Background
In a recent judgment, the Delhi High Court (DHC) held that family courts cannot grant divorce on the grounds of irretrievable breakdown of marriage observing it is not a ground for divorce under the Hindu Marriage Act, 1955 (HMA). In the matter of Deepti v. Anil, divorce was applied for irreparable breakdown of marriage because,
- the wife had denied conjugal relations, and
- the husband and wife had been living separately for 11 years.
The couple got married in February 2002 and had a daughter in January 2007. According to the husband, they had been living separately since January 2007 and as per the woman since May 2007.
The man filed a divorce plea before the Family Court in 2011 alleging the woman used to exert pressure upon him to separate himself from his family members. The man also alleged that from the first day of marriage, the woman did not allow him to enjoy his conjugal rights most of the times. She allegedly refused for him to have access to her and inflicted cruelty upon him, the man claimed. The Family Court held that the cruelty and desertion had not been proven by the husband but granted the divorce due to denial of conjugal relationship.
Analysis by the High Court
When the matter reached DHC, the bench overturned the fact that the wife had denied conjugal relations. The allegations of the husband were vague and without any specifics. The Court opined that the husband had alleged that he was allowed by his wife only 30-35 times (approximately) to enjoy conjugal relations since their marriage. This clearly showed that there was never complete denial by the wife. Moreover, the fact that a girl child had been born to the parties clearly showed that the allegation by that husband was incorrect. Referring to a 1975 Supreme Court (SC) judgment N.G. Dastane (Dr) v. S. Dastane, the bench clarified that conception of child does not suggest a single act of conjugal relationship and would amount to “condoning the earlier actions of denial of conjugal relationship”, even if one were to assume that such a relationship was denied by the wife.
The DHC further relied on
Chetan Dass v. Kamla Devi and held that the
husband should not be allowed to take advantage of his own wrong for he was found to have deserted his wife and then taken the plea of desertion on her part. He could not be permitted to walk out of the matrimonial alliance on the ground that the marriage had broken down because of his own acts.
Opinions of the Supreme Court
The DHC also relied on a landmark SC case, Shilpa Shailesh v. Varun Sreenivasan, and opined that the power to grant divorce on the ground of irretrievable breakdown of marriage was exercised under Article 142 of the Constitution solely by the Supreme Court. Such a power was not vested in the High Courts let alone the Family Courts.
The Constitutional Bench in SC led by Justice Sanjay Kishan Kaul noted that the court might exercise the same exceptional power to halt ongoing criminal or legal proceedings, whether they involve domestic abuse or dowry. The court spared couples the “misery” to wait 6 to 18 months until a local court declares their annulment to be final. There too, the SC considered several factors and longevity of period was only one of them.
This judgment is significant for irretrievable breakdown of marriage is not yet a ground for divorce under the HMA or Special Marriage Act, 1954 (SMA). The Supreme Court had held that the divorce granted on the ground of irretrievable breakdown of marriage was
not a matter of right, but a discretion to be exercised with great care and caution. Several factors must be kept in mind ensuring that ‘complete justice’ was done to both parties.
The HMA and the SMA are premised on the “fault theory” and “accusatorial principle of divorce” for the purpose of divorce. It allows the innocent party to obtain a divorce if the other party has committed a matrimonial offense. The 5-judge bench in the aforementioned SC case, highlighted that the apex court need not look for these grounds in every matter of divorce.
It is obvious that the Court should be fully convinced and satisfied that the marriage is totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage is the only way forward. Thus, whether the marriage had irretrievably broken down was to be determined and firmly established based on facts and circumstances. The DHC held that in the present case, the Family Court had erred in travelling beyond the scope of its powers to grant divorce.
The Law Commission of India, in its reports in 1978 and 2009 recommended adding irretrievable breakdown as an additional ground of divorce. The Report from 1978 mentions that as far back as 1920, New Zealand was the first Commonwealth country to introduce the provision that a three-year or more separation agreement was grounds for filing a petition in the courts for divorce.
Conclusion
The matter in DHC clears the air about the powers solely held by the Supreme Court under Article 142 of the Constitution of India. When it comes to matters of irretrievable breakdown of marriage, couples may directly approach the Supreme Court for no other courts, whether High Court or Family Court, hold the power to grant divorce where grounds have not been laid down in codified law. Nevertheless, it is not a straitjacket formula. The Supreme Court too shall grant divorce in such tricky cases after a proper analysis of background of the other facts and circumstances. The Courts also reminded that no person can take advantage of their own wrong by committing acts that become grounds for divorce and then applying for divorce themselves.
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