Irretrievable Breakdown Of Marriage Not A Ground For Granting Divorce U/S 13 Of Hindu Marriage Act: Telangana High Court

“…the appellant contended that the appellant and the respondent are staying separately since last 17 years and their marriage is it retrievably breakdown, there is no possibility of living together. But the said ground of irretrievable breakdown of marriage is not a ground to seek divorce. Neither, the Family Court nor this Court can grant divorce on the said ground. The said aspect can be considered while coming to a conclusion with regard to alleged cruelty.”

The order was passed by Justice K. Lakshman and Justice P. Sree Sudha in a Family Court Appeal filed by an aggrieved husband, whose petition for divorce on the grounds of cruelty and desertion was dismissed by the trial Court.

Approaching the High Court, the appellant/husband contended that he and his wife had separated 17 years ago, only after one month of being happily married. He stated that even when they were living together, he was subjected to repeated cruelty at the hands of his wife, the respondent as she was extremely controlling, did not permit him to speak to his family members freely and even demanded to stay in a separate house.

He stated that she initiated domestic violence proceedings against him, using the influence of her sister who was a constable in a local police station. It was stated that the respondent had a son and had kept the said fact from the appellant and she had also filed a suit for partition for the appellant's property.

The appellant stated that the actions of the respondent amounted to cruelty and desertion.

The respondent/wife contended that she never hid the news of her pregnancy from her husband or his family. It was submitted that while she was 3 months pregnant, her mother-in-law tried to abort her pregnancy because the elder brother of the appellant already had a child. She also pointed to the documents, including the pregnancy reports and scans she had filed along with the domestic violence case to prove her contention.

Hearing both contentions, the Court ruled that cruelty can mean different things to different individuals and depends on various aspects. It said:

“The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, financial position, social status, customs, religious beliefs and value system.”

In the instant case, the Bench noted that apart from adamant behaviour over petty issues, the appellant had failed to prove cruelty.

Further, relying on Lachman Utamchand Kirpalani v. Meena @ Mota the bench reiterated that to prove desertion, two ingredients, i.e., factum of separation and intention to bring cohabitation permanently to an end need to be established. Additionally that:

“Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.”

In the present case, the bench noted that the parties had undergone court-appointed mediation, and decided to stay apart. Thus, it could not be said that the appellant was deserted by the respondent.

In conclusion, the Bench noted that although the parties have been in an irretrievably broken down marriage for the past 17 years until the ground as mentioned under section 13 of the Hindu Marriage Act was proved, divorce could not be granted. It was held:

“It is a reasoned order and well founded. The appellant failed to make out any case to interfere with the said order. Thus, the present appeal fails and the same is liable to be dismissed and is accordingly dismissed. There shall be no order as to costs.”

Case title: X v. X

FCA 196 of 2011

Counsel for the appellant: Senior Counsel J. Prabhakar, appearing on behalf of Kanumuri Kalyani

Counsel for respondent: G. Manoj Kumar appearing on behalf of P. Srinath.

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