rretrievable breakdown of marriage, only SC

can grant divor

By : Nirav Pankaj Shah on 04 September 2009 Print this  

No court in the country except the Supreme Court can grant divorce on the ground of
irretrievable breakdown of matrimonial relationship.

‘This doctrine of irretrievable breakdown of marriage is not available even to the High Courts
which do not have powers similar to those exercised by the Supreme Court under Art 142 of the
Constitution,’ A bench comprising Mr Justice Altamas Kabir and Mr Justice Cyriac Joseph,
allowing the appeal of a husband, noted.

‘Neither the Civil Court nor even the High Court can, therefore, pass orders before the period
prescribed under the relevant provisions of the Act or on grounds not provided for in Sec 13 and
13 B of the Hindu Marriage Act 1955,’ the court said in its 23-page judgment.

Mr Justice Kabir, writing the judgment for the bench, also noted, ‘This court has invoked its
powers under Article 142 of the Constitution in order to do complete justice to the parties when
faced with the situation where the marriage ties has completely broken down and there was no
possibility whatsoever of the spouses coming together again.

‘In such a situation, this court felt that it would be a travesty of justice to continue with the
marriage ties.

‘It may, however, be indicated that in some of the High Courts, which do not possess the powers
vested in the Supreme Court under Art 142 of the Constitution, this question had arisen and it
was held in most of the cases that despite the fact that marriage had broken down irretrievable,
the same was not a ground for granting a decree of divorce either under Sec 13 or 13 B of the
Hindu Marriage Act.’ The apex court also noted, ‘Facing its decision on the doctrine of
irretrievable breakdown of marriage, the honorable judges were of the view that no useful
purpose would be served in prolonging the agony of the parties to a marriage which had broken
down irretrievably and the curtain had to be run down at some stage.

‘The court has to take a total and broad view of the ground realities of the situation while dealing
with the adjustment of human relationships,’ it added.

Anil Kumar Jain, a native of Chindwara in Madhya Pradesh, was married to Maya Jain on June
22, 1985. A petition for divorce, by mutual consent, was filed by both the parties jointly. The
wife, however, withdrew her consent for divorce. The trial court dismissed the petition. 

Madhya Pradesh High court also dismissed the appeal of the husband. 

The apex court, while granting divorce and setting aside the orders and judgments of the other
courts below noted that courts can grant divorce even if one of the spouses have withdrawn the
consent for divorce but no court can grant divorce by mutual consent except the Supreme Court
before the expiry of the stipulated period of six months from the date of filing of the petition and
the consent must subsist till the next date of hearing.