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The Delhi High Court has held that irretrievable breakdown of marriage is not available for the family court to grant divorce under the Hindu Marriage Act.

A bench of Justices Sanjeev Sachdeva and Vikas Mahajan set aside a family court's judgement of September 18, 2018, saying granting divorce on the ground of cruelty and breakdown of marriage is not sustainable.

Relying upon the Supreme Court's Constitution bench judgement in case of 'Shilpa Sailesh Versus Varun Sreenivasan' (2023), the bench said, "the power to grant divorce on the ground of irretrievable breakdown of marriage is exercised by the Supreme Court under Article 142 of the Constitution of India to do complete justice to both the parties. Such a power is not vested in the High Courts leave alone the Family Courts."

Acting on a plea by the husband, the family court concluded there was denial of conjugal relations, that parties had been living separately for more than 11 years. It had further said that the marriage had broken down beyond repair and thus held he had successfully established cruelty and granted a decree of divorce against the wife. 

Upon an appeal, the HC noted the allegations of denial of conjugal rights were vague and bald and it was the husband and her father-in-law who refused to take back the appellant and her daughter.

"The fact that a girl child has been born to the parties clearly shows that the allegation that Respondent  (husband) had been denied conjugal relations is incorrect," the bench said.

Referring to the Supreme Court decision in 'N G Dastane (Dr) v. S Dastane', the bench said it has been held that conception of a child cannot be termed to be a single act of conjugal relationship. It would in fact amount to condoning the earlier actions of denial of conjugal relationship, even if one were to assume that such a relationship was denied by her. 

Coming to the theory of breakdown of marriage, the bench said, first of all that is not a ground for grant of divorce under the Act. Secondly, appellant is clearly not at fault. Thirdly, the husband should not be allowed to take advantage of his own wrong. 

"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 talk out of matrimonial alliance on the ground that the marriage has broken down," the bench said.

The court held that in the present case, the Family Court has erred in travelling beyond the scope of its powers to grant divorce. 

"Even the Supreme Court while considering exercise of discretionary powers under Article 142 of the Constitution takes into account several factors and longevity of period is only one of them," it pointed out.

Case Title: Deepti Vs Anil Kumar