Irretrievable breakdown of marriage is not a ground for divorce in India under Hindu Marriage Act.

In the matter of Darshan Gupta vs. Radhika Gupta, (2013) 9 SCC 149. Towards the same end, the learned counsel for the appellant advanced yet another submission. The learned counsel representing the appellant sought dissolution of marriage on the ground that the matrimonial ties between the parties had irretrievably broken down. It was, therefore, the contention of the learned counsel for the appellant that this Court would be justified in annulling the marriage between the parties, especially when the parties have lived apart for more than 12 years. Inviting this Courts attention to the intervention at the instance of this Court, in compliance wherewith the parties had made a last-ditch effort to live together, and had actually taken up residence in an independent flat in Hyderabad on 29-9-2011, it was pointed out that they could not persuade themselves into a relationship of cordiality. It was, therefore, sought to be suggested that there was no likelihood of the parties ever living together as husband and wife. It was accordingly submitted that this Court should consider the annulment of the matrimonial ties between the parties on the ground of irretrievable breakdown of marriage.

At the present juncture, it is questionable as to whether the relief sought by the learned counsel for the appellant on the ground of irretrievable breakdown of marriage is available to him. The reason for us to say so is based on a judgment rendered by this Court in Vishnu Dutt Sharma v. Manju Sharma, wherein this Court has held as under:

10. On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.

If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for Parliament to enact or amend the law and not for the courts. Hence, we do not find force in the submission of the learned counsel for the appellant.

There has been a lot of brainstorming with regard to the efficacy and societal impact that this ground would have if it is made as a ground for divorce. On the recommendations of the Law Commission of India, the Legislature in its wisdom would amend the Hindu Marriage Act to bring within its fold the ground of irretrievable breakdown of marriage. However it is expected that watertight safeguards are introduced so as not to send the message that now divorce has become a cakewalk.

In the matter of Sangeetha Vs Jitender Bhandari, The Hon’ble Madras High Court held that” Coming to the point raised by the learned Senior Counsel for the respondent/husband that there is irretrievable breakdown of marriage, the same cannot be invoked in this case, as one of the parties, viz. the appellant/wife is interested in living with the respondent/husband, which is quite evident from the fact that she did not even think of filing a petition claiming monthly maintenance from her husband. That apart, irretrievable breakdown of marriage has not been incorporated as a ground for divorce under the Hindu Marriage Act, 1955 and this Court is unable to accept the contention of the learned Senior Counsel appearing for the respondent to grant divorce on the ground of irretrievable breakdown of marriage.”

Divorce on grounds of Mental & Physical Cruelty under Hindu Marriage Act. Judgement

Divorce on grounds of Mental & Physical Cruelty under Hindu Marriage Act.

The expression 'cruelty' has not been defined in the Hindu Marriage Act. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes a reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Cruelty can be physical or mental. In the present case there is no allegation of physical cruelty alleged by the plaintiff. What is alleged is mental cruelty and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. It is settled law that the instances of cruelty are not to be taken in isolation but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse. In the decision in Samar Ghosh case (supra), this Court set out illustrative cases where inference of 'mental cruelty' can be drawn and they are only illustrative and not exhaustive.

The Honourable Supreme Court in Savitri Pandey vs. Prem Chandra Pandey, reported in (2002) 2 SCC 73, has held as follows:

6. Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(ia) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly shows that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life

. In Suman Singh vs. Sanjay Singh, reported in (2017) 4 SCC 85, the Apex Court has held that:

12. The word "cruelty" used in Section 13(1)(ia) of the Act is not defined under the Act. However, this expression was the subject matter of interpretation in several cases of this Court. What amounts to "mental cruelty" was succinctly explained by this Court (three Judge Bench) in Samar Ghosh vs. Jaya Ghosh [(2007) 4 SCC 511]. Their Lordships speaking through Justice Dalveer Bhandari observed that no uniform standard can ever be laid down for guidance, yet it is appropriate to enumerate some instances of human behavior which may be considered relevant in dealing with the cases of "mental cruelty". Their Lordships then broadly enumerated 16 category of cases which are considered relevant while examining the question as to whether the facts alleged and proved constitute "mental cruelty" so as to attract the provisions of Section 13 (1) (ia) of the Act for granting decree of divorce.