The Delhi High Court recently clarified that family courts cannot grant divorce on the ground of the ‘irretrievable breakdown of marriage’.
While dealing with the present case involving Hindu parties, the Court observed that the family court must act strictly in accordance with the provisions governing the grant of divorce under the Hindu Marriage Act.
The two-judge bench of Justices Sanjeev Sachdeva and Vikas Mahajan highlighted that an irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act while subsiding the judgment of a Family Court granting divorce on such a ground, among other grounds.
The High Court further explained that the power to grant divorce on the ground of irretrievable breakdown of marriage can be exercised only by the Supreme Court under Article 142 of the Constitution.
The bench also added, “Such a power is not vested in the High Courts leave alone the Family Courts.”
The Court was hearing an appeal filed by a woman against a family court’s 2018 decision allowing her husband’s plea on the grounds of cruelty and desertion.
The couple got married in 2002 and had a daughter from this marriage. Soon after the birth of the child, they started living separately.
The High Court noted that the family court had granted the divorce on the ground of denial of conjugal relationship, even though the allegations regarding this aspect were vague and without specifics.
It further observed that there was no complete denial of conjugal relationship between the couple as the husband had admitted that he was allowed to enjoy conjugal relations 30-35 times. The Court also said that the birth of their child negates the allegation of denial of conjugal rights.
On the aspect of whether there was a breakdown of marriage, the Court noted that the wife had consistently maintained that she wanted to live with the husband, but that he had repeatedly declined to live with her. So, there was no fault from her side, the High Court opined.
The Court said, “He is the one who is found to have deserted his wife and then taken the plea of desertion on her part. He cannot be permitted to walk out of the matrimonial alliance on the ground that the marriage has broken down.”
The Court also noted that the family court merely considered the fact that they had been living separately for 11 years and granted divorce on such a ground. However, the High Court opined out that such power is not conferred on the family court.
The Supreme Court while considering the exercise of its discretionary powers under Article 142 of the Constitution of India considers several factors, the High Court added. The longevity of the period of separation is only one of such factors, observed the Court.
“In the present case, the Family Court has erred in travelling beyond the scope of its powers to grant divorce,” the bench proceeded to conclude, while allowing the woman’s appeal against the grant of divorce.
Advocates Lohit Ganguly, Ajay Kumar, and Mohit Khatri appeared for the appellant, wife.
Advocates DK Pandey and Vikram Panwar appeared for the defendant, husband.
News Source: https://www.barandbench.com/news/delhi-high-court-family-courts-divorce-breakdown-marriage
