Report71.pdf, Accessed on 17/08/2014
on 08:05 IST.
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divorce should not be concerned with the wrongs of the pasts, but must focus on bringing the
parties and the children to terms with the new situation and developments by working out the
most satisfactory basis upon which they may regulate their relation in the changing scenario.11
One of the facts from which the irretrievable breakdown can be presumed is, whether the
husband and wife have been living apart continuously for a long time. However, living apart
should be the only proof of irretrievable breakdown. Thus, it is not enough for the parties to
aver that there as been an irretrievable breakdown of marriage. Such an averment must be
substantiated and the fact that the parties to a marriage have not lived together for a long
period of time can reasonably taken to be a tangible presumptive proof of the breakdown of
marriage . In Sandhya Rani v. Kalyanram Narayanan12 the Court reiterated and took the view
that since the parties are living separately for the last more than three years, we have no doubt
in our mind that the marriage between the parties has irretrievably broken down. There is no
chance whatsoever of their coming together. Therefore, the Court in such cases, grant the
decree of divorce.
Matrimonial matters are matters of delicate human and emotional relationship. It demands
mutual trust, regard, respect, love and affection with sufficient play for reasonable
adjustments with the spouse. The relationship has to conform to the social norms as well. The
matrimonial conduct has now come to be governed by statute framed, keeping in view such
norms and changed social order. It is sought to be controlled in the interest of the individuals
as well as in broader perspective, for regulating matrimonial norms for making of a well-knit,
healthy and not a disturbed and porous society. The institution of marriage occupies an
important place and role to play in the society, in general. Therefore, it would not be
appropriate to apply any submission of "irretrievably broken marriage" as a straitjacket
formula for grant of relief of divorce. This aspect has to be considered in the background of
the other facts and circumstances of the case.13

11 http://lawcommissionofindia.nic.in/51-100/Report71.pdf, Accessed on 14/08/2014

on 07:55 IST.
12 (1994) Supp. 2 SCC 588.
13 http://lawcommissionofindia.nic.in/51-100/Report71.pdf, Accessed on 12/08/2014
on 19:13 IST.
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Merits And Demerits Of The Theory Of Irretrievable Breakdown

Before discussing the merits and demerits of the theory of irretrievable breakdown, a question
arises, that whether the Hindu Marriage Act can be amended with a view to making
irretrievable breakdown of marriage as a good ground for grant of a decree of divorce? In
seeking answer to the question we have to bear in mind the changing nature of the family.
The family is becoming more democratic and more egalitarian. Both the husband and wife
share not only the family house; in some cases they also share the earnings of each other.
Because of the rising rate of female activity, the family unit is more of a coalition. It is
therefore necessary that if the coalition cannot be worked, the legal sanction for it must be
withdrawn.
In answer to the obligation that the ground of irretrievable breakdown of marriage is vague, it
may be stated that the petitioner has to satisfy the court of a concrete fact- living apart for a
sufficient length of time. Judges have thus to adjudicate on facts (not on some vague
concepts) the question whether or not, on the evidence before them, the parties have been
living apart for the specified period.
A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under
the faulty theory, guilt has to be proved; divorce courts are presented concrete instances of
human behaviour as bring the institution of marriage into disrepute. Because of the divorce of
matrimonial offence, judges, and lawyers are sometimes reduced to the role of scavengers.
The lawyers have to look for and expose and the judges are confronted with, the worst
obscenities within a married life. It is therefore, not surprising that with the present adversary
system all types of allegations are freely hurled across the courtroom. We need not stand on
an old divorce law which demands that men and women must be found innocent or guilty. It
is desirable to get rid of the public washing of dirt linen which takes place in long drawn-out
cruelty cases or in cases based on fault. If divorce is allowed to go through on the ground of
marriage breakdown, such an unhappy spectacle will be avoided.
One cannot say that it is an enhancement of the respondent for marriage if there are tens of
thousands of men and women desperately anxious to regularize their position in the
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community and they are unable to do so. People should be able to marry again where they
can obtain a death certificate in respect of a marriage already long since dead. The objection
that irretrievable breakdown as a ground of divorce is vague has been already dealt with.
Other objections to it may be dealt witha) Irretrievable breakdown allows the spouses, or even one spouse, to terminate the marriage
at will, thus transforming marriage from a union for life into one which can be ended at
pleasure,
b) It is necessary to the basic principle that no man should be allowed to take advantage of his
own wrong; a spouse who was responsible for the breakdown of marriage should not be able
to rely on such breakdown in order to obtain a divorce against his or her partners will. By
authorizing one spouse to divorce the other against the latters will after separation for a
specific period; the law will have given statutory recognition for the first time to the principle
that a person may take advantage of his or her own wrong.
The theory that one cannot take advantage of ones own wrong has not been adhered to in the
Hindu Marriage Act in the past. According to clause (ii) of sub section (1A) of section 13 of
the Act, either party to a marriage, whether solemnized before or after the commencement of
this Act, may present a petition for the dissolution of the marriage by a decree of divorce on
the ground that there has been no restitution of conjugal rights as between the parties to the
marriage for a period of one year or afterwards after the passing of a decree for the restitution
of conjugal rights in proceedings to which they were parties. This provision clearly
contemplates that even the party which has been in the wrong in so far as it has failed to
comply with a decree for restitution of conjugal rights can also apply for a decree of divorce
on the ground that there has been no restitution of conjugal rights as between the parties to
the marriage for a period of one year or upwards after the passing of the decree for restitution
of conjugal rights in a proceeding to which they were parties. Such a party, though at fault,
would thus be taken advantage of its own fault. It cannot therefore be said that under the
provision of the Hindu Marriage Act, as they stand at present, no person can be allowed to
take advantage of his own wrong.
Thus, once the marriage has broken down beyond repair, it would be unrealistic for the law
not to take notice of that fact, and it would be harmful to society and injurious to the interests
of the parties if the legal bond is sought to be maintained notwithstanding the disappearance
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of the emotional substratum. Such a course would encourage continuous bickering perpetual
bitterness, and may often lead to immorality. Where there has been a long period of
continuous separation, it may fairly be summarised that the matrimonial bond is beyond
repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever
that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows
scant regard for the feelings and emotions of the parties.
Public interests demands not only that the married status should, as far as possible, as long as
possible, and whenever possible, be maintained, but also that the court should be empowered
to declare defunct de jure what is already defunct de facto, where a marriage has been
wrecked beyond the hope of salvage, public interest lies in the recognition of that fact. To
keep the sham is obviously conducive to immorality and potentially more prejudicial to the
public interest than dissolution of the marriage bond.
Since there is no acceptable way in which a spouse can be compelled to resume life with the
consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact
has ceased to exit. Marriage is lifelong cohabitation in the home. When the prospect of
continuing cohabitation has ceased, the legal tie should be dissolved.14
71st Report Of The Law Commission Of India (1978)
The Law Commission in its 71st report, submitted in 1978, dealt with the concept of
irretrievable breakdown of marriage. 15The report deals with an important question
concerning the Hindu Marriage Act, 1955, whether irretrievable breakdown of marriage can
be made a ground for divorce under that Act and if so, to what extent and subject to what
conditions?
The Report mentions that as far back as 1920, New Zealand was the first of the
Commonwealth countries to introduce the provision that a three-year or more separation
agreement was grounds for filing a petition in the courts for divorce. In 1921, in the first case
of the granting of divorce on these grounds in New Zealand, the court laid down that when
matrimonial relations have, in fact, ceased to exist it is not in the interests of the parties or in
14 http://lawcommissionofindia.nic.in/51-100/Report71.pdf, Accessed on 28/07/2014
on 22:40 IST.
15 irretrivable breakdownof marriage as a ground of divorce,1978
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the interest of the public to keep a man and woman bound as husband and wife in law. In the
event of such a separation, the essential purpose of marriage is frustrated and its further
continuance is not merely useless but mischievous. This formulation has become a classic
enunciation of the breakdown principle in matrimonial law.
The Law Commission observed that restricting divorce to matrimonial disability results in an
injustice in cases where neither party is at fault, or if the fault is of such a nature that the
parties do not wish to divulge it and yet the marriage cannot be worked out. It refers to a
situation where the emotional and other bonds, which are the essence of marriage, have
disappeared and only a faade remains. The commission concludes that where a marriage has
ceased to exist both in substance and in reality, divorce should be seen as a solution and an
escape route out of a difficult situation. Such a divorce should be concerned with bringing the
parties and the children to terms with the new situation and working out a satisfactory basis
for regulating relationships in the changed circumstances. Not to dwell on the wrongs of the
past.16
Fault Theory V. Breakdown Theory
In most of the cases, the question confronted by the Honble Supreme Court is should divorce
be granted solely on the basis of who is at fault? Or should irretrievable breakdown of a
marriage be cause for divorce?17
The Hindu Marriage Act governing marriages between Hindus, and the Special Marriage Act
governing marriage between individuals regardless of religious persuasion, are premised on
the fault or matrimonial offence theory for the purpose of divorce. This, in effect, means
that a person can be granted a divorce if, for example, it is established that the spouse has
committed adultery, or has treated the person cruelly or deserted for more than two years.
Thus the person has been at fault in some way. In addition, the wife can ask for a divorce on
grounds that after marriage her husband was guilty of rape, sodomy or bestiality.
Part of the fault theory is that a person cannot take advantage of his/her own wrong. Divorce
can only be sought by the hurt or aggrieved party who has been at the receiving end of the
16 71st Report of the Law Commission, Government of India, p.12; cited in
Naveen Kohli case.
17 AIR 2006 S.C. 1675
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other partys offending conduct. There has been an ongoing debate about whether divorce
should be granted solely on the basis of the fault of the party or whether it should be based on
the breakdown of marriage. Opinions remain divided among sociologists, lawmakers,
reformers and even activists and feminists
Marriage as a sacrament, societys stake in the continuance of marriage, the duty of judges to
effect reconciliation between the parties, and public interest are some of the major factors that
feature in this debate. Would introducing irretrievable breakdown as grounds for divorce
work against the interests of women, given the gender disparities and large number of women
deserted by their husbands?18

18 http://lawcommissionofindia.nic.in/51-100/Report71.pdf, Accessed on 28/07/2014

on 22:40 IST.
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OTHER RELEVANT CASES

In the recent case of Naveen Kohli v. Neelu Kohli19, the Supreme Court held that situations
causing misery should not be allowed to continue indefinitely, and that the dissolution of a
marriage that could not be salvaged was in the interests of all concerned. The court concluded
that the husband was being mentally, physically and financially harassed by his wife. It held
that both husband and wife had allegations of character assassination against them but had
failed to prove these allegations. The court observed that although efforts had been made
towards an amicable settlement there was no cordiality left between the parties and, therefore,
no possibility of reconnecting the chain of marital life between the parties.
In Madhukar v. Saral, the Bombay High Court held that the enactment of Section 13 (1-A) in
1964 is a legislative recognition of the principle that in the interest of society, if there has
been a breakdown of the marriage, there is no purpose in keeping the parties tied down to
each other.20
In Gajendra v. Madhu Mati, it was held that where parties have been living separately for
seventeen years, the chance of their re-union may be ruled out and it may be reasonable to
assume that the marriage has broken down irretrievably. So the marriage should be
dissolved.21
The Supreme Court in Manjula v. K.R. Mahesh held, the marriage had irretrievably broken
down and there would be no point in making an effort to bring about conciliation between the
parties.22
19 AIR 2006 S.C. 1675
20 AIR 1973 Bom. 55-57
21

II (2001) DMC 123 (MP).

22

JT 2006 (7) SC 220.

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In Vishnu Dutt Sharma v. Manju Sharma the Supreme Court made it clear that a decree of
divorce between the parties cannot be granted merely on ground of marriage having been
irretrievably broken down and Court cannot add a new ground in the existing list of grounds
as available in Section 13 of the Hindu Marriage Act 1955 or any other Statute dealing with
matrimonial remedies.

The facts of the case in brief are as follows:

The marriage took place between the appellant and the respondent on 26.02.1993 and a
female child was born on 6.12.1993. In the petition filed by the appellant, it was alleged that
soon after the marriage the respondent was behaving in a cruel manner derogatory to the
appellant and the family members; that the respondent avoided staying in the matrimonial
home and never remained there for more than 25 days together; and that after leaving the
matrimonial home on 19.5.1993 while she was pregnant with the child, the respondent never
returned to live with the appellant. It was also alleged that the father of the respondent is a
retired Sub-Inspector of the Delhi Police and brother is a Constable and both used to extend
threats to the appellant and his family members that they would be implicated in false cases.
The trial Court after examining the evidence came to the conclusion that no case of cruelty
had been made out as alleged by the appellant. The Trial Court held that considering that the
respondent had been turned out of the matrimonial home and had been given beatings for
which she was medically examined; it was the respondent who was treated cruelly by the
appellant.
In the instant case, the respondent wife had both before the trial Court and this Court been
able to demonstrate that far from treating the appellant with cruelty, she in fact suffered
cruelty at the hands of the appellant. To grant divorce to the appellant despite this only on the
ground of irretrievable breakdown would not, in the view of this Court, be doing justice to the
respondent.23

23

AIR 2009 SC 2254.

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CRITICISM AND CONCLUSION

Criticism
The concept of irretrievable breakdown of marriage to be made a ground for divorce under
the Hindu Marriage Act, 1955 has been although a lot more debated but it has equally been
criticized at various points by the state High courts and The Government of India. They can
be summarized as follows:Criticism by the High Court: High Court has in many cases, expressed disagreement with
the suggestion that the Hindu Marriage Act, 1955 should be amended with a view to making
irretrievable breakdown of marriage as a good ground for grant of a decree of divorce.
The judges of the High Courts have expressed themselves against the introduction of
irretrievable breakdown as a ground of divorce. One of the points made in the reply of the
High Court is that it is extremely difficult to say that the husband and wife would never live
together merely because there has been a rift between them and for the time being it appears
that there may not be any prospect of their living together.
The mere fact that there has been a rift between the parties or that they are for the time living
apart does not mean that the marriage has come to an end.
It is possible that what may appear to one person to be irretrievable may appear to another as
not yet beyond repair. But such a state of things cannot be allowed to continue indefinitely,
and there must arrive a point of time when one of the parties should be permitted to seek the
judgment of the court as to whether there is or there is not a possibility of the marriage being
retrieved.

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Criticism by the Government: -The Government of India, Ministry of Education,

Department of Social Welfare, has expressed the review that making irretrievable breakdown
of marriage a ground for grant of a decree of divorce is redundant in the light of the fact that
sufficient grounds covering irretrievable breakdown of marriage exist in the Hindu Marriage
Act and the Marriage Laws Amendment Act, 1976, for the purpose of seeking divorced.
Thus we see that though a lot of authorities have deliberated upon the aspect of irretrievable
breakdown of marriage as a ground for divorce there has also been a vast majority of
authorities that have seen the drawbacks behind this concept of breakdown theory and are not
in favour of its legislative birth and implementation.
Conclusion
Thus to conclude, it can be said that marriage is an institution in the maintenance of which
the public at large is deeply interested. It is the foundation of the family and in turn of the
society without which no civilisation can exist. This foundation presupposes the existence of
a platform build on the basis of sound understanding between the spouses. If this
understanding is missing between the spouses and the marriage is a continuous malady, then
it is desirable that the marriage should be dissolve with the intervention of the court. There is
no useful purpose served by continuing such a marriage. Thus, on the basis of "irretrievable
breakdown theory" such marriage should be dissolved for the common betterment of both the
spouses.
This is the reason why the attitude of legislature changed from the guilt theory to the
divorce by mutual consent (the consent theory). There may be a case where relation of the
parties has broken down irretrievably and there is no chance of reconciliation and they are
also not ready for divorce by mutual consent. In that eventuality continuing such relation is
futile and as per Irretrievable Breakdown of Marriage theory such marriage should be
dissolved. It is high time that we appreciate the need of Irretrievable Breakdown of Marriage
theory so that spouses can have a new and better life instead of wasting their Young Days
in courts.

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BIBLIOGRAPHY

STATUTES
Marriage & Divorce Laws

BOOKS
Dr. Paras Diwan, Family Law, 10th Edition, 2013, Allahabad Law Agency.
Prof. G.C.V. Subba Rao, Hindu Law, 10th Edition, 2011, S. Gogia & Company.
Nalsar Law Review, Vol. 5, No. 1, 2010.

71st Report of the Law Commission, Government of India.

WEBSITES

http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=797c51f7-06154fa8-b92e-7d7d24d03689&txtsearch=Subject:%20Family%20Law, Accessed on
27/07/2014 on 15:14 IST.

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