"We are of the opinion that the high court has committed an error of law by relying on the principle of irretrievable breakdown of marriage to dissolve the marriage between the parties in a contested divorce proceeding," the Supreme Court observed.
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RECENTLY, the Supreme Court observed that a high court cannot rely on the principle of irretrievable breakdown of marriage to dissolve the marriages between the parties in a contested divorce proceeding.
A division Bench comprising Justices Aniruddha Bose and Bela M. Trivdei passed an Order to this effect while quashing a Madras High Court Order dissolving the marriage as asked for by the husband.
The Bench asked the high court to decide the matter afresh.
In this case, a family court in Erode had granted judicial separation instead of divorce as asked by the husband.
While granting the judicial separation, the family court found "certain acts of the wife that emerged from evidence to come within the purview of cruelty".
Under Section 10 of the Hindu Marriage Act, 1955, once a decree for judicial separation has been passed, it is no longer obligatory for the petitioner to cohabit with the respondent.
Both the husband and the wife appealed before the high court against the Order of the family court.
The high court, by a common judgment passed on March 23, 2022, dismissed the appeal of the wife against the Order on judicial separation, and allowed the appeal filed by the husband to grant the divorce.
While allowing the appeal by the husband, the high court observed: "In the instant case, the parties are living separately for more than 12 years. The endeavour to bring reconciliation between the parties has failed; resultantly, the marriage is dead, both emotionally and practically.
"Continuance of the relationship for namesake is prolonging the agony, and affliction would be a cruelty to both the parties.
"Therefore, we are of the considered opinion that the marriage between the parties has broken down irretrievably and the parties could no longer live together as husband and wife."
Disapproving the high court's Order, the Supreme Court observed: "We are of the opinion that the high court has committed an error of law by relying on the principle of irretrievable breakdown of marriage to dissolve the marriage between the parties in a contested divorce proceeding."
The Bench also noted that the high court did not examine allegations of cruelty on the part of the wife, on which the family court had come to a specific conclusion.
"A decision on that count was necessary for proper adjudication of the appeals. Hence, the judgment of the high court, to the extent it decreed divorce by dissolving the marriage between the parties, shall stand set aside. We, however, remand the appeals to the high court for [a] fresh hearing," the Bench ordered.
Presently, the Hindu Marriage Act, 1955, the Special Marriage Act, 1954 and the Indian Christian Marriage Act, 1872 recognise only fault-based divorce.
As per the fault-based divorce theory, in order to get divorced, either of the parties to the marriage is required to prove fault on the part of the spouse, which includes factors such as adultery, cruelty, desertion, conversion and insanity.
Earlier this year, a five-judge Constitution Bench of the Supreme Court held that it could, in the exercise of its inherent power under Article 142 of the Constitution, dissolve a marriage that has irretrievably broken down.