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1.9
2.1
2.2
1.8.3
2.3
2.4
2.5
2.6
2.2.1
2.2.2
2.2.3
2.2.4
2.3.1
2.3.2
3.1
3.2.1
3.2.2
3.3
3.4
3.4.1
3.4.2
3.4.4
3.5
3.6
3.7
3.8
3.9
3.10
4.1
4.2
4.5
4.6
4.7
3.6.1
4.7.1
4.7.3
4.7.5
4.7.6 Reforming Tradition: The Legislative Interventions
4.7.7 The Codification of Law and Its Unintended Consequences
4.7.8 The Gradual Shift in Hindu Marriage Practices
4.7.9 The Colonial Paradox: Progress or Cultural Disruption?
4.7.10 Historical Context and Initial Efforts-Post Independence
4.7.11 Parliamentary Debates and Enactment
4.7.12 Marriage Reforms under Hindu Law: Evolution and Modernization
4.7.13 Hindu Marriage is not a Contract
4.7.14 Modern Challenges and Future Outlook of Marriage in India
4.7.15 Overriding effects of Hindu Marriage Act: Section 4
5.1 Essential Conditions of a Hindu Marriage
5.1.1 Both Parties must be Hindu
5.1.2 Ceremonies
5.1.3 Section 5
5.2 Ceremonies of Hindu Marriage
5.2.1 Necessary Shastric ceremonies and rites
5.2.2 Customary ceremonies
5.2.3 Statutory ceremonies as per special statutes
5.3 Void Marriages
5.3.1 Bigamy
5.3.2 Degree of Prohibited Relationship
5.3.3 Sapinda Relationship
5.4 Child Marriage
5.4.1 Age of Consent Acts of 1860 and 1891
5.4.2
5.4.3
5.4.4
5.4.5
5.4.6
5.4.7
5.5
5.6
6.1
6.1.1
6.1.2
6.1.3
6.1.4
6.1.5
6.1.6
6.1.7
6.1.8
6.1.9
6.2.1
6.2.2
6.2.3
6.2.4
7
Decree of Nullity: Void and Voidable Marriages
7.1 Void Marriages
7.2 Voidable Marriages
7.2.1 Impotency Section 12(1)(a)
7.2.2 Incapacity to give Consent Due to Mental DisOrder
7.2.3 Consent is Obtained by Force or Fraud
7.2.4
8
Theories of Divorce
8.1
8.2
9.1
8.2.1
8.2.4
8.2.5
9 Dissolution of Marriage
9.1.1
9.1.2
9.1.3
9.1.4
9.1.5
9.1.6 Venereal Disease in Communicable Form: Section 13(1)(v)
9.1.7 Renouncing the world: Section 13(1)(vi)
9.1.8 Divorce on the Ground of Presumption of Death: Section 13(1)(vii)
9.2 Breakdown of Marriage as a Ground to Seek Divorce: Section 13(1A)
9.2.1 Intersection between Section 13(1A) and Section 23(1)(a)
9.3 Wife’s Special Ground to Seek Divorce under Section 13 (2) of HMA
9.3.1 Repudiation of Marriage
9.4 Mutual Consent
9.4.1 Procedure of filling Mutual Consent
9.4.2 Withdrawal of Consent under Section 13B
9.5 Customary Divorce under Hindu Marriage Act
9.5.1 Meaning of Customary Divorce
9.5.2 Position of Custom under Hindu Marriage Act, 1955
9.5.3 Harmonisation of conflict between Section 29(2) read with Section 3(a) and Section 4 of HMA
9.5.4 Challenges to the Practice of Customary Divorce
9.5.5 Conclusions and Suggestions
9.6 Irretrievable Breakdown of Marriage as a Ground of Divorce 314
9.6.1 Exercise of Power by the Supreme Court of India 317
9.6.2 Law Commission Report on Irretrievable breakdown of Marriage 323
9.6.3 Challenges to Implementation of Irretrievable Breakdown of Marriage as Ground of Divorce 325
9.7 Fair Trial Rule 326
9.7.1 Application of Section 14 to Petition on Divorce by Mutual Consent 329
9.8 Remarriage after Divorce
9.8.1 Object of Section 15 of Hindu Marriage Act
9.8.2 Legal Consequences of Remarriage 334
9.9
9.9.1
9.9.2
9.9.3
9.9.4
9.9.5
12 Maintenance
12.1
12.4
12.5
13.1
13.3
13.8
13.9
13.10
14.7
15
Family Courts
15.1 Establishment of Family Courts 499
15.2 Jurisdiction of Family Court 500
15.3 Procedure 502
15.4 Appeal 504 SUMMARY 505
PART B
MUSLIM LAW
16
Who is a Muslim?
16.1 Introduction 509
16.1.1 The Origins of Islam and Its Expansion 510
16.1.2 Muslims in India: A Diverse Community 510
16.1.3 Colonial Legal Recognition of Muslims 510
16.1.4 Key Legislative Milestones 511
16.1.5 Key Court Cases Defining Muslim Identity 511
16.1.6 Post-Independence Legal Developments 512 SUMMARY 514
17
Schools of Muslim Law
17.1 Definition and Development of the Term “Madhhab” 517
17.2 Sunni and Shia Sub-Schools 517
17.2.1 Hanafi School 518
17.2.2 Maliki School 519
17.2.3 Shafi School 520
17.2.4 Hanbali School 522
17.2.5 Shia Sub-Schools 525
17.3 Key Differences between Shia and Sunni Law 525 SUMMARY 527
I-22
18
Sources of Muslim Law
18.1 The Development of Islamic Jurisprudence: Integration of Pre-Islamic Traditions and Quranic Reform 531
18.2 Types of Sources of Muslim Law 532
18.2.1 Primary Sources of Muslim Law 533
18.2.2 Secondary Sources of Muslim Law 540 SUMMARY 545
19
Muslim Marriage
19.1 Nikah 547
19.2 Concept of Marriage 547
19.3 Essential Requirements of Marriage 549
19.3.1 Proposal and Acceptance 549
19.3.2 Competent Parties 551
19.3.3 Legal Disability: Prohibited Relationships 554
19.4 Duration of Iddat 560
19.5 Distinction between Void and Irregular Marriages 561
19.6 Registration of Muslim Marriage 563
19.7 Muta Marriage 565
19.7.1 Legal incidents of Muta Marriage 567
19.7.2 Muta Marriage Cases 568
19.8 Constitutionality of Muslim Marriage Laws 570
19.8.1 Brief of Law Commission Report on polygamy under Muslim Law 571
19.9 Muslim Marriage after Prohibition of Child Marriage Act (PCMA) 572
19.10 Inter-Religious Marriages 576
19.11 Restitution of Conjugal Rights 579
19.11.1 Remarriage of the Husband 581
19.11.2 Cruelty 583
19.11.3 Enforcement of Decree of Restitution of Conjugal Rights 584 SUMMARY 587
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20
Muslim Divorce
20.1 Divorce 591
20.2 Divorce at the Instance of the Husband: Talaq 592
20.2.1 Capacity to Pronounce the Talaq 592
20.2.2 Oral talaq 593
20.2.3 Talaqnama: Talaq in Writing 594
20.3 Different Kinds of the Talaq 594
20.3.1 Talaq-ul-Sunnat 595
20.3.2 Talaq-ul-biddat 596
20.3.3 Muslim Women (Protection of Rights on Marriage) Act, 2019 611
20.3.4 Contingent Talaq 615
20.3.5 Delegated Talaq (Talaq-i-Tafweez) 616
20.4 Divorce at the Instance of Wife and by Mutual Consent 618
20.4.1 Khula 618
20.4.2 Mubarat (Mutual Release) 620
20.4.3 Difference between Khula and Mubarat 622
20.4.4 Legal Effects of Khula and Mubarat 623
20.5 Divorce under Dissolution of Muslim Marriage Act 623
20.5.1 Effect of Conversion/Apostasy 644
20.5.2 Apostasy by the Husband 645
20.5.3 Apostasy by the Wife 645
20.5.4 Irretrievable Breakdown of Marriage as Ground to Seek Divorce 647
20.6 The Marriage after Divorce (Halala) 649 SUMMARY 650
21
Acknowledgement of Paternity in Muslim Law
21.1 Presumption of Legitimacy under Indian Law 656
21.2 Legitimacy in Islamic Law 658
21.3 Inheritance and Legal Rights 659
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21.4 Paternity through Acknowledgement 661
21.4.1 Modern Legal Challenges 662
21.4.2 Types and Conditions of Acknowledgement 663
21.5 Implications of Acknowledgement on Inheritance 665
21.5.1 Right to Inherit Property 665
21.5.2 Irrevocability of Acknowledgement 666
21.5.3 Adoption under Muslim Law in India 666
21.6 Legal Position of Adoption for Muslims in India 666
21.6.1 Muslim Personal Law and Customary Adoption 666
21.6.2 Legal Recognition under Indian Law 667
21.6.3 Juvenile Justice Act, 2015 667 SUMMARY 668
22 Guardianship
22.1 Guardianship of a Child under Muslim Law 671
22.2 Kinds of Guardianship 672
22.2.1 Natural or Legal Guardian 672
22.2.2 Testamentary Guardian 675
22.2.3 Guardians Appointed by Court 675
22.2.4 De facto Guardians 676
22.3 Concept of Guardianship 676
22.3.1 Wilayat-e-Nafs (of a Person) 676
22.3.2 Wilayat-ul-Nikah (Guardianship in Marriage) 677
22.3.3 Wilayat-ul-Mal (of Property) 678
22.4 Mother’s Right to Guardianship of a Child 679
22.5 Powers and Duties of a Guardian 681
22.6 End of a Guardianship 682
22.7 Guardians and Wards Act, 1890 W.R.T. Muslim Law 683 SUMMARY 686
23.1 Maintenance under Muslim Law 689
23.1.1 Legal and Customary Sources of Maintenance under Muslim Law 690
23.1.2 Maintenance or Nafaqah under Islamic Law 693
23.1.3 Legal Obligations of Maintenance 693
23.1.4 Principles of Maintenance under Muslim Law 695
23.2 Limitations on a Wife’s Right to Maintenance under Section 125 of CrPC (Now Section 144 of BNSS) 696
23.3 Maintenance of Children after Divorce in Muslim Law 696
23.4 Post-Divorce Maintenance (Talaq & Iddat Period) 698
23.5 Maintenance Rights of Divorced Muslim Women under Section 125 of CrPC (Now Section 144 of BNSS) and the 1986 Act 701
23.5.1 Apportionment of Maintenance Obligations in Family Law 705
23.6 The Muslim Women (Protection of Rights on Divorce) Act, 1986 705
23.6.1 Legal Framework of Maintenance under the Muslim Women (Protection of Rights on Divorce) Act, 1986 706
23.7 Legal Safeguards and Maintenance Rights under the Protection of Women from Domestic Violence Act, 2005 707
23.8 Effect of Religious Conversion on Maintenance under Muslim Law 710
INDEX 713
PART A : HINDU LAW
“The period of seven years laid down in Section 108 of Indian Evidence Act with regard to the duration when the whereabouts of a person are not known cannot be whittled down and reduced to 2/3 years under any custom. The Indian Evidence Act overrides the earlier rules of evidence which were not contained in any statute, act or regulations. The rules of evidence under the Hindu or Mohammedan law or which had origin in custom or were based on principles of equity, justice and good conscience have no validity when they are in derogation to or are in clear departure from the provisions of the Evidence Act.”
The Court upheld the validity of provisions of Indian Evidence Act over any customary law. Marriage implies companionship and when one of the parties goes missing leading to loss of companionship then it is for the betterment of the aggrieved party to dissolve the marriage which has lost the spouse.
9.2 BREAKDOWN OF MARRIAGE AS A GROUND TO SEEK DIVORCE:
SECTION 13(1A)
Originally divorce was based on the Guilt theory of divorce where divorce could be obtained if one of the parties to the marriage was guilty of matrimonial offence and the other party was innocent. In 1955 under HMA nine different grounds were introduced for both husband as well as for wife to obtain a decree of divorce under sub-section (1) of Section 13. Under clause (viii) of the subsection (1) of Section 13, a marriage could be dissolved by a decree of divorce on a petition presented by the husband or the wife on the ground that the other party has not resumed cohabitation for a period of two years or upwards after the passing of a decree for judicial separation against that party. Under clause (ix) of the sub-section (1) of Section 13, a marriage could be dissolved by a decree of divorce on a petition presented by the husband or the wife on the ground that the other party had failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of a decree of restitution against that party. The ground was as under: 159
“13. Divorce.—(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—
(i) …………..
(viii) has not resumed cohabitation for a period of two years or upwards after the passing of a decree for judicial separation against that party, or
159. The HMA, 1955.
CH. 9 : DISSOLUTION OF MARRIAGE
(ix) had failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of a decree” 160
In Amending Act 44 of 1964161, which came into force on 20-12-1964, made two major changes. Firstly, Clauses (viii) and (ix) which constituted two of the nine grounds on which a marriage could be dissolved by a decree of divorce were deleted from sub-section (1) of Section 13 which were based on the guilt theory of divorce where one party has to be a guilty party and other party has to be an innocent party, then innocent party is entitled to seek divorce against the guilty party and secondly, a new sub-section i.e. sub-section (1A) was added to Section 13 which is based on breakdown theory of divorce where guilt or innocence of the either of the party is not relevant to grant the decree of divorce:
“13 (1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of two years or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of two years or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.”
The Act was again amended in 1976 Which further reduced the waiting period of two years to one year.162
Section 13(1A) is in the present form:
“Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of
160. Hindu Marriage Act, 1955, Section 13.
161. The Hindu Marriage (Amendment) Act, 1964.
162. The Hindu Marriage Laws (Amendment) Act, 1976.
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PART A : HINDU LAW
a decree for restitution of conjugal rights in a proceeding to which they were parties.163”
It is clear from these amendments introduced by Act 44 of 1964 that whereas prior to the amendment a petition for divorce could be filed only by a party which had obtained a decree for judicial separation or for restitution of conjugal rights, this right is now available to either party to the marriage irrespective of whether the party presenting the petition for divorce is a decree- holder or a judgment-debtor under the decree for judicial separation or the decree for restitution of conjugal rights, as the case may be. Section 13(1A) in the present form is drafted in such a way that relief of divorce would be available to either party to the marriage irrespective of the fact who is the guilty party and who is the innocent party because the basis of Section 13(1A) is to promote divorce on the basis of breakdown of marriage. Under section 13(1A) there is no need of having consent of both parties to the marriage for divorce or to search for who is the decree holder and who is the judgement debtor in the proceedings. Question of guilt or innocence of either party is irrelevant which is the basis of breakdown theory which states that the right to apply for divorce should be available to both the husband or to the wife as the case may be when the marriage has proved to be a complete failure. The clear intention of the legislature was that when the parties are living separately for a period of 1 year or more after a decree of restitution of conjugal rights or judicial separation it is a clear proof that their marriage has proved to be a total failure or the marriage has broken down. The decree under Section 13(1A) is dependent upon the prior decree obtained under Section 9 (restitution of conjugal rights) or Section 10 (judicial separation) of the Hindu Marriage Act. In order to seek divorce under Section 13(1A) first there has to be a decree of either restitution of conjugal rights or a judicial separation then after having these two decrees either under Section 9 based on restitution of conjugal rights or under Section 10 based on judicial separation, there should be no cohabitation between the parties for a period of one year or more, then either party to the marriage can seek divorce under Section 13(1A).
In totality the parties need two decrees first under either Section 9 or Section 10 and then under Section 13(1A) to seek divorce on the basis of breakdown of marriage as a ground of divorce. Therefore, efforts were made by the legislature to directly introduce breakdown of marriage as grounds of divorce and a bill was introduced in the parliament but lapsed. Now in many cases
163. Hindu Marriage Act, 1955, Section 13(1A).
the Supreme Court by using its extraordinary powers under Article 142 of the Constitution recognised irretrievable breakdown of marriage as grounds of divorce and granted divorce to the parties in many cases.
In these two grounds under Section 13 (1A) parties are already through a long process of matrimonial litigation in the first place seeking and obtaining a remedy of either restitution of conjugal rights or judicial separation and in spite of that they are not able to resume their matrimonial relations. This whole process makes it clear that marriage is already over between the parties and no fruitful purpose will be served in preserving this kind of empty marriage.
9.2.1 Intersection between Section 13(1A) And Section 23(1)(a)164
Once the condition for application of dissolution of marriage by divorce under Section 13(1A) is complete then comes application of Section 23(1) (a) of HMA. Once a party is able to get a decree of Judicial Separation or Restitution of Conjugal Rights and one year has passed without cohabitation then either of the parties to the initial decree can apply for divorce under Section 13(1A). By applying under Section 13(1A) a petitioner does not automatically get a decree of divorce and petitioner has to pass one more test under Section 23(1)(a) of the Act. Section 23 is applicable in almost all the proceedings and applied by the court to satisfy itself before passing the decree. As per section 23(1)(a) petitioner is not allowed to take advantage of his own wrong for the purpose of relief. If a petitioner is able to satisfy all the ingredients to get the relief under Section 13(1A) but if it is found by the court that petitioner is taking advantage of his own wrong then relief will be denied by the court. This is the limited object and effect of the amendment introduced by Act 44 of 1964 and further amended in 1976. The amendment was not introduced with the purpose that the provisions contained in Section 23 should be repealed. The object of sub-section (1A) was merely to liberalise the right to apply for divorce and not to make it mandatory that whenever a petition for divorce presented under sub-section 13(1-A) it must be decreed on the bare proof that there was no cohabitation for the required period. Section 23 is applicable in every proceeding under the Act and court is under the duty to decree the relief only if the conditions mentioned in the sub-section are satisfied, and not otherwise. Therefore, provisions of Section 23(1) are applicable in deciding a petition filed under
164. Hindu Marriage Act, 1955, Section 23: “Decree in proceedings.—(1) In any proceeding under this Act, whether defended or not, if the court is satis ed that (a) any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground speci ed in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief,”
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PART A : HINDU LAW
sub-section (1A) of Section 13 of the Act. In reality, the Hindu Marriage Act, through Section 23(1)(a), expects that the petitioner should approach the court with clean hands. If the petitioner himself/herself has wronged the other party, he/she cannot be allowed to take advantage and successfully claim matrimonial relief against the respondent.
In Dharmendra Kumar v. Usha Kumar165 wife obtained the decree for Restitution of Conjugal Rights. Two years later she presented a petition under Section 13(1A)(ii) for divorce stating that there is no restitution of conjugal rights. Husband resisted the petition stating that he made all attempts to comply with the decree by writing many letters to her but she never replied to any letter. She herself is responsible for non-compliance with the decree of Restitution of Conjugal Rights. Therefore, she should not be allowed to take advantage of her own wrong. Court granted the decree of divorce in favour of wife and made the following observation:
“Therefore, it would not be very reasonable to think that the relief which is available to the spouse against whom a decree for restitution has been passed, should be denied to the one who does not insist on compliance with the decree passed in his or her favour. In order to be a ‘wrong’ within the meaning of Section 23(1)(a), the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled.”
In Ram Kali v. Gopal Dass166, wife obtained the decree for Restitution of conjugal rights. Later on, the husband filed the petition for divorce on the ground that there had been no restitution of conjugal rights, after the passing of the decree of restitution of conjugal rights. Wife alleged that the husband failed to comply with the decree and should not be allowed to take advantage of his wrong under Section 23(1)(a). Court granted the decree in favour of the husband and held that “failure to perform the decree of restitution of conjugal rights, per se, without more, will not disentitle the spouse to the relief. To hold otherwise will, in most cases, defeat the purpose of the amendment, made in section 13, by the Hindu Marriage (Amendment) Act 1964, (44 of 1964) whereby section was introduced. Before the amendment, the relief to obtain divorce, on the ground that there had been no cohabitation for a period of two years or upwards, after the passing of the decree for restitution of conjugal rights, was available only to the spouse who had obtained the decree and not to the defaulting spouse. After the amendment, the relief is available to either party to the marriage, whether he is decree holder or judgment debtor in case of decree of restitution of conjugal. Even
165. Dharmendra Kumar v. Usha Kumar AIR 1977 SC 2218.
166. Ram Kali v. Gopal Dass 4 (1968) DLT 503.
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CH. 9 : DISSOLUTION OF MARRIAGE
the party who had failed to comply with the decree, can also apply for the dissolution of marriage by a decree of divorce, under section 13(1A)(ii) of the Act, on the ground that there has been no restitution of conjugal rights, between the parties, for a period of two years or upwards after the passing of the decree for restitution of conjugal rights.”
In Bimla Devi v. Singh Raj167, it was held by the Court that mere non-compliance with the decree of restitution of conjugal rights is not a wrong within Section 23(1)(a) where there has not been restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of decree for restitution of conjugal rights in proceedings in which they were parties. Therefore, relief of divorce cannot be refused under Section 13(1A)(ii) of the Act.
In Gajna Devi v. Purushottam Giri168, wife secured the ex parte decree of Judicial Separation under Section 10 of HMA. After two years the husband filed the petition for divorce under Section 13(1A). Wife contested the petition that Husband should not be allowed to take advantage of his own wrong by virtue of Section 23(1)(a). The Court granted the relief of divorce to the husband and the Court in this case held that conduct of the party subsequent to passing of the decree of judicial separation is relevant for grant of relief under Section 13(1A) of the Act. In the subsequent petition for divorce filed Section 13(1A) of the Act the earlier matrimonial misconduct cannot be pleaded as grounds to refuse the relief as per Section 23(1)(a) of HMA. The expression “petitioner is not in any way taking advantage of his or her own wrong” under clause (a) of Section 23(1) of the Act for petition under Section 13(1A) of the Act apply only to subsequent act after passing of decree of judicial separation or restitution of conjugal rights. After the passing of the previous decree of judicial separation or restitution of conjugal rights., any other new facts or circumstances arise which as per sub-section (1) of section 23 of the Act disentitle the spouse from obtaining a decree of divorce under section 13(1A) of the Act, the same has to be considered by court to deny relief to the petitioner.
Bombay High Court in Madhukar v. Saral169 held while granting relief under Section 13(1A) the Section 23(1) must be applicable and the conduct of the petitioner subsequent to the passing of the decree for judicial separation or restitution of conjugal rights is to be taken into consideration and if the petitioner is taking advantage of his own wrong then relief is to be denied by the Court.
167. Bimla Devi v. Singh Raj AIR 1977 P & H 167.
168. Gajna Devi v. Purushottam Giri AIR 1977 Delhi 178.
169. Madhukar v. Saral AIR 1973 Bom. 55.
PART A : HINDU LAW
Decree of restitution of conjugal rights or judicial separation is a separate decree from decree under Section 13(1A), therefore wrong on the basis of which decree of restitution of conjugal rights or judicial separation has been passed become exhausted with the passing of decree of restitution of conjugal rights or judicial separation. Therefore, while granting relief under Section 13(1A), fresh and new facts constituting wrongs should be considered under 23 (1)(a) to deprive the person of relief of dissolution of marriage by decree of divorce.
Gujarat High Court in the case of Bai Mani v. Jayantilal Dahyabhai170 has taken the similar view that act subsequent to passing of decree of judicial separation or restitution of conjugal rights, is to be seen to disentitle the party from seeking relief under Section 13(1A) of the Act. In this case the wife secured the decree of judicial separation as the husband was leading an adulterous life and not caring for children. After two years the husband presented the petition for dissolution of marriage for decree of divorce under Section 13(1A) of the Act. Wife contested the petition that the husband was not entitled to relief as he was taking advantage of his own wrong under Section 23(1)(a) by continuing to live an adulterous life. Court granted relief of divorce to husband by taking the view that matrimonial offence of adultery had exhausted itself when the decree for judicial separation was granted, and therefore, it could not be considered to be a new fact or circumstance amounting to wrong which would stand as an obstacle in the way of the husband to obtain the divorce and granted the divorce in favour of the husband.
In Soundarammal v. Sundara Mahalinga Nadar171, the wife filed the petition for judicial separation as the husband was leading an adulterous life and a decree was passed in her favour. After two years husband filed the petition for divorce under Section 13(1A) of the Act. The wife contested the petition and stated the husband should not be allowed to take advantage of his own wrong as per Section 23(1)(a) of the Act. In this case the Single Judge took the view that the husband continued to commit the offence of adultery even after the decree of judicial Separation. Though in the earlier proceedings for judicial separation adultery was a ground for relief, that does not mean some other wrong is to be made out subsequent to the decree of judicial separation under Section 23(1)(a) to deny relief of divorce under Section 13(1A) of the Act. The Court held that the husband who continued to live in adultery even after decree at the instance of the wife could not succeed
170. Bai Mani v. Jayantilal Dahyabhai AIR 1979 Guj. 209.
171. Soundarammal v. Sundara Mahalinga Nadar AIR 1980 Mad. 294.
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CH. 9 : DISSOLUTION OF MARRIAGE 287
in a petition seeking decree for divorce and that Section 23(1)(a) barred the relief. Illegality and immorality cannot be countenanced as aids for a person to secure relief in matrimonial matters. In this case the court deviated from its earlier stand and stated that a new fact or circumstance amounting to be wrong different from which is taken in the earlier decree could be the basis of denial of relief in the subsequent proceedings under Section 13(1A) of the Act is no longer applicable. Divorce can be refused even if the earlier wrong continued after the passing of decree and continued to survive during the subsequent decree. Emphasis is on commission of wrong for the application of Section 23(1)(a) when decree for divorce is granted by the court.
In Hirachand Srinivas Managaonkar v. Sunanda172, the husband was living in adultery with another lady during the subsistence of marriage. Wife filed the petition for judicial separation on the ground of the husband leading an adulterous life. Decree was granted in favour of the wife but the husband continued to live with the mistress. Husband applied for divorce under Section 13(1A) after one year of the decree of judicial separation. Court refused to grant divorce as Section 23(1)(a) barred the relief of divorce. Court made the following observations:
“Living in adultery on the part of the husband in this case is a continuing matrimonial offence. The offence does not get frozen or wiped out merely on passing of a decree for judicial separation which as noted earlier merely suspends certain duties and obligations of the spouses in connection with their marriage and does not snap the matrimonial tie. The husband who continued to live in adultery even after decree at the instance of the wife could not succeed in a petition seeking decree for divorce and that Section 23(1)(a) barred the relief.”
This case followed the similar view as taken up by the Madras High Court in Soundarammal v. Sundara Mahalinga Nadar173 stated that there is no need to have new facts amounting to be wrong subsequent to passing of decree of judicial separation or restitution of conjugal rights to deny relief of divorce under Section 13(1A) of the Act. When the facts amounting to be wrong continued after passing of the decree of judicial separation and survived during subsequent decree while seeking dissolution of marriage by decree of divorce, Section 23(1)(a) barred the relief.
In Geetha Lakshmi v. G.V.N.K. Sarveswara Rao, 174 the wife filed the petition under Section 9 of the Act for restitution of conjugal rights as the husband had withdrawn from the society of the wife without any reasonable excuse.
172. Hirachand Srinivas Managaonkar v. Sunanda AIR 2001 SC 1285.
173. Soundarammal v. Sundara Mahalinga Nadar AIR 1980 Mad. 294.
174. Geetha Lakshmi v. G.V.N.K. Sarveswara Rao AIR 1983 AP 111.
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Wife was able to obtain a decree of restitution of conjugal rights. After the passing of the decree, the husband did not comply with the decree and illtreated her as well as her children and threw her out of the house. It was not just the case of not complying with the decree, rather the husband had ill-treated the wife subsequent to the passing of the decree and thrown her out of the house which was a fresh and new act of wrong. In such a case the court declined the relief to the husband under Section 13(1A) of the Act.
Division Bench of the Andhra Pradesh High Court held as follows: -
“Before and after the amendment of the Hindu Marriage Act, the provisions of Section 13 are subject to provisions of Section 23(1)(a) of the Act. The amendment to Section 13 must be limited to the extent to which the amendments have been made. They cannot be given an extended operation. Section 13 cannot be taken out of the limits of Section 23(1)(a). If it were otherwise, the Parliament would have added the words “notwithstanding anything to the contrary” in Section 23(1)(a) or would have suitable amended Section 23 (1)(a) itself, as it was well aware of the provisions of Section 23(1)(a) when Section 13 was amended.”175
In T. Srinivasan v. T. Varalakshmi176, after the marriage, the husband and his family were demanding gifts from the parents of the wife. Wife left the matrimonial home feeling harassed. Husband applied for the decree of restitution of conjugal rights and granted with the relief. But in spite of the decree, the husband did not allow her to enter the house, rather he drove her away and misbehaved with her relations. The wife made every attempt to join the company of the husband by sending notices where she expressed her desire to join the company of the husband but he refused to allow her to join his company. Court held that these acts of the husband were positive wrongs amounting to ‘misconduct’ and husband should not be allowed to take advantage of his own wrong as per S. 23(1)(a) of the Hindu Marriage Act, 1955. The Court denied him relief under S. 13(1A) of the HMA.
In Saroj Rani v. Sudarshan Kumar177, wife was mistreated by the husband as well as by the in-laws and the husband turned the wife out of his house and withdrew himself from her society. Wife filed the petition for restitution of conjugal rights. Decree of restitution of conjugal rights was passed based on the consent of the parties. There was no cohabitation between the parties for one year and the husband applied for dissolution of marriage by divorce under Section 13(1A) of the HMA. Wife opposed the divorce petition that the husband deliberately consented for decree of restitution of conjugal rights and had intention not to comply with the decree of restitution of conjugal
175. Geetha Lakshmi v. G.V.N.K. Sarveswara Rao AIR 1983 AP 111.
176. T. Srinivasan v. T. Varalakshmi AIR 1999 SC 595.
177. Saroj Rani v. Sudarshan Kumar AIR 1984 SC 1562.
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rights so that when the statutory period of one year is over without any cohabitation, he could get the divorce. Therefore, he should not be allowed to take advantage of his own wrong as per Section 23(1)(a) of the Act. Court held that conduct of the husband cannot be considered to be wrong within Section 23(1)(a) of the Act so as to disentitle him to get a decree for divorce. Court further held that marriage is already over between the parties and in such a situation the parties cannot be expected to live together as husband and wife; and it is better to grant divorce and close the chapter.
The 71st Law Commission Report dealing with irretrievable breakdown of marriage as grounds of divorce suggested changes under Section 13 and 23(1)(a) of the Act. According to the report, a new Section 13C dealing with the irretrievable breakdown of marriage as grounds of divorce should be added and excluded from the scope of section 23(1)(a). Fault or guilt of the party while granting divorce on the basis of irretrievable breakdown of marriage should be regarded as irrelevant. General and specific prohibition contained in section 23(1)(a) would be inappropriate in case of irretrievable breakdown. Law commission recommended “and except in cases where the petition is presented under section 13C” should be inserted after Section 5 in Section 23(1)(a) of the HMA.178 These are changes suggested by the Law Commission but never implemented.
In 1964 breakdown of marriage which was introduced by way of amendment never touched upon any changes to be introduced in Section 23(1)(a). Therefore Section 23(1)(a) continues to apply to proceedings under section 13(1A) while granting decree of divorce.
The ‘wrong’ as mentioned in the Section 23 (1)(a) must be a serious misconduct and mere refusal to cohabit with the spouse would not be considered wrong. Simply because a party does not want to be united with the spouse owing to the unreconciled differences, it will not disentitle the party to claim remedy under the Act.179
In the case of Nityanand Karmi v. Kum Kum Karmi180, the Court emphasised that there should be harmonious construction of the provisions of Section 13(1A) and Section 23(1)(a) of Hindu Marriage Act, 1955. The wrong committed by the party is relevant to the entitlement of relief under the Act. The interaction between Section 13(1A) and Section 23(1) is one of the most controversial points in the Hindu Marriage Act, 1955. Thus, in all those cases where Section 23 is not attracted, Section 13(1A) has enabled even defaulting spouses to get relief under the Act. But Section 13(1A) has not
178. Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511.
179. Dharmendra Kumar v. Usha Kumar (1977) 4 SCC 12.
180. Nityanand Karmi v. Kum Kum Karmi (2002) SCC OnLine Cal 556.
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status of the marriage. This step will further check the social problems of bigamy, succession, maintenance and custody of children in case of divorce. HMA has undergone amendments in 1976 and the concept of divorce was liberalised with the inclusion of divorce by mutual consent and discussions are going on to introduce irretrievable breakdown of marriage as a ground of divorce. With these developments getting divorce from the court of law has not remained difficult. Time has come to say goodbye to the old traditional outdated practices of customary divorces to promote equality and justice in the society. There is need to maintain uniformity of law as in case of customary ceremonies recognised under HMA but the courts have tried to maintain uniformity of law by emphasizing about registration of marriage and law has been made in different states for compulsory registration of marriages. Similarly in case of customary divorce parties should be free to obtain it privately but to maintain uniformity parties should seek it from the court of law or to get declaration from the court about the existence and validity of customary divorce. Protecting arms of courts and legislature is a must in case of divorce as it is going to affect the status of parties and marriage is ultimately going to be dissolved for future time to come.
9.6 IRRETRIEVABLE BREAKDOWN OF MARRIAGE AS A GROUND OF DIVORCE
Irretrievable breakdown of marriage is marriage with the impossibility of revival and it is a marriage beyond any repair. In such marriages the parties are living separately for many years and not willing to live together and have no prospects of any marital relationship. This is a marriage which just exists on papers and not in reality. Irretrievable breakdown of marriage is a ground available for divorce in several developed countries, but it is not available under Hindu Marriage Act and Special Marriage Act. Hindu Marriage Act and Special Marriage Act lays down many grounds to seek divorce, but there is no mention of irretrievable breakdown of marriage as a ground of divorce. The Supreme Court has, in order to do complete justice, utilized its power under Article 142 of Indian Constitution to grant divorce on the basis of irretrievable breakdown of marriage. The Supreme Court of India in Shilpa Shailesh v. Varun Srinivasan230 has explained the scope and nature of its power in Article 142. A Constitution bench of five judges laid down the scope of power of the Supreme Court under Article 142 in cases of divorce based on irretrievable breakdown of marriage and stated that power under Article 142 is discretionary which is utilized by the court depending upon facts and circumstances of each case.
230. Shilpa Shailesh v. Varun Srinivasan 2023 SCC Online SC 544.
With the change in socio economic condition of the society, spouses became more and more independent and marriage has started to lose its sanctity as a permanent union. With the progress of education, communication technology, and equal opportunity in employment the divorce ceases to be a social stigma leading to liberalization of divorce rules including more and more grounds to seek divorce under Hindu Marriage Act, 1955. With regard to the evolution of laws relating to divorce, earlier the divorce was available only on the ground of fault or guilt-based theory which was a very time taking and cumbersome process, causing mental and physical trauma to both the parties. Based on this theory, if a party is not able to prove the matrimonial offence, then the petitioner is not able to get the remedy of the divorce, and parties remain tied in a marriage, which has no substance left for them. In order to deal with such a situation where the fault theory fails and parties are not able to get relief and relationship is already strained, the Law commission in its 71st report has suggested irretrievable breakdown of marriage as a separate cause for getting divorce under Hindu Marriage Act. The 71st law commission was introduced in 1978 suggesting that irretrievable breakdown of marriage should be included as separate grounds for getting divorce under Hindu laws. It emphasised the separate period of three years as a criterion for divorce. On the basis of this report, the marriage laws amendment bill of 1981 was introduced in the Parliament, but it lapsed due to opposition from the women organisations.
This was followed by a large number of debates to include irretrievable breakdown of marriage as a distinct and separate ground of marriage, but it met with a lot of resistance and was ultimately withdrawn. The main reason for opposition of irretrievable breakdown of marriage as a separate ground for dissolution of marriage is that Hindu Marriage Act already includes divorce by mutual consent where the parties mutually agreed to live separately and were not able to live together, which emphasis break down of their marriage But that was by mutual consent of parties which required consent of both parties, and if one of the party is not willing to give his or her consent for divorce, then there is no chance of divorce could be happening on the basis of mutual consent of parties. But in case of breakdown of marriage, the court just have to consider about the stability of relationship between the parties and if court finds that there is no chance of reconciliation between the parties and even if such marriage is not dissolved, it will be case of just having parties married on papers and in reality, it does not exist
In Naveen Kohli v. Neelu Kohli231, Supreme Court suggested the Government of India to include irretrievable breakdown of marriage as a reasonable 231. Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558.
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ground for granting divorce under Hindu Marriage Act. The breakdown theory of divorce emphasizes that when parties are forced to live together because of marital ties and in reality, they cannot live together peacefully then it is better to snap such relationships rather than continuing with this unhappy union. There are many cases which have come before the court of law where the parties are living separately for very long period of time or where the wife has lived only for a few months after the marriage and she left the matrimonial home, and the parties are fighting for a long time before the court of law on the basis of cruelty and desertion against each other making allegation and counter allegation and then marriage has broken down beyond the chances of any repair. Then, in such cases, justice requires that decree of divorce should be granted to both the parties so that they can live separately, but remain in peace.
With time, it was realized that Section 13(1A) and 13B of Hindu Marriage Act are not able to fulfil the situation in many cases where the parties are not able to get the decree on the basis of fault theory or they do not agree mutually to dissolve the marriage though marriage has broken down beyond repair then parties should not be expected or compelled to live with each other. In such a deadlock situation irretrievable breakdown of marriages as a ground to seek divorce is to be seen as a solution to come out of an unbearable situation created due to high-level of tension in the marriage. Irretrievable breakdown the theory of divorce can serve for the betterment of parties as well as children to maintain peace in the society. Nothing could be served by keeping the parties to remain in marriage which has ceased to exist. In Dastane v. Dastane232 parties fought for more than 10 years and husband’s demand for judicial separation was dismissed by the court on the ground of condonation. Matrimonial relations between the parties were completely destroyed. In such a situation Breakdown of marriage can serve a useful purpose by maintaining peace and harmony in the society and bring an end to a marriage which has lost its very basis and foundation. Even children are the major sufferers of such marriages where parents are fighting with each other and not able to maintain peace in the house which can cause mental trauma to the kids.
A large number of developed nations have already introduced irretrievable breakdown of marriage as a separate ground for divorce, and divorce laws have been changed over a long period of time and have become more liberal so that if the parties are not willing to live together then dissolution of marriage should not be a difficult process. The Supreme Court also granted remedy of divorce in many cases when it was realised that marriage has already lost the basic foundation and nothing sacred is left between the par232. AIR 1975 SC 1534.
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ties. Parties to Marriage has lost trust, love and affection. Though till date, there is no specific provision for irretrievable breakdown of marriage as a ground of divorce, but the Supreme Court has over a period of time used its jurisdiction conferred under Article 142 of the Constitution, to administer justice for the parties in marital procedures. Court realised that in extreme cases when the parties are only involved in abusing each other and their marriage has totally collapsed and it cannot be rebuilt at any cost, then the court must provide for decree of divorce on the ground of irretrievable breakdown of marriage. Irretrievable breakdown has not been formally recognised under Hindu Marriage Act, but informally it has been recognised by the court in many cases. The law commission in the 217th report again suggested that irretrievable breakdown of marriage as a ground of divorce must be added as a specific provision under the Marriage Act. It is high time that now this theory should be introduced into the Hindu Marriage Act as with the growth and liberalisation of grounds of divorce there is dire need to include specific provision relating to irretrievable breakdown of marriage as a ground of divorce.
9.6.1
Exercise of power by the Supreme Court of India
In Rajib Kumar Roy v. Sushmita Saha233, parties were living separately from each other for the last 12 years. Supreme Court granted divorce on the basis of continued bitterness, dead emotions and long separation. Court stated that these circumstances amount to irretrievable breakdown of marriage. The Court held that “Continued bitterness, dead emotions and long separation, in the given facts and circumstances of a case, can be construed as a case of “irretrievable breakdown of marriage”, which is also a facet of “cruelty”. We therefore declare the marriage to have broken down irretrievably and therefore in exercise of our jurisdiction under Article 142 of the Constitution of India we are of the considered opinion that this being a case of irretrievable breakdown of marriage must now be dissolved by grant of decree of divorce.”
In Poonam v. Surinder Kumar234, Supreme Court observed that parties were living separately from each other for more than 19 years and they are not able to save the marriage, and there is no companionship between the parties. Therefore, the court granted divorce on the basis of irretrievable breakdown of marriage. In Nirmal Singh Panesar v. Paramjit Kaur Panesar235 Supreme Court did not grant the divorce on irretrievable breakdown of marriage because the wife was ready and willing to undertake the marital obligations.
233. Rajib Kumar Roy v. Sushmita Saha 2023 SCC Online (SC) 1221.
234. Poonam v. Surinder Kumar 2022 SCC Online SC 2200.
235. Nirmal Singh Panesar v. Paramjit Kaur Panesar 2023 SCC Online SC 1297.
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Parties were above the age of 80 years and the wife was ready to live with her husband and did not want to leave the husband at this stage of life and did not want to die with the stigma of being a divorced woman. In Delma Lubna Coehlo v. Edmond Clint Fernandes236, parties to marriage lived together only for 40 days and court refused to exercise its power under Article 142, stating that there are chances that parties may reconcile their differences. Therefore, it is clear that the Supreme Court has not followed any straight jacket formula for exercise of power under Article 142 and stated that it depends upon facts and circumstances of each case to exercise power under Article 142 as power is discretionary to grant relief. The exercise of power by the Supreme court, while granting divorce on the basis of irretrievable breakdown of marriage, though express provision is absent in the Hindu marriage act reflect the practical approach of the Supreme Court to fill up the gap in the statute when there is strong requirement from the facts and circumstances to give the relief. This exercise of power reflects the judicial activism approach of the Supreme Court.
In Vikas Kanaujia v. Sarita237, both the parties to the marriage were professionally, qualified, medical doctors, and have sufficient and equal earnings. After marriage, parties have not lived together for more than 43 days, wife left the matrimonial home within the first month of marriage and parties are living separately for the last 22 years. In the last 22 years, parties were fighting with each other and filed six cases against each other, including criminal cases even the family members of the husband were arrested, although subsequently discharged and acquitted, the mediation and conciliation proceedings have already failed. Court granted the decree of divorce on the basis of irretrievable breakdown of marriage by exercising its power under Article 142 of the Constitution of India, Court held that, “Thus, the effective cumulation of actions of both the parties in the past 22 years since marriage has resulted in demolition of their matrimonial bond beyond repair. The marriage has ceased to exist both in substance and in reality. The relation has even taken a sour taste as the families of parties have also developed rivalries. The Act of Respondent to lodge a missing complaint against Appellant after the delivery of impugned order is also indicative of the bitter relation between the parties. Considering the long separation period of 22 years, lack of existence of marriage between the parties and the sour relations developed due to continuous legal battles, we deem this case to be fit for exercise of extraordinary powers conferred under Article 142 of the Constitution.”
236. Delma Lubna Coehlo v. Edmond Clint Fernandes 2023 SCC online SC 440.
237. Vikas Kanaujia v. Sarita 2024 SCC Online SC 1699.
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A constitution bench of Supreme Court in Shilpa Shailesh v. Varun Srinivasan238 held that in such cases where there is irretrievable breakdown of marriage then dissolution of marriage is the only solution and this Court can grant a decree of divorce in exercise of its power under Article 142 of the Constitution of India. The Court in this case dealt with the issue that “Whether this Court can grant divorce in exercise of power under Article 142(1) of the Constitution of India when there is complete and irretrievable breakdown of marriage in spite of the other spouses opposing the prayer? This question is also answered in the affirmative, inter alia, holding that this Court, in exercise of power under Article 142 (1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do ‘complete justice to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. The Court, as a court of equity, is required to also balance the circumstances and the background in which the party opposing the dissolution is placed.”
In Rinku Baheti v. Sandesh Sharda239, parties got married as per Hindu rites and ceremonies at Pune. This was a second marriage for both parties. The husband got divorce from his first wife and he had two sons from his first marriage. From the inception of marriage parties were not maintaining cordial relations. Within a period of one year from the date of marriage the husband filed the first divorce petition and was dismissed. A second joint petition was filed which was also dismissed because Section 13(1B) of Hindu marriage act was not complied with, this one followed by the third divorce petition on the basis of cruelty, so within the span of 34 days, the respondent or husband filed the three divorce petitions, these facts indicate that there was no cordial relationship between the parties to the marriage. The husband filed the application under Article 142(1) of the Constitution asking for divorce on the basis of irretrievable breakdown of marriage as a ground of divorce as there were numerous litigations filed by both parties against each other. Wife, even filed criminal case against husband as well as father-in-law where she mentioned physical, sexual, mental, emotional abuse, and grave offences like cheating cruelty, rape under Indian Penal Code. Husband even got arrested due to the FIR filed by the wife and he had to spend almost a month in custody before he was released on bail. The father-in-law was also put under difficulty because of the marital dispute between the husband and wife. Then the husband filed the present applica-
238. Shilpa Shailesh v. Varun Srinivasan 2023 SCC Online SC 544
239. Rinku Baheti v. Sandesh Sharda 2023 SCC Online SC 2334.
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tion under Article 142(1) of the Constitution before the Supreme Court of India seeking decree of divorce on the basis of irretrievable breakdown of marriage as a ground of divorce. The court made the observation as under:
“This Court has to reach the conclusion that the marriage has “completely failed” and there is no possibility of the parties cohabiting together as husband and wife, and that the continuation of the formal legal relationship of marriage is unjustified lacking in substance and content. Unlike a divorce proceeding before the Family Court, where the Court is bound by the fault-divorce provisions contained in the HMA and other allied legislations and thus has to necessarily appreciate the evidence to give a finding about whether a party had indeed committed the alleged matrimonial offence or not, this Court while dealing with an application seeking divorce under Article 142(1) of the Constitution can depart from the said procedure as well as the substantive laws by acting as a problem solver and balancing out the equities between the conflicting claims. This Court is therefore not required to look deep into the veracity of the detailed allegations made by the parties against each other to find as to who is at fault, but is required to take a holistic view on the relationship between the parties and conclude if there is an irretrievable breakdown of the marriage and the parties have no scope of reconciliation. Thus, the thrust of considering an application under Article 142(1) of the Constitution is in order to ascertain whether there is an irretrievable breakdown of marriage between the parties and as a result, it is in their interest that they should part ways by passing a decree of divorce by exercising jurisdiction under Article 142(1) of the Constitution and thereby doing complete justice between the parties. Thus, this is a fit case for us to exercise our discretion under Article 142(1) of the Constitution of India to dissolve the marriage between the parties on the ground of irretrievable breakdown of marriage.”
In Gayathri Mohapatra v. Ashit Kumar Panda240, parties to marriage were highly educated. Husband was an IPS officer and the wife was an MBBS doctor. Wife filed the false complaint against the husband on the ground that he is demanding dowry worth ` 5,00,00, a car and on non-fulfilment of such demand she is being beaten by the husband. She also made an allegation that husband was involved in adultery with the lady. She made a false complaint against the husband to the higher officers and Director General of Police, Uttar Pradesh. The husband made the allegation that the wife expressed his unwillingness to live with the husband and insulted him by saying that the standard of living of his and his family members is very low and even the employees of her parents used to get higher salary than the husband. Court Granted the relief of divorce to the husband on the basis of such instances, causing mental cruelty to the husband. Court reminded the Government of
240. Gayathri Mohapatra v. Ashit Kumar Panda 2022 SCC OnLine All 1701.
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India for inclusion of the ground of irretrievable breakdown of marriage as the ground to divorce under the provisions of Hindu Marriage Act. Court made the following observation:
“Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into service, the divorce cannot be granted. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties. The power to dissolve marriage on the ground of irretrievable breakdown is exercised in rare cases, and not in routine, in the absence of legislation on this behalf… In Munish Kakkar v. Nidhi Kakkar241, power of the Supreme Court was upheld to dissolve the marriage on the ground of irretrievable breakdown, under Article 142 of the Constitution of India, when the marriage is unworkable, emotionally dead, beyond salvage and has broken down irretrievably. It was emphasised in this case that discretion is vested only with Supreme Court to grant divorce under Article 142 of the Constitution of India, on the ground of on the basis of irretrievable breakdown when the marriage “is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably.”242
Division Bench of Allahabad Court in Reeta v. Ankit Kumar, 243 held that—
“the power to grant divorce on the ground of irretrievable breakdown of marriage is not available to this Court or any other Court under Section 13 of the Hindu Marriage Act, 1955. The power can only be exercised by the Supreme Court under Article 142 of the Constitution.”
In Deepak Bose v. Shrabonee Bose244, age of the wife and her marital status has been concealed from the husband at the time of marriage, six years after the marriage, the husband came to know that she is three years older than him and was the divorcee at the time of marriage. Wife did not help to look after the old and ailing mother of the husband. The wife specifically denied all these allegations of the husband and alleged that the husband is drunkard and has a number of women friends. Parties were living separately from each other for the last 14 years after the wife left the matrimonial home. Court granted the decree of divorce stating that wife is guilty of desertion
241. Munish Kakkar v. Nidhi Kakkar AIR 2020 SC 111.
242. Ibid
243. Reeta v. Ankit Kumar AIR 2021 All 225.
244. Deepak Bose v. Shrabonee Bose 2022 SCC OnLine All 1967.
322
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without reasonable cause and without the consent of the aggrieved party which amounts to cruelty under section 13(1)(ia) of Hindu Marriage Act. The court further stated that it has no power to grant a decree of divorce on the ground of irretrievable breakdown of marriage under Section 13 of Hindu Marriage Act, 1955.
In Siva Sankaran v. Santhimeenal245, the wife left the marriage hall late at night and there was no consummation of marriage. As marriage turned out to be a total failure and due to this husband filed the petition for divorce on the ground of cruelty. Wife filed the petition for restitution of conjugal rights alleging that husband and his family demanded dowry and he refused to cohabit with her. Husband filed the petition for divorce under Section 13(1)(ia) on the ground of cruelty and decree of divorce was granted to him on the ground of irretrievable breakdown of marriage. Immediately after the decree, the husband got married for the second time after 6 days. Then the wife filed the appeal before the ADJ and the Court set aside the divorce decree. Aggrieved by this husband filed appeal before the Madras High Court and Court restored the divorce decree. Litigation continued between the parties for 15 years. Wife filed the review petition before the Supreme Court alleging that High Court and District Court has no power to grant divorce on the basis of irretrievable breakdown of marriage. The Apex Court allowed the review petition, aggrieved by his, husband filed the Civil Appeal before the Apex Court. The Supreme Court granted the decree of divorce on the grounds of irretrievable breakdown of marriage and mental cruelty as the wife filed multiple cases against the husband and there was prolonged separation between the parties.
In the case of R. Srinivas Kumar v. R. Shametha246, wife submitted to the court that it cannot dissolve the marriage under Article 142(1) of the Constitution of India, on the ground of irretrievable breakdown of marriage, without the consent of both the parties. Court made the following observations:
“Now so far as submission on behalf of the respondent wife that unless there is a consent by both the parties, even in exercise of powers under Article 142 of the Constitution of India the marriage cannot be dissolved on the ground of irretrievable breakdown of marriage is concerned, the aforesaid has no substance. If both the parties to the marriage agree for separation permanently and/or consent for divorce, in that case, certainly both the parties can move the competent court for a decree of divorce by mutual consent. Only in a case where one of the parties do not agree and give consent, only then the powers under Article 142 of the Constitution of India are required to be invoked to do the substantial justice between the parties, considering the facts
245. Siva Sankaran v. Santhimeenal (2022) 15 SCC 742.
246. R. Srinivas Kumar v. R. Shametha (2019) 12 SCR 873; Munish Kakkar v. Nidhi Kakkar AIR 2020 SC 111.
