Chhattisgarh High Court
Case BriefsHigh Courts

   

Chhattisgarh High Court: In a case related to an appeal filed against the decision of the family Court, whereby an application filed by the husband seeking divorce was dismissed, Goutam Bhaduri, J. held that the marriage must be stand dissolved under S. 13 of the Hindu Marriage Act, 1955 (‘HMA’) by a decree of divorce primarily on the ground of customary divorce followed by the desertion of each other. Further, for a custom to have a colour of a rule of law, it is necessary for a party claiming it to plead the custom as ancientIn this case, the parties were married in 1982 and eventually a customary divorce was executed in 1994. As the customary divorce was not recognized by the employer of the parties, the husband filed an application under S. 13 HMA in 1995, wherein an ex-parte decree of divorce was passed. Subsequently, the appellant performed a second marriage and thereafter an application was filed by the wife under O. 9 R. 13 of Code of Civil Procedure, 1908 (‘CPC’) to set aside the earlier ex-parte decree.

The Family Court set aside the ex-parte decree. Thereafter, the initial suit continued and eventually it was dismissed by the impugned order. The wife further filed a civil suit for declaration with a prayer that customary divorce is bad in law and would not be operative, the suit was eventually dismissed and however the wife succeeded in the appeal. In such judgment the Appellate Court observed that since the appeal pertaining to same issue is pending before the High Court any finding given by the High Court would prevail over the finding of the appellate court.

The Court observed that “a plain reading of S. 29(2) HMA, clears that a marriage can still be dissolved in accordance with the custom governing the parties or under any other law providing for the same. The operating words of this section that ‘nothing contained in this Act shall be deemed to affect any right recognised by custom’ would lead to demonstrate that the provisions of the Act do not nullify the existence of any custom which confers a right on a party to obtain a dissolution of a Hindu marriage”.

It is further viewed that normally under HMA, the dissolution of a marriage by custom is not recognized but the saving clause of S. 29(2) recognises the customary divorce unless it is against the public policy.

The Court noted that the parties before execution of customary divorce were living separately for three years, and it was written that they cannot adjust with each other and hence decided to get separated. It also contains that both the parties would be free to remarry after the customary divorce and even the custody of the children was also decided. Further, there is no effort of any reunion till date, and they were living separately from past 28 years and the circumstances would show that there is irretrievable breakdown of the marriage and the parties have deserted each other, both mentally and physically.

The Court took note of the ruling in Bipinchandra Jaisinghbai Shah v. Prabhavati, 1956 SCR 838, and observed that “to establish desertion, there must be two essential conditions namely; (i) the factum of separation; and (ii) the intention to bring cohabitation permanently to an end

In the present case, the parties have separated for a long time and with the passage of time it do not show that there is any intention of reunion. Therefore, the Court held that Hindu marriage may be dissolved either under S.13 of HMA or under any special enactment in accordance with the custom applicable to the parties and S.29(2) HMA do not disturb the practice of customary divorce prevailing, before the Act came into force.

[Duleshwar Prasad Deshmukh v. Kirtilata Deshmukh, 2022 SCC OnLine Chh 1567, decided on 24.08.2022]


Advocates who appeared in this case :

Anurag Dayal Shrivastava, Advocate, for the Appellant;

B.P. Singh, Advocate, for the Respondent.

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay S. Agrawal, J., reversed the judgment of the trial court and granted divorce in an application filed by the husband, while granting Rs 15 lakhs permanent alimony to the wife.

Applicant-Husband had preferred an appeal under Section 28 of the Hindu Marriage Act, 1955 questioning the legality and propriety of the trial Court’s decision whereby the application seeking a decree for dissolution of marriage on the ground of desertion and cruelty was dismissed.

Questions for determination:

(i) Whether the Non-applicant – wife has deserted her husband since 12.08.2009 without any rhyme and reasons being assigned entitling the Applicant for the decree of dissolution of marriage on the ground of desertion under Section 13 (1) (ib) of the Act, 1955?

(ii) Whether the Non-Applicant – Wife has levelled the false allegations against her husband pertaining to the demand of dowry by lodging a false complaint under Section 498-A of IPC read with Section 4 of Dowry Prohibition Act entitling the Applicant for the decree of dissolution of marriage on the ground enumerated under Section 13 (1) (ia) of the Act, 1955?

Analysis and Decision

High Court on noting that the applicant was living with another woman, therefore, there was a reason as to why the non-applicant had started living separately from her husband.

Therefore, the husband failed to establish the fact that his wife had deserted him without any justifiable reasons so as to obtain a decree for dissolution of marriage on the ground of desertion under Section 13(1) (ib) of the Act, 1955.

Further, on close scrutiny of the wife’s statement, it was revealed that the wife was never subjected to cruelty with regard to the demand of dowry as no evidence was led by her in this regard. Hence, the alleged complaint by the non-applicant was false.

Court added that the alleged marriage of the husband and wife had irretrievably broken down and was dead for all purposes.

The husband and wife were not only living separately for over more than 11 years, but a false criminal case was also found to be lodged by the non-applicant-wife against her husband, which caused mental cruelty to him.

Therefore, the husband would be entitled to get a decree for dissolution of marriage on the ground enumerated under Section 13 (1) (ia) of the Act, 1955 and, the finding of the trial Court declining to grant a decree for divorce on the ground of cruelty was accordingly set aside and the applicant was held to be entitled to a decree for divorce under Section 13 (1) (ia) of the Act, 1955.

With regard to the alimony, Court stated that, by considering the conditions prescribed under Section 25 of the Act, 1955 relating to claim of permanent alimony/maintenance and considering further the fact that the Non-applicant – wife has no independent source of income and that by taking note of the income of the Applicant – husband as reflected and observed from the details furnished coupled with the period of marriage, the ends of justice would be served by fixing amount of permanent alimony/maintenance at Rs 15,00,000 in lump sum payable to the non-applicant wife.

In the above direction, Court added that the applicant shall be entitled to deduct the maintenance amount from the permanent alimony.

In view of the above, the appeal was allowed. [Vasudev Prajapati v. Sunita Kumari, FA (M) No. 9 of 2015, decided on 28-4-2022]


Advocates before the Court:

For Appellant: Shri Manoj Paranjpe appears along with Shri Anurag Singh and Shri Subhank Tiwari, Advocate.

For Respondent: Shri H.B. Agrawal, Sr. Advocate along with Shri Amit Tirkey, Advocate.

Case BriefsHigh Courts

Delhi High Court: In a matter of dissolution of marriage, the Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., expressed that husband and wife together can deal with any situation, if one gets weak or breaks, the whole crashes down.

Husband preferred an appeal under Section 19 of the Family Courts Act, 1984 to quash and set aside the judgment passed by the Family Court.

On grounds of continuous acts of cruelty, the divorce petition was preferred by the wife and the family Court had allowed the said petition against the husband by the impugned judgment.

Husband stated that the issues which require adjudication in the present matter are as follows:

(i) Whether the Family Court was right in striking off the defence of the appellant?

(ii) Whether the respondent/wife was able to prove the charge of cruelty with cogent evidence against the appellant/husband before the Family Court?

Analysis and Discussion


High Court noted while rejecting the plea of the husband that fresh documents cannot be filed at the stage of evidence and are required to be filed along with a reply or written statement.

Order 8 Rule 1A (1) of Civil Procedure Code, 1908 (hereinafter referred to as CPC) mandates the defendant to file the documents in his possession at the time of filing the written statement. In case the defendant fails to file such documents at the time of presenting the written statement, then the same shall not be allowed to be received in evidence on behalf of the defendant.

Section 14 of the Family Courts Act, 1984 empowers the Family Court to receive any evidence, whether or not the same is relevant or admissible under the Indian Evidence Act if, in its opinion the same would assist it to deal effectually with the dispute before it. 

The Bench stated that, the appellant failed to comply with various orders of this Court, as well as of the Supreme Court, and the Family Court qua payment of the maintenance and preferred to indulge in frivolous litigations instead of paying the outstanding maintenance amount. The appellant was directed by this Court to deposit the maintenance amount.

In Court’s opinion, the Family Court was justified in striking off the defence of the appellant.

High Court cited the Supreme Court’s decision in V. Bhagat v. D. Bhagat, (1994) 1 SCC 337, wherein it was dealing with the divorce petition filed by the husband which he amended later from adultery to cruelty.

The Family Court in the present matter had granted divorce to the respondent under Section 13(1)(ia) of the HMA solely relying on the ground of “mental cruelty‟.

Remarking that “Husband and wife are two pillars of the family”, High Court held that, when one pillar gives up and puts all the burden on the other pillar, then it cannot be expected that one pillar will single-handedly hold the house together.

Hence, Court upheld the observation of the Family Court on noting that the husband had put the entire burden on the wife to manage the house, her job, and look after the children and he failed to discharge his duties as a husband and especially as a father.

Lastly, the High Court found that the bond between the parties has irretrievably broken down and wife was subjected to repeated harassment by the husband. Therefore, the wife had well established the ground of mental cruelty by the husband in light of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511.

In view of the above, the present appeal was dismissed. [Sunil Kumar Sharma v. Preeti Sharma, 2022 SCC OnLine Del 1263, decided on 2-05-2022]


Advocates before the Court:

For the Appellant:

Md. Azam Ansari, Advocate with Mr Ashfaque Ansari, Advocate

For the Respondent:

Mr Gaurav Goswami with Mr Tarun Goomber and Mr Pankaj Mendiratta, Advocates

Op EdsOP. ED.

Unlike other family laws, under Hindu law marriage is considered to be a sacred rite. In any case, marriage is still an agreement, and it, like all other types of agreements, may be terminated. Divorce is the process of dissolving a marriage or marital bond in accordance with the legislation controlling the individuals in accordance with the personal law respectively applicable to them.[1]

As the socio-economic condition of the spouse improved with the advancement of society, they also grew to be more self-reliant and independent. They are willing and ready to live apart rather being tied and living together while being dissatisfied with their marital relationship.[2] Furthermore, with the steady progress of education, communication technology, and rising level of understanding, the societal stigma of divorce is rapidly fading in the current day.  Divorce rules have been noticeably liberalised in line with this shift, particularly under the Hindu Marriage Act of 1955[3].

Furthermore, the study of the implementation of these divorce laws that evolved over the last few decades indicates that getting a divorce on the mere basis of a marital ground or on the grounds based on “fault-based theory” recognised by law is not only time taking and nerve-racking, but it also includes a huge amount of both mental and physical agony by inducing harassment and shame on both the parties. And if, after such a lengthy and exhaustive struggle, the evidence fails to prove the marital fault, the petitioner is not only denied the remedy demanded but it also leads to severed ties between the two parties due to the allegations and harassment faced due to trials.[4]

Thus, in order to avert such unfortunate circumstances, the Law Commission of India proposed “irretrievable breakdown of marriage” as a separate cause for obtaining divorce in 1978. The condition for such a breakdown was established as a point of separation with very little chance of reunion.

In its 71st Report, the Law Commission of India has firmly recommended that “irretrievable breakdown of marriage” should be included as a separate ground for obtaining divorce under the Hindu laws. Further, it also emphasises on the separation period of around three years as a criterion of breakdown.[5] On the basis of the Report, the Marriage Laws (Amendment) Bill, 1981 was accordingly introduced in Parliament but it later lapsed due to the continuous and persistent opposition it received from few women organisations.

This was followed by the series of large number of debates regarding both advantages and downsides to determine whether to include “irretrievable breakdown marriage” as a separate ground of marriage, but ultimately it had to be withdrawn due to continuous high level of resistance. Though “mutual consent” as a ground for divorce, on the other hand, has already been included in various personal laws to give speedy relief to the aggrieved parties to some extent.[6]

The major consideration of the opposition in regard to inclusion of “irretrievable breakdown of marriage” as a separate ground for dissolution of marriage is that the ground of “divorce by mutual consent” under the Hindu Marriage Act already encompasses the arena concerned and the inclusion of the former ground would only lead to complexity of the system for both the courts and the pleading parties.

But at this point it should be noted that “mutual consent” as the name suggests, requires the consent of both the parties. If even one of the parties decides to not cooperate, the above ground does not hold any validity and even the courts do not have any right of imposing the divorce decree on them. While the “irretrievable breakdown of marriage”, on the other hand, is a ground for the court to consider the stability of the relationship and if the court determines on the basis of the facts of the case that the marriage by means cannot be restored or saved and even if it does get restored it would only hamper the relation between the parties, then in that case the divorce can be pronounced.[7]

If we look into Naveen Kohli v. Neelu Kohli[8], we can observe that the Supreme Court itself advised the Government to carefully consider incorporating “irreversible breakdown of marriage” as a reasonable ground for granting divorce under the Hindu Marriage Act, 1955.

Marriage is indeed considered as a sacrament under the Hindu laws and is supported very well with the help of legal ties, but by refusing to break those ties when their binding becomes unbearable, the law in such cases no more ensures the sanctity of the marriage rather it becomes mere legal obligation for the parties. It indicates a lack of consideration for the emotions and beliefs of the parties. Divorce laws protect the parties from such meaningless obligations by allowing them to break their marital ties. It is pointless to keep two people bound by a marriage connection if they cannot live peacefully together.

If we consider various scenarios where the wedlock has broken down because the parties are living apart, or the wife has only lived in the matrimonial home for a few months after marriage, or the wife has made mere allegations of cruelty and desertion against the husband, and the husband has made counter-allegations against her, or any other scenario where the parties have fallen apart from their marital relationship and their marriage thus, remains irretrievably broken, then in these cases, it is in the interest of justice that a decree of divorce is granted so that both parties can live apart but in peace.

Sections 13(1-A)[9] and 13-B of the Hindu Marriage Act, 1955 are considered to be inadequate to counter each and every situation concerning remedies in marriage. Under the fault grounds of divorce theory, though the marriage may have been broken down, the parties are expected or largely compelled to live with each other in the wedlock.

Divorce should not be seen as mere tool of breaking the sacrament ties rather it should be considered as a solution and majorly an escape route to move out of an unbearable situation created due to high level of tensions and uncertainty in the wedlock making it impossible to stay in it. Such a divorce does not concern itself with the wrongs of the past, but rather with bringing the parties and children to grips with the new situation and development by working out the most satisfactory basis on which to regulate their relationship in the changed circumstances.[10]

Is there any sort of justifiable way in which the parties to the marriage can be compelled to continue their marital life with the consort after the excess of the sufferings and the harassment? It is fairly evident that nothing could be achieved by trying to keep the parties tied forever to a marriage that in fact has ceased to exist between the parties themselves. Human life has a limited ability to focus, circumstances causing harassment cannot be permitted to proceed endlessly. Law cannot deliberately ignore such circumstances, nor would it be able to decrease to give satisfactory reaction to the necessities emerging subsequently.

The parties in N.G.Dastane v. S. Dastane[11] fought for more than ten years. The petition raised by the husband for demanding the judicial separation was duly dismissed by the court on “technical grounds of condonation”. The marital relations between the parties in this situation were completely destroyed. This case clearly emphasises on the importance of inclusion of “irretrievable breakdown of marriage” as an independent ground for dissolving the marriage under Hindu laws.  Moreover, it is also observed that the young children who are also major sufferers stuck in the middle of the irretrievable marriage of their parents, will be somewhat better off with one loving parent rather than staying with two parents who are most of the time engaged in arguments with each other causing mental trauma to the kids.

A large number of the developed nations have perceived “irretrievable breakdown of marriage” as a separate ground for divorce proceedings. Thus, unmistakably dissolving of the marital ties has remained under a strict scrutiny and evolution in every one of the overall sets of laws of the world. Divorce laws have been changed over the period of time so that the wedded couples who wish for the dissolution of their matrimonial relations have less lawful difficulties and get fast legal remedy.

Over the period of time the Supreme Court has indeed granted the remedy of dissolution of marriage in numerous cases, not merely because of presence of either adultery, cruelty, or desertion, but also on the mere ground of irretrievability where the sacred tie of marriage between the two parties had entirely broken down; lost its trust, love, and care for the opposite parties; had a severe emotional breakdown; failed to manage their respective feelings; and lastly when even any other alternate way could not restore or preserve the marriage concerned. Though there is no specific provision for “irretrievable collapse of marriage”, the Supreme Court has, over the period of time, used its jurisdiction conferred by Article 142 of the Constitution[12]to administer required absolute justice for the parties in marital procedures. The Court, further, felt that in extreme instances where the parties are not only involved in accusing each other, but when the very basis of their marital relationship has collapsed and cannot be rebuilt at all by any available way, the Court must provide for the decree of dissolution of marital relations on the grounds of “irretrievable breakdown of marriage”.[13]

Irretrievable breakdown did not go on to formally become law, but acquired informal validity as a principle evoked in a number of judicial decisions granting divorces. The resultant legal confusion was one of the main reasons the Law Commission took up the question again as a suo motu issue, with the 217th Law Commission of India Report[14] in March 2009 recommending (again) that irretrievable breakdown be added as a ground of divorce to existing provisions.

The fact to be considered here is that when a marriage is broken without being able to be revived, it is quite unrealistic for the law to fail to notice the irretrievable breakdown of same, which is not only harmful to society but also to the interests of the parties. Therefore, the judiciary took the firm stand on considering the necessity of including “irretrievable breakdown of marriage” as an independent ground for divorce and thus, over the period of time has been able to do the justice in at least some of the cases, but there still remains the major gap due to non-existence of proper laws on the same.

Therefore, it is now high time to evaluate and amend the Hindu Marriage Act of 1955 and the Special Marriage Act, 1954[15], and to take immediate steps to include the “irretrievable breakdown of marriage” as one of the grounds of dissolving the marriage between the two parties.


*Second year student, Maharashtra National Law University, Nagpur. Author can be reached at  iolishukla@nlunagpur.ac.in,

[1] Paras Diwan and Peeyushi Diwan, Family Law, 194-197 (Allahabad Law Agency, 1998).

[2]Vijender Kumar and Vidhi Singh, Divorce by Mutual Consent Among Hindus: Law, Practice and Procedure, 1 CLR 1, 1-16 (2017).

[3]Hindu Marriage Act, 1955.

[4]Kusum, Divorce by Mutual Consent, 29 JILI (1987) 110, 110-114. .

[5]Law Commission of India, Report No. 71 on The Hindu Marriage Act, 1955 — Irretrievable Breakdown of Marriage as a Ground of Divorce,  (1978); Also see Law Commission of India, Report No. 271 on Irretrievable Breakdown of Marriage — Another Ground for Divorce,  (2009).

[6] Hindu Marriage Act, 1955, S.13-B; Parsi Marriage and Divorce Act, 1936, S.32-B; Divorce Act, 1869, S.10-A; Special Marriage Act, 1954, S.28.

[7] Vijender Kumar, Irretrievable Breakdown of Marriage: Right of a Married Couple, (2010) 5 NSLR 15, 18-22.

[8](2006) 4 SCC 558.

[9]Hindu Marriage Act, 1955, S. 13(1-A).

[10] Vijender Kumar, Irretrievable Breakdown of Marriage: Right of a Married Couple, (2010) 5 NSLR 15, 18-22.

[11](1975)2 SCC 2 326.

[12]Constitution of India, Art. 142.

[13] Vijender Kumar, Irretrievable Breakdown of Marriage: Right of a Married Couple, (2010) 5 NSLR 15, 18-22.

[14]Law Commission of India, Report No. 217 on  Irretrievable Breakdown of Marriage — Another Ground for Divorce (2009).

[15]Special Marriage Act, 1954.

Case BriefsSupreme Court

Supreme Court: While deciding a case of a matrimonial dispute where the marriage never took off from the first day and was never consummated and the parties had been living separately from the date of marriage for almost 20 years, a Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ. passed a decree of divorce in favour of the husband on account of irretrievable breakdown of marriage as well as on account of cruelty committed by the wife.

Background

It appeared that the appellant-husband and respondent-wife had a crash landing at the take-off stage itself. The appellant claimed that the respondent’s view was that she had been coerced into marrying the appellant without giving her consent and left the marriage hall at night. An endeavor by the relatives of the appellant to persuade her on the very next day to live with appellant was also not fruitful. The marriage was never consummated. In such view, the appellant issued a notice seeking divorce on the ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act.

Respondent filed a petition for restitution of conjugal rights soon after the issuance of the notice. She submitted that it was the appellant who refused to cohabit with her, since her family was unable to fulfil the appellant’s demand for dowry.

After 5 years, the decree of divorce on the ground of irretrievable breakdown of marriage was granted by the trial court and after 6 days of the said decision, appellant got married the second time. The respondent preferred the appeal and the appellate Court set aside the decree of divorce while allowing the petition for restitution of conjugal rights. Thereafter, the High Court restored the decree of divorce granted by the trial court and each stage of scrutiny took 5 years, and 15 years passed in the litigation. This inter alia posed a question mark on status of second marriage of the appellant.

Later, the respondent filed a review petition on the ground that it was not within the jurisdiction of the High Court or trial court to grant a decree of divorce on the ground of irretrievable breakdown of marriage. The review petition was allowed and the same was assailed in the present appeal.

Analysis, Law and Decision

Supreme Court noted that the ground of irretrievable breakdown of marriage does not exist as a ground of divorce under the Hindu Marriage Act. The Bench referred to several judicial precedents including Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, which opined that courts can dissolve a marriage as irretrievably broken down only when it is impossible to save the marriage, all efforts have been made in that regard, the court is convinced beyond any doubt that there is actually no chance of the marriage surviving, and it is broken beyond repair. The Bench expressed:

“… Living together is not a compulsory exercise. But marriage is a tie between two parties. If this tie is not working under any circumstances, we see no purpose in postponing the inevitability of the situation …”

Incidental question in the present matter was, whether the respondent’s conduct after the initial trigger for divorce amounted to mental cruelty?

Respondent after succeeding before the appellate court lodged a criminal complaint against the appellant under Section 494 of Penal Code, 1860 even though an appeal was pending before the High Court. There were episodes of further harassment by the respondent even at the workplace of the appellant including insulting the appellant in front of students and professors. The respondent also threatened the appellant of physical harm in front of his colleagues.

Supreme Court held that the continuing acts of the respondent would amount to cruelty even if the same had not arisen as a cause prior to the institution of the petition, as was found by the trial court. It was observed:

“The marriage having not taken off from its inception and 5 years having been spent in the Trial Court, it is difficult to accept that the marriage soon after the decree of divorce, within 6 days, albeit 6 years after the initial inception of marriage, amounts to conduct which can be held against the appellant.”

The Court was of the opinion that both the grounds of irretrievable breakdown of marriage and cruelty would favour the grant of decree of divorce in favour of the appellant. Hence, a decree of divorce dissolving the marriage between the parties be passed not only in exercise of powers under Article 142 of the Constitution of India on account of irretrievable breakdown of marriage, but also on account of cruelty under Section 13(1)(i-a) of the Act in light of the subsequent conduct of the respondent during the pendency of judicial proceedings at various stages.

In view of the above discussion, decree of divorce was passed and the marriage stood dissolved. [Sivasankaran v. Sathimeenal, 2021 SCC OnLine SC 702, decided on 13-09-2021]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Manmohan and Sanjeev Narula, JJ., refused to set aside the order of the trial court granting divorce to the respondent-husband.

In the instant appeal, Appellant-wife impugned the Judgment passed by Principal Judge, Family Courts whereby the Court while rejecting the relief sought under Section 12(1)(a) and (c) has allowed the petition of the respondent by granting divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

CRUELTY

Trial Court dissolved the marriage between the parties on the ground of cruelty within the meaning of Section 13(1)(ia) of the HMA.

IMPOTENCY

The nature and the extent of allegations made by the appellant are beyond any controversy. Appellant laid down the allegations under two different compartments:

(i) allegations pertaining to the impotency of the Respondent, and

(ii) allegations with respect to mistreatment, torture and dowry demand against the Respondent and his parents.

The above-stated allegations laid the foundation for the ground of cruelty.

Further, the respondent had brought in evidence to establish before the Court that he was not impotent and the false and untrue allegations were causing him mental stress and amounted to cruelty.

On physical examination by the doctor, the respondent was found to be a normal male adult with fully developed secondary sexual character and organs, normal endocrine and sexual function, and had no problem of impotence.

Trial Court concluded that the credibility of the witness could not be impeached, and since respondent suffered no medical infirmity that could render him incapable of consummating the marriage, the allegation of impotence made by the respondents was not proved.

DECISION

Bench stated that, since the witness was a very highly qualified medical expert with immaculate credentials, his testimony was rightly relied upon by the Trial Court, hence no interference by this Court is required.

Court agreed with the observations of the trial court and stated that the accusations were levelled by the appellant and the onus lay on her to establish the veracity of the same.

Appellant entirely failed to produce any medical or corroborated evidence that could remotely suggest that the respondent was medically unfit to consummate the marriage.

Next Question:

Whether a false allegation of impotence amounted to cruelty within the meaning of Section 13(1)(ia) of the HMA?

Cruelty can be physical or mental. High Court stated that it is primarily contextual, pertaining to human behaviour or conduct with respect to matrimonial duties and obligations.

Bench observed that it is essential to see whether the conduct of the party is of such nature, that a reasonable person would neither tolerate the same, nor be reasonably expected to live with the other party.

Decision of the Supreme Court in V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 was relied upon, wherein it was held that:

“Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together.”

“…What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”

ALLEGATIONS MADE IN PLEADINGS

Bench stated that it is no longer res Integra that false, baseless, scandalous, malicious and unproven allegations in the written statement may amount to cruelty.

“If it is established from the evidence that the allegations were evidently false, then such baseless allegations made in the written statement can amount to cruelty and the Court can pass a decree of dissolution of the marriage.”

In view of the above, Court found no infirmity in the trial court’s observations that the allegation of the Appellant in the Written Statement with respect to the impotency clearly falls within the concept of cruelty as defined under the law.

Bench also observed that,

There can be no justification for any party to retaliate by making untrue and false allegations regardless of how provocative the allegations may be. If the Appellant was hurt by the allegations made by the Respondent, she had her legal remedies against the same. It did not certainly give her a carte blanche to make counter-allegations which were untrue and cause deep humiliation to the Respondent.

Adding to the above, Court stated that the imputations and allegations made by the Appellant in the Written Statement were repeatedly reinforced during the trial by giving suggestions to the Respondent and also to his expert witness during the course of their cross-examinations.

Bench held that,

The cruelty in the instant case is of enduring and profound nature.

Concluding the instant matter, Cout held that the appellant and the respondent have been separated for more than eight years and since the separation continued for a sufficient length at time, it can be presumed that the marriage has irretrievably broken down.

It was found that a prolonged and continuous separation and the matrimonial bond was beyond repair. Therefore, refusing to severe the matrimonial ties would cause further mental cruelty to the Respondent.

Hence, the trial court’s conclusion could not be faulted with. [Kirti Nagpal v. Rohit Girdhar, 2020 SCC OnLine Del 1466, decided on 20-11-2020]


Advocates for the parties:

Appellant: Manish Sharma, Ninad Dogra and Jigyasa Sharma

Respondent: Prabhjit Jauhar

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Subramonium Prasad, JJ., while observing a matrimonial application, observed that,

The plaint must be read as a whole to determine as to whether it discloses a cause of action.

In the instant matter, the husband/appellant sought to challenge the Order passed by Family Court dismissing an application filed by him under Order VII Rule 11(a) and (d) read with Order XIV Rule 2(2) of the Code of Civil Procedure.

Quick Glance — Fact of the Case

Husband and Wife had gotten married as per the Sikh rites and Hindu Vedic rites and ceremonies.

Appellant a US citizen had moved to that country with his parents in the year 1994. After the marriage, respondent/wife applied for permanent resident status.

Petition for Divorce

Appellant/husband and respondent/wife came to India with their child, while they were in India, respondent/wife filed a divorce petition under Section 13(1)(i–a) of the Hindu Marriage Act.

Husband/appellant on returning to USA alone filed for a divorce petition in Chicago, USA. He was granted an ex parte divorce on the ground of irretrievable breakdown of marriage.

Custody of Child

Appellant/Husband also approached the Circuit Court of Cook County, Illinois, USA for the custody of the child which was granted to him ex parte.

Writ of Habeas Corpus

Further, the appellant/husband had filed a writ petition in Delhi High Court for issuance of a writ of habeas corpus for the production and custody of the minor child.

On being aggrieved with the above, wife approached the Supreme Court which was allowed with directions to the parties to appear before the Family Court for the decision in regard to the custody of a minor child.

Order VII Rule 11 CPC

Appellant/Husband had moved an application under Order VII Rule 11 CPC for seeking rejection of the said petition on the plea that the provisions of the Act would apply to persons who are outside the territory of India only if they are domiciled in India.

Since the husband/appellant was domiciled in USA, only the wife/respondent was domiciled in India, the Act is not applicable to them.

Pre-Nuptial Agreement

Husband also contended that prior to their marriage, they had entered into a pre-nuptial agreement, hence they will be governed under that.

Family Court had dismissed the application filed by the appellant/husband under Order VII Rule 11 CPC and stated that appellant/husband cannot be allowed to selectively refer to the pleadings of the respondent/wife.

Further, the family court held that it is for the Court to determine as to whether the facts of a case conclusively establish that the respondent/wife had acquired US Domicile, Family Court rejected the stand of the appellant/husband that the divorce petition filed by the respondent/wife is barred by law.

Counsel for the appellant/husband Prabhjit Jauhar and Malvika Rajkotia, Counsel for the respondent/wife.

Analysis & Decision

A meaningful reading of the entire plaint must be conducted for the court to satisfy itself as to whether the averments made therein if taken to be correct in their entirety, would result in a decree being passed.

For the above-stated position, several Supreme Court’s Decisions were relied on including  in T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467,

Popat and Kotecha Property v. State Bank of India Staff Assn., (2005) 7 SCC 510:

There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint.

Hardesh Ores (P) Ltd. v. Hede & Company, (2007) 5 SCC 614:

The averments made in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order VII is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense.

Court in view of the above observed that,

A plaint cannot be rejected on the basis of allegations levelled by the defendant in the written statement or for that matter, in an application moved under Order VII Rule 11 CPC.

The Court must be mindful of the underlying object of Order VII Rule 11 CPC which is to nip in the bud, irresponsible and vexatious suits.

In the instant matter, it has to be determined as to whether the divorce petition filed by the respondent/wife deserves to be rejected or not.

Section 19 of the Hindu Marriage Act offers multiple options as to the local District Court where a Divorce petition can be presented. It includes the place where the marriage of the parties was solemnized or where the respondent resides at the time of presentation of the petition or in case the wife is the petitioner, where she is residing on the date of presentation of the petition or where the petitioner is residing at the time of presentation of a petition in a case where the respondent at that relevant point in time, is residing outside the territories to which the Act extends, as contemplated in Section 1(2).

The Supreme Court decision in Neeraja Saraph v. Jayant V. Saraph, (1994) 6 SCC 461, brought the need for legislation to protect spouses who had been deserted outside the country, wherein the issue that was highlighted was to protect the rights of women deserted by NRI husbands and faced decrees of the annulment of marriage from foreign courts.

Concept of ‘Resident’ and ‘Domicile’:

Union of India v. Dudh Nath Prasad, (2000) 2 SCC 20:

“27. ………..The classical division of domicile is well known. There are the domicile of origin, the domicile of choice and the domicile of dependence. There has been little change in the essential concept of these three domiciles…

28. In view of the above, the concept of “domicile” as canvassed by learned counsel for the appellants with reference to change of nationality or change of domicile from one country to another, cannot be imported in the present case. Moreover, “Domicile” and “Residence” are relative concepts and have to be understood in the context in which they are used, having regard to the nature and purpose of the statute in which these words are used.

(emphasis supplied)

Bench stated that under Order VII Rule 11, CPC, the court can only scrutinize the contents of the plaint taken as a whole but it cannot consider the evidence, if any, or the pleas taken in the written statement.

In the instant matter, the respondent/wife categorically stated in her petition that she wanted to reside in India. After the amendment to the Act in the year 2003 and on insertion of sub-clause (iiia) in Section 19, it cannot be said that Family Courts in Delhi are not vested with the jurisdiction to try and entertain the divorce petition filed by the respondent/wife.

High Court held that the appellant/husband cannot raise an objection to the respondent/wife initiating proceedings of divorce in India under the provisions of the Act only because he is a US citizen and domiciled in the USA.

In the instant case, the respondent/wife remains a citizen of India and therefore, is a domicile of India for all intents and purposes. She has chosen to approach the courts in India for obtaining a decree for divorce.

Divorce petition filed by the respondent/wife read as a whole, does disclose a valid cause of action that can be entertained by the Family Court in India.

No infirmity was found in the impugned judgment. [Karan Goel v. Kanika Goel, 2020 SCC OnLine Del 1319, decided on 12-10-2020]

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: A Division Bench of S. Talapatra and S.G. Chattopadhyay, JJ., upheld the decision of the trial court and stated that the present matter is a case of an irretrievable breakdown of the marriage in light of cruelty and desertion.

Cruelty & Desertion | Dissolution of Marriage

Allegations of cruelty and desertion were placed against the wife by the husband in light of which the husband approached the Family Court under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce.

Family Court dissolved the marriage.

Aggrieved wife preferred the present appeal under Section 28 of the Hindu Marriage Act, 1955 read with Section 19 of the Family Courts Act, 1984 challenging the legality of the impugned Judgment of the Family Court.

Court considers in the present case whether the grounds of cruelty and desertion against the respondent-wife, the appellant herein, existed on the date of filing of the divorce petition or not.

From the pleadings of the parties and their evidence, it would appear that the respondent-wife left her matrimonial home along with her daughter and she did not live with her husband at any point of time till the petition was filed by her husband on seeking a divorce and even thereafter.

The witnesses of the petitioner including two of his neighbours had categorically asserted that they did not notice any untoward incidents preceding to the departure of the respondent-wife from her matrimonial home.

Further, the bench stated that on perusal of the parties and their evidence discussed, no material was found to show that the respondent-wife was ever forced by her husband to leave his company or that she was thrown away from her matrimonial home.

Wife prosecuted her husband and his relatives under Section 498A IPC which was proved to be unfounded in the Sessions Court as well as in the High Court.

Institution of a complaint under Section 498-A IPC against the husband does not ipso facto constitute mental cruelty unless the court having assessed the totality of the facts and circumstances and also having taken note of the nature of the allegations come to the conclusion that amongst other things the wife also brought unfounded and scandalous allegations with a clear intention to humiliate the husband and his relatives and such conduct of the spouse caused disappointment and frustration in the other spouse.

Whether such conduct of the respondent-wife amounted to the desertion of her husband and caused mental cruelty to him and entitled him to a decree of divorce.

There cannot be a straight-jacket formula for determining cruelty in matrimonial relationships. Whether the alleged conduct of the spouse constitutes cruelty has to be judged in the particular context of the case keeping in view all the attending facts and circumstances of the case.

In the present matter, the petitioner proved that his wife abandoned him along with her daughter when he lost his vision and was in dire need of their company and the support of his wife.

Such conduct of the wife must have hurt the sentiment of the petitioner husband and affected their relationship. After abandoning her husband, she labeled allegations of harassment for dowry against her husband in a proceeding under Section 498A IPC followed by a proceeding under the Protection of Women from Domestic Violence Act.

The unprovoked humiliating treatment by the wife to her husband caused cruelty to the husband.

Apex Court, while laying down the broad parameters for determination of mental cruelty for the purpose of granting divorce in Samar Ghose v. Jaya Ghose, (2007) 4 SCC 511 reiterated the same principle and held as follows as one of the parameters:

“101…(xiv) Where there has been a long period of continuous separation, it may fairly be concluded 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. In such like situations, it may lead to mental cruelty.”

Hence, in the present matter, both the grounds of cruelty and desertion existed on the date of filing of the divorce petition. Moreover, there is no denial of the fact that the husband and the wife are staying apart for more than 13 years and during this period they never lived together at any point of time.

Therefore, the present matter is a case of an irretrievable breakdown of marriage and it is quite impossible to save the marriage.

 Trial Court’s decision is upheld and the husband is directed to pay a monthly maintenance allowance for his wife and daughter.[Aparna Dey v. Alok Dey, 2020 SCC OnLine Tri 411, decided on 09-09-2020]

Case BriefsHigh Courts

Delhi High Court: A Bench of Jyoti Singh and G.S. Sistani, JJ. allowed an appeal filed by the husband against the decision of the family court whereby it had granted a decree of judicial separation under Section 10 of the Hindu Marriage Act, 1955 instead of a decree of divorce as prayed for by the husband in a divorce petition filed under Section 13(1)(i-a) and (iii).

The husband had alleged various incidents of cruelty against the wife. But the same were held to be omnibus allegations by the trial court. However, the trial court was of the view that a case for granting a decree of judicial separation was established and therefore it passed the impugned order. The High Court upheld most of the findings of the trial court. However, it was held that the allegation in relation to the criminal case filed by the wife against the husband amounted to matrimonial cruelty. The husband was working in the Indian Air Force when the criminal case under various sections IPC including Section 498-A was filed. He had to undergo imprisonment for 111 days. However, the wife did not appear in the trial and the husband was ultimately acquitted. It was noted that the case was filed on the advice and under pressure of her brother. However, due to the imprisonment, the husband was not granted extension in his employment with the Indian Air Force which jeopardized his career and he suffered a great loss of reputation.

Apart from that. the parties were living separately for 15 years. There was no scope of reconciliation. The gap between them could not be bridged. It was observed: “the marriage has irretrievably broken down. While this may not be a ground for divorce under the Hindu Marriage Act, 1955 but in cases where the marriage is seen to be beyond repair, the courts have taken this as an important circumstance amongst other grounds including cruelty to severe the material tie. Marriage is an institution which is based on love, faith and trust and sentiments and emotions for each other. But if the parties have lost these virtues for each other, an artificial reunion is of no consequence.” It was noted that although the wife suffered remorse and regret her follies, she seemed to be undecided on what she wants in life. Even though she might want to go back, the husband was not willing to stay with her at all. Their marriage had reached a stage beyond salvage. Therefore, due to the cruelty inflicted upon the husband by causing his wrongful imprisonment, coupled with an irretrievable breakdown of the marriage, the Court granted a decree of divorce. [M.S. v. S.D., 2019 SCC OnLine Del 8234, decided on 23-04-2019]

Case BriefsHigh Courts

Madras High Court: A Bench comprising of V.M. Vellumani, J. has held in the case of matrimonial dispute regarding the irretrievable breakdown of marriage as a ground for divorce valid.

In the present case, the appellant has averred various incidents, by which, the respondent has repeatedly caused mental agony and cruelty to the appellant. The learned counsel for the appellant stated that the respondent has admitted in his evidence that he put up 10 locks, not 22 locks to lock the home. Any normal prudent man would not put 10 locks to lock the home. This fact coupled with the fact that the respondent was friendly with the parents of the appellant in their presence and talked about them shows mental illness of the respondent.

Thus, the appeal has been filed by the wife claiming for divorce on the grounds of mental cruelty and the fact that both the appellant and respondents have been living separately for more than ten years. The respondent is alleged to be mentally ill as well.

“Marriages are made in heaven. Both parties have crossed the point of no return.”

-Durga Prasanna Tripathy v. Arundhati Tripathy; (2005) 7 SCC 353

According to Hindu Law, irretrievable breakdown of marriage is not considered as a valid ground for divorce but this court, following the precedents, has held irretrievable breakdown of marriage a valid ground for divorce. To prevent the appellant from more cruelty, the appeal of divorce has been allowed. Furthermore, this Court has also dismissed the claim filed by the respondent for the restitution of conjugal rights. [Salome v. Prince D. Immanuel, 2017 SCC OnLine Mad 1651, decided on 06-04-2017]

Case BriefsHigh Courts

Madras High Court: A Single Judge Bench comprising of P. Devadass, J. directed Family Court Chennai to dispose of the interim petition of maintenance by throwing light on the sufferings that women and children have to undergo during such proceedings and due to the unnecessary delay in disposal.

In the present case, petitioner and respondent were married and had later separated due to an unhappy married life. Initially, the husband had sought divorce on grounds of cruelty in the subordinate court, Dindigul which was transferred to family court, Chennai. Further, the wife had filed for pendent lite both for her daughter and herself under Section 24 of the Hindu Marriage Act, 1955. It has been stated that the maintenance petition was adjourned due to counter being filed by the husband. Thus, the wife-petitioner approached High Court for issuance directions to family court, Chennai in order to dispose of her interim petition.

“In matrimonial disputes, the innocent children are worst sufferers.”

In matrimonial proceedings instituted under the personal laws, the wife and children can seek maintenance against the husband/father, as the case may be. It is to provide them with financial support and it for their survival. Hindu wives can seek pendente lite maintenance in a pending matrimonial proceeding under Section 24 of the Hindu Marriages Act and children can seek such maintenance from their father under Section 26 of the Act.

Object of Section 24 Hindu Marriages Act: Maintenance to a party in matrimonial proceedings in order to provide financial assistance to the spouse to maintain herself or himself during the pendency of proceedings and have sufficient funds to carry on the litigation.

The Court noted another point in the present case that was the delay in disposal of the maintenance petitions under Sections 24 and 26 of the Hindu Marriage Act, for which the Court stated that it is,

“A classic example of ‘Law’s Delay’, ‘Court’s Delay, ‘Judges’ Delay’, ‘System Law’, ‘System Failure’. All the stakeholders in the administration of gender justice shall owe responsibility for this sorry state of affair.”

Further, the High Court stated with a lot of disappointment that, “Women and children are in a disadvantageous position, husbands torture them by dragging on even these simple maintenance petitions for years together.”

The present case is also a classic example for “Perpetration of matrimonial violence and exploitation of women and children by the husbands due to Courts inaction.”

Therefore, noting the above and throwing light on present situation in the Courts in regard to such petitions as mentioned, the learned Judge gave clarity on how the issue of delay of such proceedings can be resolved by placing the stark realities of failure of justice in gender justice and gave directions for the present case by directing the family court, Chennai to dispose of the petition within a period of 15 days from this order.[A. Savitha Ujwala v. M.R. Venkatagiri, 2017 SCC OnLine Mad 1459, decided on 25-04-2017]

Case BriefsHigh Courts

Delhi High Court: There was an appeal against the decision of the Family Court  which had dismissed the request for annulment of the marriage between the respondent and appellant on ground of desertion and cruelty by wife. The High Court reversed the order of Family Court and even noted that certain observations made by it were contrary to law. The wife had stated before the Court that her husband was more interested in other girls than in he and she had herself seen him with a girl to which he instead of explaining, had abused her without telling about the girl. Also, she had at several occasions received her husband’s phone from different girls.

To this allegation, response of the Family Court was that the husband must remove the suspicion from his wife’s mind and said that unchastity by a wife is to be viewed seriously because a higher level of fidelity is expected from a wife and it denied treating the allegation of infidelity made against the husband as mental torture. The Division Bench  expressed their shock at such a gender bias approach of the Family Court and made an important observation that an act of infidelity by either spouse would be treated on equal footing and amount to mental cruelty to other spouse. However, the facts of the case were such that the wife was unable to prove her allegations against her spouse.

In the present case, another important observation made by the Court relying on the facts was that the relations between husband and wife were more or less spoilt and they had reached the prime of their age. Also, they found out that there would be no good cause served by re-uniting them as the children were already major and could take care of themselves. It held that there was an irretrievable breakdown of marriage between both the parties in the case before them and granted the decree of divorce on the same ground while cruelty of one against the other was not sufficiently proved. However, there were serious allegations of both against each other indicating that compelling them to live with each other would in itself be an act of cruelty toward them. [Navratan Baid v. Neetu Baid, 2017 SCC OnLine Del 6884, decided on 6.02.2017]

Case BriefsHigh Courts

Delhi High Court: Delivering its judgment in a petition for the annulment of the marriage on the grounds of mental cruelty, the Division Bench of Pradeep Nandarajog and Prathibha Rani, JJ granted divorce to a couple who had been married for just five months before filing for divorce. The Court observed that though irretrievable breakdown of marriage was not a ground to grant divorce, but the Courts have blended the concept of cruelty with irretrievable breakdown of marriage.

In this case, the Family Court had rejected husband’s plea for divorce therefore he had appealed against the decision in the High Court. The Court noted that in the instant case there had been many instances of mental cruelty faced by the parties from which it was clearly visible that, the couple were going through a difficult phase of their life. Whereas the husband had contended that wife was rigid, rude and shy in nature, the wife complained about illicit sexual relationships, drinking and smoking habits of her husband. Moreover, the wife also alleged that she came to know about her husband’s suffering from an incurable disease only after the marriage which led to concealment of facts from the husband.

The Court observed that where there was evidence that the husband and wife indulge in mutual bickering, leading to remonstration and therefrom to the stage where they target each other mentally, insistence by one to retain the matrimonial bond would be a relevant factor to decide on the issue of cruelty, for the reason the obvious intention of said spouse would be to continue with the marriage not to enjoy the bliss thereof but to torment and traumatise the other. Fast paced lifestyle, complexities of living, a breakdown of support systems and the challenges of economic instability had obviously taken a toll on the couple, the Court observed and granted divorce to the parties. [Anurag Sharma v. Manushi Sharma, 2016 SCC OnLine Del 5871, decided on November 10th, 2016]

Case BriefsHigh Courts

Delhi High Court: In a matter related to divorce, the Division Bench comprising of P. Nandrajog and Pratibha Rani, JJ. , partially upholding the judgement of the Family Court of Dwarka, held that where a husband or wife, wants to retain the matrimonial bond just to torture and traumatize each other, it amounts to cruelty and on this ground granted divorce.

In the instant case, the parties were extremely strained since the inception of their marriage and used to constantly fight with each other during a short span of four months when they lived together. The Court stated that where a husband or wife indulges in mutual bickering just to torture each other mentally, insistence by one to continue the marriage would be factor relevant to determine the issue of cruelty, as such would be only with the intention to further torment and distress each other. [Manish Kumar v. Sandhya Kumari, 2016 SCC OnLine Del 5642, decided on 21.10.2016]

Case BriefsHigh Courts

Delhi High Court: The Division Bench comprising of S. Ravindra Bhat and Deepa Sharma, JJ. held that demand for privacy by the spouse is not cruelty and also reiterated that High Court lacks the jurisdiction to dissolve a marriage on the doctrine of “irretrievable breakdown” under Section 13(1)(ia) of the Hindu Marriage Act. The Court held that “Privacy is a fundamental human right. So when a woman enters into matrimony, it is the duty of the family members of her matrimonial home to provide her with some privacy.”

In the present case, an appeal was filled by the appellant husband whose petition for dissolution of marriage under Section 13(1)(ia) was dismissed by the Family Court of Rohini, Delhi. The petition was filed on the ground of cruelty alleging that the respondent wife was pressurising him to set up a separate home as she did not want to live in a joint family which the respondent husband couldn’t afford since he worked as a labourer. Other allegations were that she was not dispensing her duties as a wife, demanded a separate household for herself, abused him verbally and physically and even abandoned him for no reason.

The wife by disapproving all these allegations stated that it was the husband who had been cruel towards her and not her. She alleged that her husband had demanded for a dowry of Rs.1 lakh to buy a motorbike and as her family couldn’t afford it, she was ousted from her matrimonial home and was never allowed to return. She also mentioned that the husband had taken up a separate accommodation from his family members after marriage where he resided with her and their child for two-three days and then abandoned them and never returned.

The Court rejected the petition of the appellant husband and said that Section 23(1)(a) of the Act makes it abundantly clear that a decree can be granted when the Court is satisfied that the petitioner is in no way taking advantage of his wrong. Such is not the case here, as it is the appellant who abandoned the company of his wife. The Court stated that the evidence clearly disproves the appellant’s contention that the respondent left her matrimonial home and never returned. The Court reaffirmed the findings of the Family Court that the respondent had no intention to desert her husband and there was no evidential backing to support that the appellant or his family members had provided requisite privacy to the respondent thus, holding that privacy demand was not unreasonable and as such did not constitute cruelty. Further, the allegation that the behaviour of the respondent caused mental cruelty was also disapproved.

It is pertinent to note that the counsel for appellant asserted that there is no life in the marriage bond and that it should be dissolved for this reason. Counsel relied on K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226  in which it was held that “A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing.”

The Court relied on Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379 to hold that irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act and on  Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415 to hold that the doctrine of irretrievable break-down of marriage is not available to the High Courts, lacking powers similar to those exercised by the Supreme Court under Article 142 of the Constitution.

The Court based on its reasoning finally held that the Family Court was correct in holding that such demand of separate room was not unreasonable and as such did not constitute cruelty and also dismissed the husband’s petition. [Mini Appa Kanda Swami v. M. Indra, 2016 SCC OnLine Del 5312, decided on September 21, 2016]

 

Case BriefsHigh Courts

Allahabad High Court: The bench of Pramod Kumar Srivastava, J. held that granting divorce on the ground of irretrievable breakdown of marriage is exclusive within jurisdiction of the Supreme Court and is beyond jurisdiction of any other Court in India.

Against the judgment of trial court, Civil Appeal  was preferred by wife, which was heard and dismissed by the judgment dated 14.12.2011 of Additional District Judge/Special Judge, Gautam Buddha Nagar. In this judgment, lower appellate court had independently appreciated the evidences and held that parties are living separately from year 2002 and during the very short period of living together, their relationship was not normal.

The High Court after perusing the arguments observed that there is total absence of mutual respect and the behavior of both the parties indicates the embittered relationship. Both are still undergoing under a traumatic experience. Thus, Court dismissing the appeal held that continuance of such a relationship will amount to mental cruelty. But the Counsel for appellant argued that the ground of “irretrievable breakdown of marriage’ is not sustainable. He stated that this ground can be taken by the Supreme Court only for granting the divorce in exercise powers under Article 142 of the Constitution of India and this ground cannot be taken by any other Court including High Court because such ground is not mentioned in Section 13 of Hindu Marriage Act. The Learned Counsel for Respondent stated that marriage had reached the point of no return which cannot be repaired, but such ground is not mentioned in Section 13 of the Hindu Marriage Act.

The Court while accepting the above allegations suggested the Law Commission of the State to take appropriate steps to consider for incorporating the ground of “irretrievable breakdown of marriage’ as grounds of divorce in Section 13 of the Hindu Marriage Act. [Puja Suri v. Bijoy Suri, 2016 SCC OnLine All 300, decided on 26.05.2016]