Doubts on amendment of Hindu Marriage Act to include Irretrievable breakdown as ground of divorce

dear sanish ji, in several cases the supreme court hsd held that irretrievable breakdown is a sufficient groundd for divorce. but all those decisions have been impliedly overruled by a decision of supreme court pronounced on 27/02/2009 in vishnu dutta sharma v. manju sharma. inthis case the supreme court said that :

"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.

Hi Trapathi,

Thanks for the reply. please note that I asked the above questions based on not the existing DV act but the amendement recommended by law commission this week to include 'irretrievable breakdown' as new ground for divorce in Hindu Marriage Act. The proposed change is in news but no details about how to define 'irretrievable breakdown' or the proof required for the same. So please help.

Irretrievably broken means a marraige which can not be saved, which has become practically become dead. What has to be proved is that the relations between the parties have become such that  it is impossible for them to stay together as husband and wife. It is to be shown that the marriage has become a deadwood; there is no chance of reunion etc etc. There can be number of circumstances which make a marriage totally lifeless. In fact the earlier decision of the SC was sound.

Is there any minimum seperation period required to consider a marriage as Irretrievably broken? i mean if court gives importance to how long the parties lived together and how long they are living seperated. The law commission in 1974 recommended that the parties must be living seperated for atleast 5/10 years to consider the marriage as Irretrievably broken down. As far as I know,  no such time period/conditions are mentioned in the law commission report submitted last week recommeding the inclution of Irretrievably breakdown as new ground for divorce. So, does it mean that the previous recommendation of 5/10 years seperation requirement will also be part of this recommendation? What I would like to know that if this recommendation is accepted by government, what will be the min. required seperation period to consider a marriage as Irretrievably broken down? Or Can the court consider a marriage as Irretrievably broken down without considering seperation time but only other circumstances?

I agree with the views shared by our members.

If any one party, for whatever reason- justified or unjustified, doesnt want to live with the other person, it is irretrievable breakdown of marriage.

Strength of justification can be applied in division of common property, fixation of maintenance etc.