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‘wear and tear of marriage’, Supreme Court granted divorce on account of irretrievable breakdown of marriage and also on ground of cruelty


Recently Supreme court has granted divorce to a couple observing the cruelty against husband in multiple occasion that the wife had filed multiple litigations, abuse of the process of law, seeking initiation of disciplinary proceedings for removal from job.

The Supreme Court on September 13, 2021, the Bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy, observed the ground of irretrievable breakdown of marriage and the ground of cruelty while passing a decree of divorce. The bench observed that the couple were separated for almost 20 years and the marriage was never consummated and also observed harassment with husband in multiple occasion.

“The fact that there have been continued allegations and litigative proceedings and that can amount to cruelty is an aspect taken note of by this court.”

The bench said this matter a ‘crash landing”.

“It appears there was a crash landing at the take-of stage itself! “

The matter

The appellant-husband and the respondent-wife tie the marital knot as per the Hindu rites and customs in the beginning of year 2002.

The husband claims that the wife left the marriage hall late at night and went to Pudukkottai. The relatives of the husband persuaded the woman on the very next day to live with the husband, but was not fruitful. The marriage was never consummated. As the marriage did not work out since its inception.

The marital dispute become ‘Legal battle’ for the reason ‘god knows’.

First Round – Year 2002

The husband applied for divorce under sec 13(1-a) of the Hindu Marriage Act, 1955 (HMA) after 2 weeks of the marriage, but the woman filed under Sec 9 of HMA.

Surprisingly, the respondent filed a petition for restitution of conjugal rights soon thereafter.”, husband claimed.

While the wife (respondent) claimed that the husband (appellant) and his family demanded dowry and, on being unable to oblige, the appellant’s brothers took him away from the Respondent’s company, rendering consummation of the marriage impossible. She claims that it was the appellant who refused to cohabit with her.

Post-trial the husband got the decree in his favor, after almost 5 years in March 2008, he was granted divorce on the ground of “irretrievable breakdown of marriage” (IRMB). The husband then married to another woman after 6 days of the decree.

Second Round – Year 2011

The wife then prefer appeal to the said order, and the appellate court set aside the decree of divorce while allowing the petition for restitution of conjugal rights.

Third round – Year 2018

The husband then reached to the High Court and preferred second appeal and, in terms of judgment of , the decree of divorce granted by the trial court was restored.

Year on Year passed

“Thus, each stage of scrutiny took 5 years, and 15 years passed in the litigation. In this period, the battle between the parties continued.”

But the matter, did not end at this, continued

The wife then filed a review petition on the jurisdiction ground and claimed that the High Court or the trial court has no jurisdiction to grant a decree of divorce on the ground of irretrievable breakdown of marriage. This also posted a question mark on the status of the second marriage of the appellant-husband.

“review petition inter alia on the ground that it was not within the jurisdiction of the High Court or the trial court to grant a decree of divorce on the ground of irretrievable breakdown of marriage.”

The Bench

The bench noted that the efforts to find a acceptable solution between the parties did not succeeded. While the husband-wife are living separated for almost two decades but the wife was not willing to concede the decree of divorce.

“According to the learned counsel for the parties, the respondent was not willing to concede the decree of divorce on any terms even though both the parties are educated and living their separate lives now for almost two decades. In fact, learned counsel for the respondent even stated that she was not disturbed by nor wanted to affect the status of the second marriage; but was unwilling to concede to a scenario where her marriage with the appellant came to an end even though in view of the financial status of the parties no maintenance was being claimed.”

The bench also observed that the parties are not willing to live together or not even thinking of living together.

“the parties are so troubled by each other that they are not willing to even think of living together. This, despite the fact that the respondent keeps on claiming that she is and was always willing to live with him.”

The bench also discussed the 71st report of the Law Commission, where the Commission recommended that the law be amended to provide for ‘irretrievable breakdown of marriage’ as an additional ground of divorce. This recommendation was reiterated by the Law Commission in its 217th Report in 2010. Based on the recommendations, a bill was introduced as the Marriage Laws (Amendment) Bill, 2013 which was never passed.

“71st report (1978), the Law Commission departed from the fault theory of divorce to recognize situations where a marriage has completely broken down and there is no possibility of reconciliation.”

The bench stated that marriage is “an eternal union of two people”.

“Under the Hindu Law, it is sacramental in character and is supposed to be an eternal union of two people society at large does not accept divorce, given the heightened importance of marriage as a social institution in India… even though there may have been a change in social norms over a period of time. Not all persons come from the same social background, and having a uniform legislative enactment is thus, stated to be difficult.”

The bench also discussed about the norms of marriage;

“The norms of a marriage and the varying degrees of legitimacy it may acquire are dictated by factors such as marriage and divorce laws, prevailing social norms, and religious dictates.”

The bench also discussed about the functionality of marriage as;

“Functionally, marriages are seen as a site for the propagation of social and cultural capital as they help in identifying kinship ties, regulating sexual behavior, and consolidating property and social prestige. Families are arranged on the idea of a mutual expectation of support and amity which is meant to be experienced and acknowledged amongst its members. Once this amity breaks apart, the results can be highly devastating and stigmatizing.”

The bench referred the matters of Shilpa Sailesh v. Varun Sreenivasan, R. Srinivas Kumar v. R. Shametha and Munish Kakkar v. Nidhi Kakkar while exercising the power under Article 142 of the Constitution of India. The bench also referred Hitesh Bhatnagar v. Deepa Bhatnagar case which states that a marriage as irretrievably broken down if all efforts have been failed.

“courts can dissolve a marriage as irretrievably broken down only when it is impossible to save the marriage, all efforts have been made in that regard, the Court is convinced beyond any doubt that there is actually no chance of the marriage surviving, and it is broken beyond repair.”

The bench also said that the matter cannot be postponed just because of the pendency of the reference matter is pending at the Constitution Bench to examine for the last 5 years.

“Living together is not a compulsory exercise. But marriage is a tie between two parties. If this tie is not working under any circumstances, we see no purpose in postponing the inevitability of the situation merely because of the pendency of the reference.”

The bench observed that the respondent-wife harassed the appellant-husband in multiple occasions such as, insulted him in front of the students and professors; resorted to filing multiple cases in courts against him; made representations to the college authorities seeking initiation of disciplinary proceedings to ensure that the husband loses his job also filed writ petition; sought service record, ID card, health insurance scheme, permission to own new property through RTI; she is stated to have threatened the appellant of physical harm in front of his colleagues. The bench also said this a ‘wear and tear’ of marriage.

“The moot point is that the marriage has not taken of from its inception. There can hardly be any ‘wear and tear of marriage’ where parties have not been living together for a long period of time. The parties, undisputedly, never lived together even for a day.”

The bench observing the acts of respondent-wife who had filed multiple litigations, considered it a “amount to cruelty” against the husband.

“these continuing acts of the respondent would amount to cruelty even if the same had not arisen as a cause prior to the institution of the petition, as was found by the Trial Court. This conduct shows disintegration of marital unity and thus disintegration of the marriage… The marriage having not taken of from its inception and 5 years having been spent in the Trial Court, it is difficult to accept that the marriage soon after the decree of divorce, within 6 days, albeit 6 years after the initial inception of marriage, amounts to conduct which can be held against the appellant.”

The bench passed the decree of divorce exercising the power under Article 142 of the Constitution of India also on account of cruelty under Section 13(1)(i-a) of the Act.

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