A Case for Statutorily Recognition of Irretrievable Breakdown of Marriage

Lokinder Sharma

doi:doi:10.11648/j.ijls.20240703.12

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A Case for Statutorily Recognition of Irretrievable Breakdown of Marriage

Lokinder Sharma^*

Published in International Journal of Law and Society (Volume 7, Issue 3)

Received: 24 June 2024 Accepted: 22 July 2024 Published: 6 August 2024

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Abstract

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 India's post-colonial enactment of the Hindu Marriage Act in 1955 (“the Act”), aimed to reflect the country's identity as a liberal constitutional democracy by providing for certain grounds for seeking divorce, including mutual consent. However, the state's 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 Shilpa Sailesh v. Varun Sreenivasan (2023) 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 Act's scheme, shows the presence of breakdown theory, and examines legal developments regarding IRB as a divorce ground, noting some limitations. It addresses objections from women's groups and calls for social reforms ensuring women's financial independence and reducing divorce stigma.

Published in	International Journal of Law and Society (Volume 7, Issue 3)
DOI	10.11648/j.ijls.20240703.12
Page(s)	107-111
Creative Commons	This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited.
Copyright	Copyright © The Author(s), 2024. Published by Science Publishing Group

Keywords

Irretrievable Breakdown of Marriage, Hindu Marriage, Divorce, Legal and Social Reforms

References

[1]	CANTAR M., VOHRA N., “Financial freedom: A step towards life without domestic violence” (World Bank Blogs, December 2021) worldbank.org )> accessed on 12 May 2024.
[2]	Kalara M., “Breaking Taboos: Navigating Divorce and Cultural Stigma \| Self-Improvement” podbean.com )> accessed on 12 May 2024.
[3]	Kumar v., 'Varying Judicial Responses to Dissolution of Marriage by Mutual Consent under the Hindu Marriage Act, 1955: A Crisis of Constitutional Culture' (2010) 52(2) Journal of the Indian Law Institute 267-286.
[4]	Kusum, 'Irretrievable Breakdown of Marriage: A Ground for Divorce' (1978) 20(2) Journal of the Indian Law Institute 288-303.
[5]	Law Commission of India, The Hindu Marriage Act, 1955 - Irretrievable Breakdown of Marriage as a Ground of Divorce (Law Com No 71, 1978).
[6]	Muralidhar S., ‘Appearing in Court in India: Challenges in Representing the Marginalised CASTE’ (2022) A Global Journal on Social Exclusion 421-441.
[7]	Parliament of India, Rajya Sabha, Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, 'Forty Fifth Report on The Marriage Laws (Amendment) Bill, 2010' (Presented to the Rajya Sabha on 1st March 2011) (Laid on the Table of the Lok Sabha on 1st March 2011).
[8]	Rose N., 'Beyond the Public/Private Division: Law, Power and the Family' (1987) 14(1) Journal of Law and Society 61-76 (Wiley, Cardiff University).
[9]	Sharma L., 'Dynamics of Property, Power, Women and Development' (2024) 7(2) IJLMH 2113-2124.
[10]	Singh K., 'Towards Achieving Equal Rights in Marriage' (2012) 47(24) Economic and Political Weekly 17-19.
[11]	V.S. J., 'Irretrievable Breakdown of Marriage as an Additional Ground for Divorce' (2006) 48(3) Journal of the Indian Law Institute 439-444.

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Sharma, L. (2024). A Case for Statutorily Recognition of Irretrievable Breakdown of Marriage. International Journal of Law and Society, 7(3), 107-111. https://doi.org/10.11648/j.ijls.20240703.12

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Sharma, L. A Case for Statutorily Recognition of Irretrievable Breakdown of Marriage. Int. J. Law Soc. 2024, 7(3), 107-111. doi: 10.11648/j.ijls.20240703.12

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Sharma L. A Case for Statutorily Recognition of Irretrievable Breakdown of Marriage. Int J Law Soc. 2024;7(3):107-111. doi: 10.11648/j.ijls.20240703.12

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@article{10.11648/j.ijls.20240703.12,
  author = {Lokinder Sharma},
  title = {A Case for Statutorily Recognition of Irretrievable Breakdown of Marriage
},
  journal = {International Journal of Law and Society},
  volume = {7},
  number = {3},
  pages = {107-111},
  doi = {10.11648/j.ijls.20240703.12},
  url = {https://doi.org/10.11648/j.ijls.20240703.12},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20240703.12},
  abstract = {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 India's post-colonial enactment of the Hindu Marriage Act in 1955 (“the Act”), aimed to reflect the country's identity as a liberal constitutional democracy by providing for certain grounds for seeking divorce, including mutual consent. However, the state's 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 Shilpa Sailesh v. Varun Sreenivasan (2023) 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 Act's scheme, shows the presence of breakdown theory, and examines legal developments regarding IRB as a divorce ground, noting some limitations. It addresses objections from women's groups and calls for social reforms ensuring women's financial independence and reducing divorce stigma.
},
 year = {2024}
}

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Y1  - 2024/08/06
PY  - 2024
N1  - https://doi.org/10.11648/j.ijls.20240703.12
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AB  - 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 India's post-colonial enactment of the Hindu Marriage Act in 1955 (“the Act”), aimed to reflect the country's identity as a liberal constitutional democracy by providing for certain grounds for seeking divorce, including mutual consent. However, the state's 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 Shilpa Sailesh v. Varun Sreenivasan (2023) 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 Act's scheme, shows the presence of breakdown theory, and examines legal developments regarding IRB as a divorce ground, noting some limitations. It addresses objections from women's groups and calls for social reforms ensuring women's financial independence and reducing divorce stigma.

VL  - 7
IS  - 3
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Lokinder Sharma

National Law School, India University, Bangalore, India

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APA Style

Sharma, L. (2024). A Case for Statutorily Recognition of Irretrievable Breakdown of Marriage. International Journal of Law and Society, 7(3), 107-111. https://doi.org/10.11648/j.ijls.20240703.12

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ACS Style

Sharma, L. A Case for Statutorily Recognition of Irretrievable Breakdown of Marriage. Int. J. Law Soc. 2024, 7(3), 107-111. doi: 10.11648/j.ijls.20240703.12

Copy | Download

AMA Style

Sharma L. A Case for Statutorily Recognition of Irretrievable Breakdown of Marriage. Int J Law Soc. 2024;7(3):107-111. doi: 10.11648/j.ijls.20240703.12

Copy | Download

@article{10.11648/j.ijls.20240703.12,
  author = {Lokinder Sharma},
  title = {A Case for Statutorily Recognition of Irretrievable Breakdown of Marriage
},
  journal = {International Journal of Law and Society},
  volume = {7},
  number = {3},
  pages = {107-111},
  doi = {10.11648/j.ijls.20240703.12},
  url = {https://doi.org/10.11648/j.ijls.20240703.12},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20240703.12},
  abstract = {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 India's post-colonial enactment of the Hindu Marriage Act in 1955 (“the Act”), aimed to reflect the country's identity as a liberal constitutional democracy by providing for certain grounds for seeking divorce, including mutual consent. However, the state's 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 Shilpa Sailesh v. Varun Sreenivasan (2023) 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 Act's scheme, shows the presence of breakdown theory, and examines legal developments regarding IRB as a divorce ground, noting some limitations. It addresses objections from women's groups and calls for social reforms ensuring women's financial independence and reducing divorce stigma.
},
 year = {2024}
}

Copy | Download

TY  - JOUR
T1  - A Case for Statutorily Recognition of Irretrievable Breakdown of Marriage

AU  - Lokinder Sharma
Y1  - 2024/08/06
PY  - 2024
N1  - https://doi.org/10.11648/j.ijls.20240703.12
DO  - 10.11648/j.ijls.20240703.12
T2  - International Journal of Law and Society
JF  - International Journal of Law and Society
JO  - International Journal of Law and Society
SP  - 107
EP  - 111
PB  - Science Publishing Group
SN  - 2640-1908
UR  - https://doi.org/10.11648/j.ijls.20240703.12
AB  - 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 India's post-colonial enactment of the Hindu Marriage Act in 1955 (“the Act”), aimed to reflect the country's identity as a liberal constitutional democracy by providing for certain grounds for seeking divorce, including mutual consent. However, the state's 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 Shilpa Sailesh v. Varun Sreenivasan (2023) 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 Act's scheme, shows the presence of breakdown theory, and examines legal developments regarding IRB as a divorce ground, noting some limitations. It addresses objections from women's groups and calls for social reforms ensuring women's financial independence and reducing divorce stigma.

VL  - 7
IS  - 3
ER  -

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