The Court indicated that unless there is cogent evidence of wilful desertion or refusal to cohabit, the marriage cannot be said to have “irretrievably broken down” for a divorce to be granted.
The Supreme Court recently clarified that a divorce cannot be granted, nor can it be assumed that a marriage has “irretrievably broken down,” simply because the spouses are living separately. Before arriving at such a conclusion, courts must determine which spouse was responsible for the separation.
In its November 14 order, the Bench of Justice Surya Kant (now Chief Justice of India) and Justice Joymalya Bagchi expressed concern that many courts have been too quick to treat mere separation as proof that a marriage cannot be repaired.
The Bench stressed that before deciding that a marriage is beyond saving, courts must identify the true cause of the separation — whether one spouse intentionally deserted the other, or whether circumstances beyond their control forced one of them to live apart.
“Courts, in recent times, often observe that since the parties are living separately, the marriage should be taken to have broken irretrievably. However, before jumping to such a conclusion, it is imperative upon the Family Court or the High Court to determine as to who out of the two is responsible for breaking the marital tie and forcing the other to live separately,” it said.
The Court held that a marriage cannot be considered “irretrievably broken” for granting divorce unless there is clear evidence that one spouse intentionally abandoned the other or refused to live with them.
It also emphasised that this question becomes even more crucial when a child is involved.
“Unless there is cogent evidence for willful desertion or refusal to cohabit and/or look after the other spouse, the finding of marriage having been broken irretrievably is likely to have devastating effects, especially on the children. The arrival of such a conclusion puts the Courts under an onerous duty to deeply analyse the entire evidence on record, consider the social circumstances and the background of the parties, and various other factors,” the order said.
The Court made these remarks while dealing with a case that began in 2010, when a man first filed for divorce alleging cruelty, but later withdrew that petition. In 2013, he filed a second petition, this time claiming that his wife had deserted him.
The trial court rejected the petition in 2018, finding no evidence of desertion. However, in 2019, the Uttarakhand High Court reversed that decision and granted the man a divorce. The wife then approached the Supreme Court against that order.
The Supreme Court observed that the High Court had granted divorce on the ground of cruelty without properly examining key issues central to the dispute.
The Supreme Court criticised the High Court for accepting only the husband’s version of events while ignoring the wife’s claim that she had been driven out of her matrimonial home and had been raising their child alone.
The Bench also noted that the High Court overlooked key legal questions central to the dispute — including whether the husband could file a second divorce petition on the same grounds after withdrawing the first one, and whether the wife had suffered cruelty by being denied access to her matrimonial home and not receiving maintenance for the child.
The Supreme Court further remarked that in matrimonial cases, courts carry a serious responsibility to closely evaluate all the evidence, consider the social and family circumstances of both parties, and take every relevant factor into account before reaching a conclusion.
Accordingly, the Supreme Court set aside the divorce decree and remanded the case to the High Court for fresh consideration.
