Irretrievable breakdown of marriage as a ground for divorce is not a recognized ground under section 13 of HMA. However, there have been numerous cases where the High Court and Supreme Court have decided to practice their inherent powers and grant a divorce on the grounds of irretrievable breakdown of a marriage. In this article, we will cover some of the relevant judgments to comprehend the legal perspective on the ground of “Irretrievable Breakdown of Marriage “for the purpose of divorce. We will also go over in which cases the Supreme Court has practiced its inherent powers to dissolve couples’ marriage under such a ground of “breakdown of marriage” and the courts finding as to why it was necessary to dissolve such a marriage. The Delhi High Court in para. 18 of the Judgment in Harmeeta Singh v. Rajat Taneja, 2003 (2) RCR (Civil) 197, has ruled as follows:

“18. .. In the event that the marriage is dissolved by a decree in America, in consonance with principles of private international law which are embodied in Section 13 of the Civil Procedure Code, 1908, inter alia, this decree would have to be confirmed by a Court in this country. Furthermore, if the Defendant (Husband) were to remarry in the United States of America on the strength of the Decree of Divorce granted in that country, until this Decree is recognised in India he would have committed the criminal offence of bigamy and would have rendered himself vulnerable to be punished for bigamy. The confusion would be confounded insofar as the parties are concerned.”

The Supreme Court has stated that irretrievable breakdown of marriage is not a ground for divorce as it is not contemplated under section 13 and granting divorce on this ground alone would amount to adding a clause therein by a judicial verdict which would amount to legislation by court. That is if for the parliament to enact or amend the law and not for the courts. The Supreme Court in Vishnu Dutt Sharma v. Manju Sharma, 2009(2) R.C.R.(Civil) 506 : 2009(2) Recent Apex Judgments (R.A.J.) 542 : JT 2009 (7) SC 5, laid down the following dicta:

“10. On a bare reading of Section 13 of the Act, 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.

11. Learned counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned counsel for the appellant.”

The Hon’ble Supreme Court has granted divorce by exercising its inherent powers under Article 142 of the constitution of India for dissolution of a marriage. In R.Srinivas Kumar V. R.Shametha (Civil Appeal No.4696 of 2013), the relevant Para being reproduced asunder:

7. This court, in series of judgments, has exercised its inherent powers under Article 142 of the constitution of India for dissolution of a marriage where the court finds that a marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted. In the present case, admittedly, the appellant-husband and the respondent-wife have been living separately for more than 22 years and it will not be possible for the parties to live together. Therefore, we are of the opinion that while protecting the interest of the respondent-wife to compensate her by way of lump sum permanent alimony, this is a fit case to exercise the power under Article 142 of the Constitution of India and to dissolve the marriage between the parties.  

That in Saukendu Das V. Rita Mukherj (Civil Appeal No.7186 of 2016) the Supreme Court reiterated that Article 142 of the Constitution for dissolution of a marriage can be invoked where the court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted. That in Rupak Rathi v. Anita Chaudhary (P&H), the Punjab & Haryana High Court laid down principles pertaining to foreign judgments, the revenant Para being reproduced as under:

24. These principles are summarised for guidance of matrimonial courts functioning within the territories over which this court exercises jurisdiction but with a word of caution that they should be applied on a case to case basis while dealing with applications under Order 7, Rule 11 , CPC in the context of HMA and Section 13 CPC as it is not prudent to lay down any strait jacket formula of universal application and some free play in the joints of matrimonial courts should be left while dealing with different fact situations presented before them:-

(i) If the spouse aggrieved by the foreign matrimonial decree has not submitted to the jurisdiction of the foreign court or consented to the passing of the foreign Court judgment, it ought not to be recognised being unenforceable under Section 13 CPC. This position of law ought to be applied to the facts of the individual case.

(ii) There may be occasions that a spouse relying upon the judgment of a foreign matrimonial court, upon receipt of a summon or notice from a court of competent jurisdiction under the HMA, may not choose to file a written statement in response to a petition seeking a matrimonial cause under HMA in Punjab, Haryana or Chandigarh. Instead, the contesting spouse may prefer to move an application under Order 7, Rule 11 CPC seeking to rely upon or invoke the provisions of Section 13 CPC. Thus, it may be contended before the court of competent jurisdiction under the HMA that since the matrimonial action between the parties has already been decided and concluded by a Court in the foreign jurisdiction, the adjudication in the matter in issue between the same spouses based on the same matrimonial cause of action is barred by the principle of res judicata and spouses are estopped in law from agitating the same again.

(iii) It is respectfully contended that wherever both or any spouse arrayed in a matrimonial cause in a matrimonial action under HMA contest, dispute, question or oppose any above such application under Order 7, Rule 11 , CPC involving interpretation of the principles laid down under Section 13 CPC thereby necessitating requirement of detailed pleadings and evidence of spouses, no summary decision may seem possible to decide the matter in the preliminary stage.

(iv) In the above situation, there may also be circumstances involving application of issues of domicile as also applicability of Sections 1 and 2 of the HMA regarding extra territorial application of the provisions of HMA. Determination of these issues may also require parties to put their pleadings and testimony as well on the record of the Court of competent jurisdiction under the HMA.

(v) The application of the provisions of the CPC finding mention under Section 21 HMA, the Court of Competent jurisdiction under the HMA in Punjab, Haryana or Chandigarh may then be guided by the procedural law of pleadings contained in the Orders and Rules of the CPC and Punjab & Haryana High Court amendments, if any, for further proceedings in the matter. Accordingly, filing of a written statement, counter claim, rejoinder and/or other pleadings may be necessitated for having the factual matrix on record leading to the settlement of issues under Order 14 CPC which can only be framed upon allegations made by parties to be read along with the contents of documents produced by spouses. Hence, this procedure may be necessary to be adopted to decide upon the warring claims of spouses relying on averments in support or against the judgment of the foreign matrimonial court between the parties.

(vi) Based on the above procedural requirements, the Court of competent jurisdiction under the HMA may then examine the process, pleadings, grounds and other details in the passing of the judgment/decree of the matrimonial court of foreign jurisdiction to test it on the anvil of Section 13 CPC and based on the principles laid down by the Apex Court in Y. Narasimha Rao v. Y. Venkata Lakshmi, 1991 (3) SCC 451 and exception (iii) as understood in the present opinion. Hence, in the event of a contest, dispute, opposition to the applicability of the foreign matrimonial judgment in the Indian jurisdiction, a summary disposal may not be possible. To do complete justice to both the spouses and to ensure that prejudice has not been caused to either of them as also that issues of maintenance, settlement of matrimonial property, child custody etc. arising in India have been completely settled between spouses based on provisions of HMA, the Court of competent jurisdiction under the HMA may examine the matter on the lines suggested above.

(vii) Thereafter, if the issue relating to the jurisdiction of Competent Court under the HMA as also any bar to the matrimonial cause created by any existing law appears to be established, the matrimonial court in Punjab, Haryana or Chandigarh may upon the facts and circumstances of the case take an appropriate decision under Order 14, Rule 2 CPC whether it needs to pronounce judgment on all issues or decide the issue of jurisdiction or maintainability as a preliminary issue. In such circumstances, the Competent Court under the HMA may after forming an opinion take an appropriate decision on the facts of the case as to whether the issue of jurisdiction or maintainability is to be decided as a preliminary issue or pronounce judgment together on all the issues. Accordingly, based on the individual facts and circumstances, the Court ought to take a decision whether to decide the preliminary issue of jurisdiction or maintainability or postpone the settlement of other issues after such preliminary issues has been determined.

In conclusion, it can be stated that the High and Supreme courts have practiced their inherent power to grant a divorce to such couples on the ground of Irretrievable breakdown of marriage in those circumstances where the court is of the opinion that such marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably. However, such judicial decisions cannot be considered as precedents, and it would be wrong to suggest that Indian family courts have recognized “Irretrievable breakdown of marriage” as a ground for divorce.