Whether Family Court / High court can grant Divorce on Irretrievable Break Down of Marriage ? [Case Law]

Hindu Marriage Act, 1955 - The family court or even High court cannot grant a decree of divorce on the ground of irretrievable break down of marriage as it is not a ground under the Hindu Marriage Act.

Hindu Marriage Act, 1955 - Irretrievable break down of marriage is not a ground for divorce.

Irretrievable break down of marriage is not provided by the legislature as a ground for granting a decree of divorce. The court cannot add such a ground to Sec.13 as that would amount to amending the Act which is the function of the legislature. A mere direction of the supreme court without considering the legal position would not amount to a precedent. The decree of divorce granted by the family court on the ground of irretrievable break down of marriage is liable to be set aside.

Facts of the Case

Appeal is against a decree directing dissolution of marriage. Appellant is the wife. Divorce was sought on the ground of desertion. Divorce was granted not on that ground. The family court having considered the evidence adduced by the parties was pleased to grant a decree of divorce on a ground strictly not sought. A decree of divorce was granted on the ground of irretrievable break down of marriage.

Hindu Marriage Act, 1955 - S.13 - Desertion - Stay away of the husband / wife from the spouse is not desertion within the meaning of the explanation to Sec.13 of the Hindu Marriage Act.

The explanation to Sec.13 states that the expression 'desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage and its grammatical variations and cognate expressions shall be construed accordingly. It cannot be said that the alleged desertion by the wife was without reasonable cause inasmuch as the husband has been cruel to her and has been living with a concubine in whom he has two children. The stay away of the appellant from the respondent is not desertion within the meaning of the explanation to Sec.13 of the Hindu Marriage Act. The respondent is not entitled to get the decree of divorce obtained by him retained. The appeal is allowed. The decree of divorce granted by the family court is set aside. Considering the man and wife relationship between the parties, we do not tax the respondent with costs.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K. HARILAL & A.M. BABU, JJ.

Mat.Appeal No.587 of 2008

Dated : 21st May, 2018

OP 373/2006 of FAMILY COURT,KOZHIKODE DATED 07-01-2008

APPELLANT/RESPONDENT.

PUSHPA VALLI

BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR 

RESPONDENT/PETITIONER

CHANDRAN

BY ADV. SRI.A.RANJITH NARAYANAN BY ADV. SRI.S.K.SAJU 

J U D G M E N T 

A.M. Babu, J 

1. Appeal is against a decree directing dissolution of marriage. Appellant is the wife.

2. The case of the respondent may be briefly stated as under : His marriage with the appellant was solemnized on 29.4.1979. A child was born in the wedlock. The appellant was living according to her own free will. After her delivery she did not come back. He then filed O.P.24/1981 against her for restitution of conjugal rights. The issues were settled and she came back to him. Even thereafter she deserted him. Despite the issuance of a lawyer notice, she did not come back. He filed O.P.34/1985 for restitution of conjugal rights. She raised false allegations in her statement of objections. The said petition for restitution of conjugal rights was dismissed. She filed an application under Sec.125 of Cr.P.C and obtained an order for maintenance. The appellant left the company of the respondent on 11.5.1982 without any reason. The marriage is therefore liable to be terminated on the ground of desertion.

3. The appellant raised the following contentions : Her life in the company of the respondent was miserable. He was alcoholic. He was cruel too. She was unable to tolerate his cruel treatments. Therefore she had no go but to go to her house and live there. Even after the settlement subsequent to the filing of O.P.24/1981, he continued to treat her with cruelty. His second petition for restitution of conjugal rights was dismissed. It was dismissed accepting her case of cruelty at his end. He contracted a second marriage with one Radhamani. He has two children in that relationship. The only intention behind seeking a decree of divorce is to see that she does not receive the family pension in the event of his death.

4. Both parties adduced evidence before the family court. The husband and wife gave evidence as PW1 and RW1 respectively. Exts A1 and A2 were marked on the side of the husband.

5. The family court having considered the evidence adduced by the parties was pleased to grant a decree of divorce on a ground strictly not sought. A decree of divorce was granted on the ground of irretrievable break down of marriage.

6. Heard Sri.V.G.Arun, the learned counsel for the appellant and Sri.Ranjith Narayanan, the learned counsel for the respondent.

7. Divorce was sought on the ground of desertion. Divorce was granted not on that ground. It was granted on a ground not stated in the Hindu Marriage Act. The family court allowed the petition for divorce on the ground of irretrievable break down of marriage. In order to do so the family court relied on the decision of the apex court in Naveen Kohli v. Neelu Kohli (AIR 2006 SC 1675). That was a case where divorce was sought under Sec.13 of the Hindu Marriage Act. The supreme court granted divorce on the ground of irretrievable break down of marriage. It was granted by the supreme court under its special power under article 142 of the Constitution of India. The family court or even this court cannot grant a decree of divorce on the ground of irretrievable break down of marriage as it is not a ground under the Hindu Marriage Act. The learned counsel for the respondent relied on the decision of the Madhya Pradesh high court in Kamal Singh Sisodia v.Rama Sisodia (2015 KHC 2303). The Madhya Pradesh high court relying on another decision of the supreme court granting divorce on the ground of irretrievable break down of marriage granted divorce on that ground. We are in respectful disagreement with the decision of the Madhya Pradesh high court. For, we repeat, it is not a ground for divorce. We get support on this point from a decision of the apex court. The decision is Visnu Dutt Sharma v. Manju Sharma (AIR 2009 SC 2254). The apex court holds that irretrievable break down of marriage is not provided by the legislature as a ground for granting a decree of divorce. It is also held that the court cannot add such a ground to Sec.13 as that would amount to amending the Act which is the function of the legislature. It was held that a mere direction of the supreme court without considering the legal position would not amount to a precedent. The decree of divorce granted by the family court on the ground of irretrievable break down of marriage is liable to be set aside. We do so.

8. We should next consider whether the respondent could prove the desertion taken by him as a ground for divorce. He filed two petitions for restitution of conjugal rights. The first one was settled between the parties and they lived together. They fell apart thereafter. His second petition for restitution of conjugal rights was dismissed on merits. Ext A1 is a certified copy of the order in the said petition, O.P.34/1985. The petition was dismissed finding that the husband was cruel to the wife. Cruelty of the husband is indeed a ground for the wife to live away from him. It has also come out in evidence that the respondent is living with a concubine and that he has two children in that woman. He himself admitted that fact. That too is a ground justifying the separate stay of the wife. The explanation to Sec.13 states that the expression 'desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage and its grammatical variations and cognate expressions shall be construed accordingly. It cannot be said that the alleged desertion by the wife was without reasonable cause inasmuch as the husband has been cruel to her and has been living with a concubine in whom he has two children. The stay away of the appellant from the respondent is not desertion within the meaning of the explanation to Sec.13 of the Hindu Marriage Act. The respondent is not entitled to get the decree of divorce obtained by him retained.

9. The appeal is allowed. The decree of divorce granted by the family court is set aside. Considering the man and wife relationship between the parties, we do not tax the respondent with costs.