IN THE HONOURABLE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

APPEAL (CIVIL) 4 OF 2019

IN THE MATTER OF

MANISH
…………………APPELLANT

V.

RANEE
……………………REPONDENT

WRITTEN SUBMISSIONS ON THE BEHALF OF THE APPELLANT

COUNSELS FOR APPELLANT

NAME: MOHSIN
CLASS ROLL No.: 173226
EXAM ROLL No. 170389
SECTION: F
 TABLE OF CONTENTS

1. Table of Contents……………………………………………………………………...2

2. Index of Authorities…………………………………………………………………...3

3. Statement of Jurisdiction…………………………………………………….………..3

4. Statement of Facts……………………………………………………………………..4

5. Statement of Issues…………………………………………………………………….5

6. Summary of Arguments………………………………………………………………6

7. Arguments Advanced……………………………………………………...………..…7

I. Whether Modern Divorce Law in India, applicable to the instant case, is

restricted to Fault Theory of Divorce alone or encompasses Breakdown
Theory as well?

II. Whether there exists an undeniable case of irretrievable breakdown of

marriage

between the parties.?

8. Prayer…………………………………………………………………………………16
 INDEX OF AUTHORITIES

CASES:

1. Ms. Jorden Diengdeh vs. S.S. Chopra (AIR 1985 SC 935)

2. Naveen Kohli vs. Neelu Kohli (AIR 2006 SC 1675)
3. Kanchan Devi v. Pramod Kumar Mittal (AIR 1996 SC 3192); (1996) 8 SCC 90
4. Vinita Saxena v. Pankaj Pandit (JT 2006 (3) SC 587)
5. Anil Kumar Jain v. Maya Jain (Civil Appeal No. 5952 of 2009) [Arising out of
Special Leave Petition (C) No. 14361 of 2007]
6. Sandhya Rani vs. Kalyanram Narayanan (1994) Supp. 2 SCC 588
7. Chandrakala Menon vs. Vipin Menon (1993) 2 SCC 6
8. V. Bhagat v. D. Bhagat (Mrs.) (1994) 1 SCC 337
9. Durga P.Tripathy v. Arundhati Tripathy, (2005) 7 SCC 353
10. Lalitha v. Manickswamy, I (2001) DMC 679 SC
11. Shobha Rani v. Madhukar Reddi (1988) 1 SCC 105
12. A. Jayachandra v. Aneel Kaur reported in (2005) 2 SCC 22
13. Rishikesh Sharma v. Saroj Sharma reported in 2006 (12) Scale 282
14. Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511
15. Bipinchandra Jaisinghbhai Shah v. Prabhavati (AIR 1957 SC 176)
16. Savitri Pandey v. Prem Chandra Pandey, 2002 AIR SCW 182 : (2002 (2) GLR
1369 (SC))
STATUTES

1. Hindu Marriage Act, 1955

2. Code of Civil Procedure, 1908

BOOKS, TREATISES AND DIGESTS

3. Dr. Paras Dewan, Modern Hindu Law, 23rd Edition, Allahabad Law Agency

4. Mulla’s Hindu Law Paperback, 2018 Edition

5. Law Commission 71st Report, April 1978

6. Law Commission 217th Report, March, 2009

DYNAMIC LINKS
https://www.manupatra.com/
http://www.indiankanoon.com
http://www.scconline.com
 STATEMENT OF JURISDICTION

The Hon`ble Supreme Court of India has the appellate jurisdiction to hear the present civil
appeal by virtue of Articles 132 and 134A of the Constitution of India, read with Section
109 of the Code of Civil Procedure, 1908.

Article 132 of the Constitution of India

132. (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order
of a High Court in the territory of India, whether in a civil, criminal or other proceeding,
[if the High Court certifies under article 134A] that the case involves a substantial
question of law as to the interpretation of this Constitution.
(3) Where such a certificate is given, any party in the case may appeal to the Supreme Court
on the ground that any such question as aforesaid has been wrongly decided.

Article 134A of the Constitution of India

134A. Every High Court, passing or making a judgment, decree, final order, or sentence,
referred to in clause (1) of article 132 or clause (1) of article 133, or clause (1) of article
134,—
(a) may, if it deems fit so to do, on its own motion; and

(b) shall, if an oral application is made, by or on behalf of the party aggrieved,

immediately after the passing or making of such judgment, decree, final order
or sentence, determine, as soon as may be after such passing or making, the
question whether a certificate of the nature referred to in clause (1) of article
132, or clause (1) of article 133 or, as the case may be, sub-clause (c) of clause
(1) of article 134, may be given in respect of that case.

Section 109 of the Code of Civil Procedure, 1908: When appeals lie to the Supreme
Court.—Subject to the provisions in Chapter IV of Part V of the Constitution and such rules
as may, from time to time, be made by the Supreme Court regarding appeals from the Courts
of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme
Court from any judgment, decree or final order in a civil proceeding of a High Court, if the
High Court certifies—

(i) the case involves a substantial question of law of general importance; and

(ii) that in the opinion of the High Court the said question needs to be decided
by the Supreme Court.
 STATEMENT OF FACT

1. Ranee got married to Manish on January 16, 2000 according to Hindu rites and
ceremonies.
2. From the beginning of the marriage itself, there were temperamental differences
and clashes between the parties.
3. Ranee stayed for a mere five months in her matrimonial home and left the
matrimonial home at her will in June 2000 in favour of her parental home.
4. Ranee deserted her matrimonial home when she was three months pregnant. She
went to her parental home and refused to have any contact with Manish and her in-
laws thereafter till date.
5. Ranee gave birth to their son while living in her own parental home. Manish visited
her in the hospital at the time of birth of their son. Ranee rebuffed Manish and
refused to let him see or meet the child and did not accept the sweets and presents
that he took for them both.
6. After six years of desertion of matrimonial home by Ranee, Manish filed a divorce
case in the District Court in the year 2006 seeking divorce on the grounds of
desertion, cruelty and irretrievable breakdown of marriage. The District held in
favour of Ranee and declined the plea of irretrievable breakdown of marriage as
being absent from the statute.
7. Manish appealed the District Court’s order to the Hon’ble High Court pleading the
ground of irretrievable breakdown of marriage and citing the discretion exercised
by Court in the recent years basis relations between husband and wife having
reached a breaking point without a possibility for reconciliation. The High Court
upheld the District Court’s order on the reason that the law relating to the grant of
divorce on the ground of irretrievable breakdown of marriage was not settled.
8. It is now over ten years since the desertion.

Hence the instant civil appeal.

 STATEMENT OF ISSUES

I. Whether Modern Divorce Law in India, applicable to the instant case, is restricted to
Fault Theory of Divorce alone or encompasses Breakdown Theory as well?

II. Whether there exists an undeniable case of “irretrievable breakdown of marriage”

between the two parties in the instant case?
 SUMMARY OF ARGUMENTS

I. Whether Modern Divorce Law in India, applicable to the instant case, is

restricted to Fault Theory of Divorce alone or encompasses Breakdown Theory
as well?

Modern divorce law in India has expanded and evolved over the decades based on
various amendments made to the statute, Hindu Marriage Act 1955, as well as by
virtue of precedent-setting judicial pronouncements by the Hon’ble Supreme Court
of India. Modern divorce law in India today encompasses the following theories of
divorce: (1) Fault Theory (2) No Fault Theory (3) Breakdown Theory. Two
successive reports of the Law Commission of India expressly recommend
incorporation of irretrievable breakdown of marriage into Indian divorce law. In the
instant case, the jurisprudence of modern divorce law applies as laid down by the
Hon’ble Supreme Court of India, which both implicitly and now explicitly
encompasses the Breakdown Theory of divorce.

II. Whether in the instant case there exists an undeniable and irretrievable
breakdown of the marriage between the two parties?

Yes, in the present case the Appellant and the Respondent have lived apart
postdesertion for a period of over ten years with no cohabitation, no marital
intercourse, no contact. The relationship between the Appellant and the Respondent
is an insult to the term and institution of marriage. In the instant case, no ingredients
of marriage remain or sustain and the relationship has been reduced to an empty
shell for over a decade. In the light of these admitted facts, this is an undeniable case
for grant of divorce based on irretrievable breakdown of the marriage.
 ARGUMENTS ADVANCED

I. Whether Modern Divorce Law in India, applicable to the instant case, is restricted
to Fault Theory of Divorce alone or encompasses Breakdown Theory as well?

1. The Hindu Marriage Act, 1955, originally, based divorce on the fault theory and
enshrined nine fault grounds in section 13(1) on which husband/wife could sue for divorce,
and two fault grounds in section 13(2) on which wife alone could seek divorce. By a 1964
amendment, recasting last two clauses of section 13(1), viz., clauses (vii) and (ix), two
grounds of breakdown of marriage were also recognized. These clauses were renumbered
as clauses (i) and (ii) of section 13(1A). These clauses have been modified by the Marriage
Laws (Amendment) Act, 1976. The Marriage Laws (Amendment) Act, 1976, inserted two
additional fault grounds of divorce for wife and a new Section 13-B under which divorce
by mutual consent is recognized. Thus in modern Hindu Law the position is that all three
theories of divorce are recognized and divorce can be obtained on the basis of any one of
them.

2. The Hindu Marriage Act, 1955 was enacted to amend and codify the law relating to
marriage among Hindus. The provisions of the said Act have proved to be inadequate to
deal with the issue in circumstances where there has been irretrievable breakdown of
marriage and therefore a need was felt for certain amendments therein.

3. In view of demands from various quarters for making irretrievable breakdown of

marriage a ground for divorce under the Hindu Marriage Act, 1955, the Central Government
referred the matter to the Law Commission of India. The Law Commission in its 71st Report
titled “The Hindu Marriage Act, 1955 – Irretrievable Breakdown of Marriage as a Ground
of Divorce” in 1978 examined the issue and recommended amendments to the Hindu
Marriage Act, 1955 to make irretrievable breakdown of marriage a new ground for granting
a decree of divorce as quoted below:
“We need not stand on an old divorce law which demands that men &
women must be found innocent or guilty. It is desirable to get rid of the
public washing of dirty linen which takes place in long drawn out cruelty
 cases or in cases based on fault. If divorce is allowed to go through on the
ground of marriage breakdown, such an unhappy spectacle will be avoided.”

“The theory that one cannot take advantage of one’s own wrong has not been
adhered to in the Hindu Marriage Act in the past. We may. in this context,
refer to clause (ii) of subsection (1A) of section 13 of the act. According to
that clause, either party to marriage, whether solemnized before or after the
commencement of this act, may present a petition for the dissolution of the
marriage by a decree of divorce on the ground that there has been no
restitution of conjugal rights as between the parties to the marriage for a
period of one year or afterwards after the passing of decree for the restitution
of conjugal rights in proceedings to which they were parties. this provision
clearly contemplates that even the party which has been in the wrong so far
as it has failed to comply with a decree for restitution of conjugal rights can
also apply for a decree of divorce on the ground that there has been no
restitution of conjugal rights as between the parties to marriage for a period
of one year or upwards after the passing of decree for restitution of conjugal
rights in a proceeding to which they were parties. such a party, though at
fault, would thus be taken advantage of its own fault. it cannot therefore be
said that under the provisions of the Hindu Marriage Act as they stand at
present no person can be allowed to take advantage of his own wrong.”
“On a consideration of the merits and demerits of the theory of irretrievable
breakdown of marriage we have come to the conclusion that such a
breakdown of marriage should be a good ground for the grant of a decree of
divorce under the Hindu Marriage Act 1955 if proved by the parties living
apart for the specific period and subject to the safeguards which we are
recommending later in this report.”

4. Subsequently, the Hon'ble Supreme Court in Ms. Jorden Diengdeh vs. S.S. Chopra
(AIR 1985 SC 935) had pointed out the necessity to introduce irretrievable breakdown of
marriage and mutual consent as grounds for grant of divorce in all cases. More recently, in
the landmark judgement of Naveen Kohli vs. Neelu Kohli (AIR 2006 SC 1675), the Hon'ble
Supreme Court recommended to the Union of India to seriously consider bringing an
amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of
marriage as a ground for divorce.

5. The 71st Report of the Law Commission also traces the evolution of irretrievable
breakdown of marriage as a valid ground for divorce in a comparative study across a number
of countries around the world. The report cites the Matrimonial Causes Act, 1973 legislated
by the British Parliament and further the Report states:
“Irretrievable breakdown of marriage is now considered in the laws of a
number of countries. a good ground of dissolving the marriage by granting
a decree of divorce.”

6. Similarly, the 217th Report Law Commission of India also cites examples of how
modern divorce law has evolved in other common law countries around the world:
“92. In the Report, it is mentioned that the germ of the breakdown theory, so
far as Commonwealth countries are concerned, may be found in the
legislative and judicial developments during a much earlier period. The
(New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920,
included for the first time the provision that a separation agreement for three
years or more was a ground for making a petition to the court for divorce
and the court was given a discretion (without guidelines) whether to grant
the divorce or not.
The discretion conferred by this statute was exercised in a case Lodder v.
Lodder (1921 New Zealand Law Reports 786). Salmond J., in a passage
which has now become classic, enunciated the breakdown principle in these
words: When the matrimonial relation has for that period ceased to exist de
facto, it should, unless there are special reasons to the contrary, cease to exist
de jure also.”

7. Further, the 18th Law Commission of India in 2009, reiterated its recommendations,
suo motu in its 217th Report titled “Irretrievable Breakdown of Marriage –Another Ground
for Divorce”. The Law Commission of India, once again, recommended that 'Irretrievable
Breakdown of Marriage' should be incorporated as another ground for grant of a decree of
divorce under the aforesaid Acts. The said recommendation is reproduced below:
“3.1 It is, therefore, suggested that immediate action be taken to introduce
an amendment in the Hindu Marriage Act, 1955 and the Special Marriage
Act, 1954 for inclusion of ‘irretrievable breakdown of marriage’ as another
ground for grant of divorce.
3.2 The amendment may also provide that the court before granting a decree
for divorce on the ground that the marriage has irretrievably broken down
should also examine whether adequate financial arrangements have been
made for the parties and children.”

8. In addition, in a catena of cases cited below, the Hon’ble Supreme Court of India
has made judicial pronouncements recognizing break down theory of divorce and explicitly
exercising its power under Article 142 of the Constitution to grant divorce on the specific
ground of irretrievable breakdown of marriage and this is today settled law in India.

9. In the case of Naveen Kohli vs. Neelu Kohli (AIR 2006 SC 1675), the Hon’ble S.C
while granting divorce on the grounds of irretrievable breakdown of marriage, held that:
“We have been principally impressed by the consideration that once the
marriage has broken down beyond repair, it would be unrealistic for the law
not to take notice of that fact, and it would be harmful to society and injurious
to the interests of the parties.
Public interest demands not only that the married status should, as far as
possible, as long as possible, and whenever possible, be maintained, but
where a marriage has been wrecked beyond the hope of salvage, public
interest lies in the recognition of that fact.”

10. In Kanchan Devi v. Pramod Kumar Mittal (AIR 1996 SC 3192), the Hon’ble
Supreme Court held:
“The marriage between the appellant and the respondent has irretrievably
broken down and that there was no possibility of reconciliation, we in
exercise of our powers under Art. 142 of the Constitution of India hereby
 direct that the marriage between the appellant and the respondent shall stand
dissolved by a decree of divorce.”

11. It is, therefore, humbly submitted that based on various judicial pronouncements,
Modern Hindu law relating to divorce does undeniably include “irretrievable breakdown of
marriage” as a legitimate and legal ground to seek divorce. It is further submitted that in the
instant case, the jurisprudence of modern divorce law applies as laid down by the Hon’ble
Supreme Court of India, which both implicitly and now explicitly encompasses the
Breakdown Theory of divorce.
II. Whether there exists an undeniable case of “irretrievable breakdown of
marriage” between the two parties?

1. Irretrievable breakdown of marriage comes under the breakdown theory where the
marriage is supposed to have reached a point wherein there is a complete breakdown of the
institution with no scope for retrieval of that previously existing bond. Even though
irretrievable breakdown of marriage has not been explicitly stated under the Hindu Marriage
Act, 1955 as a ground for divorce, there have been many apex court judgments, which are
settled law.

2. In Vinita Saxena v. Pankaj Pandit (JT 2006 (3) SC 587), the marriage between Vinita
Saxena and her husband Pankaj Pandit was dissolved by an order of the Supreme Court.
The marriage between the parties lasted only for five months. Both of them were living
separately for over 13 years. Marriage also was not consummated. Wife filed a petition for
the dissolution of marriage on the ground of physical and mental cruelty and insanity on the
part of the husband. The Court held as follows:
“36. As to what constitutes the required mental cruelty for purposes of the
said provision, will not depend upon the numerical count of such incidents
or only on the continuous course of such conduct but really go by the
intensity, gravity and stigmatic impact of it when meted out even once and
the deleterious effect of it on the mental attitude, necessary for maintaining
a conducive matrimonial home.”
Allowing the appeal of the wife, a division bench of the Supreme Court speaking through
Dr. Justice AR. Lakshmanan held that the orders of the courts below had resulted in grave
miscarriage of justice to the wife who had been constrained into living with a dead
relationship for over 13 years and that the fact of the situation clearly showed that the
husband and wife can never ever stay as husband and wife and the wife’s stay with the
respondent husband would be injurious to her health. Accordingly, a decree of divorce was
granted in favour of the wife against the husband.

3. In Anil Kumar Jain v. Maya Jain (Civil Appeal No. 5952 of 2009) [Arising out of
Special Leave Petition (C) No. 14361 of 2007] the Court held:
“17. In the ultimate analysis the aforesaid discussion throws up two
propositions. The first proposition is that although irretrievable break-down
of marriage is not one of the grounds indicated whether under Sections 13 or
13- B of the Hindu Marriage Act, 1955, for grant of divorce, the said doctrine
can be applied to a proceeding under either of the said two provisions only
where the proceedings are before the Supreme Court. In exercise of its
extraordinary powers under Article 142 of the Constitution the Supreme
Court can grant relief to the parties without even waiting for the statutory
period of six months stipulated in Section 13-B of the aforesaid Act. This
doctrine of irretrievable break-down of marriage is not available even to the
High Courts which do not have powers similar to those exercised by the
Supreme Court under Article 142 of the Constitution. Neither the civil courts
nor even the High Courts can, therefore, pass orders before the periods
prescribed under the relevant provisions of the Act or on grounds not
provided for in Section 13 and 13B of the Hindu Marriage Act, 1955.

18. The second proposition is that although the Supreme Court can, in
exercise of its extraordinary powers under Article 142 of the Constitution,
convert a proceeding under Section 13 of the Hindu Marriage Act, 1955, into
one under Section 13-B and pass a decree for mutual divorce, without
waiting for the statutory period of six months, none of the other Courts can
exercise such powers. The other Courts are not competent to pass a decree
for mutual divorce if one of the consenting parties withdraws his/her consent
before the decree is passed. Under the existing laws, the consent given by
the parties at the time of filing of the joint petition for divorce by mutual
consent has to subsist till the second stage when the petition comes up for
orders and a decree for divorce is finally passed and it is only the Supreme
Court, which, in exercise of its extraordinary powers under Article 142 of
the Constitution, can pass orders to do complete justice to the parties.

20. In the instant case, the respondent wife has made it very clear that she
will not live with the petitioner, but, on the other hand, she is also not
agreeable to a mutual divorce. In ordinary circumstances, the petitioner's
remedy would lie in filing a separate petition before the Family Court under
 Section 13 of the Hindu Marriage Act, 1955, on the grounds available, but
in the present case there are certain admitted facts which attract the
provisions of Section 13-B thereof. One of the grounds available under
Section 13-B is that the couple have been living separately for one year or
more and that they have not been able to live together, which is, in fact, the
case as far as the parties to these proceedings are concerned. In this case, the
parties are living separately for more than seven years. As part of the
agreement between the parties the appellant had transferred valuable
property rights in favour of the respondent and it was after registration of
such transfer of property that she withdrew her consent for divorce. She still
continues to enjoy the property and insists on living separately from the
husband.”

4. In the landmark case of Naveen Kohli v. Neelu Kohli (AIR 2006 SC 1675), the Court
notably referred to the said judgements:
• In Sandhya Rani vs. Kalyanram Narayanan reported in (1994) Supp. 2 SCC 588,
this Court reiterated and took the view that since the parties are living separately for
the last more than three years, we have no doubt in our mind that the marriage
between the parties has irretrievably broken down. There is no chance whatsoever
of their coming together. Therefore, the Court granted the decree of divorce.
• In the case of Chandrakala Menon vs. Vipin Menon reported in (1993) 2 SCC 6, the
parties had been living separately for so many years. This Court came to the
conclusion that there is no scope of settlement between them because, according to
the observation of this Court, the marriage has irretrievably broken down and there
is no chance of their coming together. This Court granted decree of divorce.
• In the case of Kanchan Devi vs. Promod Kumar Mittal reported in (1996) 8 SCC 90,
the parties were living separately for more than 10 years and the Court came to the
conclusion that the marriage between the parties had to be irretrievably broken down
and there was no possibility of reconciliation and therefore the Court directed that
the marriage between the parties stands dissolved by a decree of divorce.
• In V. Bhagat v. D. Bhagat (Mrs.) (1994) 1 SCC 337, this Court while allowing the
marriage to dissolve on ground of mental cruelty and in view of the irretrievable
 breakdown of marriage and the peculiar circumstances of the case, held that the
allegations of adultery against the wife were not proved thereby vindicating her
honour and character. This Court while exploring the other alternative observed that
the divorce petition has been pending for more than 8 years and a good part of the
lives of both the parties has been consumed in this litigation and yet, the end is not
in sight and that the allegations made against each other in the petition and the
counter by the parties will go to show that living together is out of question and
rapprochement is not in the realm of possibility. This Court also observed in the
concluding part of the judgment that: "Before parting with this case, we think it
necessary to append a clarification. Merely because there are allegations and counter
allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the
divorce proceedings by itself a ground. There must be really some extra- ordinary
features to warrant grant of divorce on the basis of pleading (and other admitted
material) without a full trial. Irretrievable breakdown of the marriage is not a ground
by itself. But while scrutinising the evidence on record to determine whether the
ground(s) alleged is/are made out and in determining the relief to be granted, the
said circumstance can certainly be borne in mind. The unusual step as the one taken
by us herein can be resorted to only to clear up an insoluble mess, when the Court
finds it in the interest of both parties."
• In Durga P.Tripathy v. Arundhati Tripathy, (2005) 7 SCC 353, this Court further
observed that Marriages are made in heaven. Both parties have crossed the point of
no return. A workable solution is certainly not possible. Parties cannot at this stage
reconcile themselves and live together forgetting their past as a bad dream. We,
therefore, have no other option except to allow the appeal and set aside the judgment
of the High Court and affirming the order of the Family Court granting decree for
divorce.
• In Lalitha v. Manickswamy, I (2001) DMC 679 SC that they had cautioned in that
case that unusual step of granting the divorce was being taken only to clear up the
insoluble mess when the Court finds it in the interests of both the parties.

5. In Naveen Kohli v. Neelu Kohli (supra) the Hon’ble Supreme Court held:

“Once the parties have separated and the separation has continued for a
sufficient length of time and one of them has presented a petition for divorce,
 it can well be presumed that the marriage has broken down. The court, no
doubt, should seriously make an endeavor to reconcile the parties; yet, if it
is found that the breakdown is irreparable, then divorce should not be
withheld. The consequences of preservation in law of the unworkable
marriage which has long ceased to be effective are bound to be a source of
greater misery for the parties.
A law of divorce based mainly on fault is inadequate to deal with a broken
marriage. Under the fault theory, guilt has to be proved; divorce courts are
presented concrete instances of human behavior as bring the institution of
marriage into disrepute.
We have been principally impressed by the consideration that once the
marriage has broken down beyond repair, it would be unrealistic for the law
not to take notice of that fact, and it would be harmful to society and injurious
to the interests of the parties. Where there has been a long period of
continuous separation, it may fairly be surmised that the matrimonial bond
is beyond repair. The marriage becomes a fiction, though supported by a
legal tie. By refusing to sever that tie the law in such cases do not serve the
sanctity of marriage; on the contrary, it shows scant regard for the feelings
and emotions of the parties.
Public interest demands not only that the married status should, as far as
possible, as long as possible, and whenever possible, be maintained, but
where a marriage has been wrecked beyond the hope of salvage, public
interest lies in the recognition of that fact.
Since there is no acceptable way in which a spouse can be compelled to
resume life with the consort, nothing is gained by trying to keep the parties
tied for ever to a marriage that in fact has ceased to exist.”

Further in Naveen Kohli v. Neelu Kohli (supra) the Hon’ble Supreme Court went so far as
to even recommend:
“Before we part with this case, on the consideration of the totality of facts,
this Court would like to recommend the Union of India to seriously consider
bringing an amendment in the Hindu Marriage Act, 1955 to incorporate
irretrievable breakdown of marriage as a ground for the grant
 of divorce. A copy of this judgment be sent to the Secretary, Ministry of Law &
Justice, Department of Legal Affairs, Government of India for taking
appropriate steps.”

6. In the instant case, it is an admitted fact that both the parties have been living separately
for the last 10 years with no cohabitation or consummation or fulfillment of any
matrimonial/spousal duties. It is an admitted fact that the Respondent Ranee herself left her
matrimonial house. It is an admitted fact that even when the Appellant tried to reconcile when
he visited the hospital at the time of birth of their son, the Respondent refused to let him see
the child and did not accept the sweets and presents he took. The Respondent now lives at her
parental home with the son born out of wedlock. Not letting the father have a glimpse of his
newborn itself amounts to cruelty/mental trauma being caused by the Respondent. The
Petitioner father is forced to live apart from his son because of the absurd whims of the
Respondent. The appellant is not allowed to maintain even a normal father-son relationship,
which is cruel on the Respondent’s part. After the effort made by the Appellant at the time of
birth of their son to reconcile, no effort has been made by the Respondent which sets out the
Respondent’s intention of not wanting to stay in this matrimonial tie which is now a
longstanding burden to both the parties. The elements of a matrimonial relationship are clearly
absent and, hence, what is left of this marriage is not a holy matrimony but an empty shell filled
with bitterness and vengeance devoid of all the essential ingredients of a healthy marriage. The
Appellant while filing a divorce petition in the trial court expressed his intention to peacefully
and respectfully part ways with the Respondent. The actions of and averments driven by
vengeance made by the Respondent clearly point out her intention to cause pain and suffering
to the Appellant.
There lies no possibility of reconciliation 10 yearlong separation and legal battle.

7. Relying on the judgements stated above, there is no use in keeping such a marriage
intact. Allowing this divorce decree will be in the best interest of both the parties, which are
held together today not by the matrimonial tie but entangled with each other because of law.
Granting the divorce decree to the parties in the present case in exercise of its power under Art.
142 of the Constitution of India, the Court will be doing complete justice to the parties between
whom marriage ties have completely broken down and there is no possibility whatsoever of
the spouses coming together again.

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 PRAYER

In the light of the issues raised, arguments advanced, authorities cited and the pleadings made,
it is most humbly prayed that, the Hon’ble Court may be pleased to:

1. Grant a decree of divorce to the parties on the ground of irretrievable breakdown of marriage
under Art. 142 of the Constitution; or

2. Grant visitation rights to the Appellant qua his minor son;

3. Decide maintenance payable by the Appellant to the Respondent;

and/or to pass any other order, direction or relief as it may deem fit in the interest of justice,
equity and good conscience.

Respectfully Submitted

Counsel for Appellant

Mohsin

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