Source: Allahabad High Court 

Why in News? 

Recently, the Allahabad High Court in the matter of Mahendra Kumar Singh v. Rani Singh has held that to infer whether there is breakdown of marriage irretrievably on the ground that parties are not staying together for a long period should be made only by considering the facts and circumstances of the case. 

What was the Background of the Mahendra Kumar Singh v. Rani Singh Case? 

• In this case, parties tied up in wedlock in 1999 and had two children out of it. 
• After few years father of the appellant died and thereafter, appellant was posted in Mirzapur, while his wife and children stayed back with his mother in Varanasi till the death of appellant's mother. 
• The appellant later filed for divorce before the Family Court. 
• The Appellant stated that he and his wife (defendant) had good relations because of the care his wife provided to his mother and his mother also made a Will in favor of the defendant. 
• The Appellant argued that the defendant used to perform cruelty with him by stopping him from visiting his parents, by stopping him from performing last rites of his parents, etc. 
• The appellant also argued that as the couple stayed separately for a long time, there is an irretrievable breakdown of marriage.  
• The Family Court dismissed the plea for divorce on the ground of irretrievable breakdown of marriage and stated that there is no evidence to prove the act of cruelty by the defendant against appellate.  
• The appellant then filed an appeal before the Allahabad High Court.  

What were the Court’s Observations? 

• It was observed by the Allahabad High Court that the findings of the lower court are correct. 
• It was also observed by the High Court that the grounds of irretrievable breakdown of marriage should be closely scrutinized before granting divorce as the reason for such separation may differ on a case-to-case basis. 
• The High Court stated that in the present case, the reason for separately living was that the husband went for job and the wife stayed with his mother to take care of hers, this could not be considered as a reason for a ground for irretrievable breakdown of marriage. 
• The High court also stated that there is no witness, no proper time and date and no relevant evidence to prove the cruelty by wife against the husband and her towards the mother of her husband proves otherwise.  
• Therefore, the High Court dismissed the appeal. 

What is the Concept of Divorce under Hindu Marriage Act, 1955? 

Divorce: 

• In a literal sense, "divorce" refers to the legal dissolution of a marriage between two individuals. 
• Historically, within Hindu Dharma Shastra, marriage was seen as a sacred and indissoluble bond, with no provisions for divorce until the enactment of the Hindu Marriage Act in 1955 (HMA). 
• This Act, introduced grounds for divorce under Section 13, allows parties to petition a competent court for a divorce decree.  
• Dissolution of a marriage required one spouse to be found guilty of behavior that fundamentally undermined the marriage.  

Types of Divorce: 

• There are following types of Divorce: 
  • Contested divorce: 
    • When either party may take a divorce 
    • When the wife can alone take a divorce 
  • Irretrievable breakdown of marriage 
  • Divorce by mutual consent 
  • Divorce by custom 

Grounds for Divorce: 

• Section 13 of HMA deals with the grounds for divorce. — 
  • 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—  
    • Has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or  
    • Has, after the solemnization of the marriage, treated the petitioner with cruelty; or  
    • Has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or 
    • Has ceased to be a Hindu by conversion to another religion; or  
    • Has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.  

Explanation. —In this clause, — 

The expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;  

The expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub—normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or] been suffering from venereal disease in a communicable form; or  

• Has renounced the world by entering any religious order; or  
• Has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;  

Explanation.—In this sub-section, 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.]  

• 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—  
  • 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  
  • 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 a decree for restitution of conjugal rights in a proceeding to which they were parties. 
• A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground, —  
  • In the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner. 
  • Provided that in either case the other wife is alive at the time of the presentation of the petition; or  
  • That the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or 
  • That in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under section 125 of the Code of Criminal Procedure, 1973, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.  
  • That her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
    Explanation. —This clause applies whether marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976.  

Difference Between Divorce and Judicial Separation: 

What is the Concept of Irretrievable Breakdown of Marriage? 

Origin: 

• This concept was originated in New Zealand in 1921 through the historical decision in Lodder v. Lodde.  

Meaning: 

• The irretrievable breakdown of marriage is a situation in which the husband and wife have been living separately for a considerable period and there is absolutely no chance of them living together again.  
• It means a marriage has no scope to be reconciled and if reconciled and divorce not granted then it will amount to cruelty. 

Validation: 

• This Principle has attained informal validity as it has been evoked in several judicial decisions granting divorce. 
• In India, incorporation of such ground for divorce in HMA has not yet been made but it has been strongly suggested by various Law Commission Reports and a Bill was presented in this regard in the Parliament titled The Marriage Laws (Amendment) Bill, 2010. 

Article 142 of the Constitution of India, 1950: 

• This concept is also covered under Article 142 of the Constitution of India, 1950 where Supreme Court has the discretionary power to grant divorce on the ground of Irretrievable Breakdown of Marriage after considering the reason of separation, time of separation, and other factors. 

Case Laws

• Naveen Kohli v. Neelu Kohli (2006), In this case it was held that when marriage has no substance then it is said to be broken irretrievably. 
• Kanchan Devi v. Promod Kumar Mittal (2010), the Delhi High Court reiterated the principle that if a marriage has broken down irretrievably and there is no chance of the spouses coming together, it is a valid ground for divorce. 
• Shilpa Sailesh v. Varun Sreenivasan (2023), the Supreme Court has clarified that Article 142 of the COI does not confer a right of divorce on the parties if the marriage has broken down, rather it is a matter of discretion that only the Supreme Court can exercise by analyzing the various factors. These factors may include the period of separation, the nature of the allegations made by the parties, how many times the courts have intervened, etc.