SC cautions courts against divorce on account of irretrievable breakdown of marriage

The Supreme Court has cautioned courts against dissolving marriages on account of irretrievable breakdown of marriage, saying husband and wife living separately does not necessarily mean that the marriage has irretrievable breakdown.

“…we may hasten to add that courts, in recent times, often observe that since the parties are living separately, the marriage should be taken to have broken irretrievably. However, before jumping to such a conclusion, it is imperative upon the Family Court or the High Court to determine as to who out of the two is responsible for breaking the marital tie and forcing the other to live separately,” a Bench led by Justice Surya Kant (as he then was) said in its November 14 order.

“Unless there is cogent evidence for wilful desertion or refusal to cohabit and/or look after the other spouse, the finding of marriage having been broken irretrievably is likely to have devastating effects, especially on the children. The arrival of such a conclusion puts the Courts under an onerous duty to deeply analyse the entire evidence on record, consider the social circumstances and the background of the parties, and various other factors,” said the Bench, which also included Justice Joymalya Bagchi.

The top court said judges must undertake a thorough examination of the reasons behind the separation and determine the real cause of the spouses living separately before granting divorce on the ground of ‘irretrievable breakdown of marriage’ — which isn’t a statutory ground for divorce under the Hindu Marriage Act, 1955.

It set aside the Uttarakhand High Court order that interfered with the trial court’s order refusing to grant divorce to the husband who threw out the wife from the matrimonial home forcing her to live separately.

Allowing the husband’s appeal, the High Court granted a decree of divorce on the ground that the marriage had irretrievably broken down as the husband and wife were living separately.

Acting on the wife’s petition, the top court set aside the high court’s order saying, “the high court has, for the reasons best known to it, not adverted to the appellant’s plea that she was thrown out of the matrimonial home and was forced to live separately.”

The Bench said the High Court should have determined if the woman was thrown out of the matrimonial home or she herself voluntarily deserted the respondent and if the withdrawal of the first divorce petition wherein also the divorce was sought on the ground of cruelty, would bar the filing of second petition on the same cause of action.

The high court should have also examined if the man committed cruelty by not allowing the appellant wife to join the matrimonial home and/or by denying any maintenance, love, affection, and care to their minor child.

Partly allowing the wife’s appeal, the top court sent the matter back to the high court for fresh adjudication in accordance with the law.