High Time That Irretrievable Breakdown Of Marriage Is Recognized As Grounds For Divorce Under Indian Law: Calcutta High Court

The Calcutta High Court has observed that it is high time that irretrievable breakdown of marriage is recognised as a ground for divorce under Indian law, by reading it into the grounds of cruelty or desertion, like it is in the UK.

A division bench of Justices Sabyasachi Bhattacharya and Uday Kumar held:

It transpires from the consistent conduct and lack of interest of the wife that the marriage between the parties has irretrievably broken down. Although irretrievable breakdown is per se not a ground for divorce as yet in Indian Law, the jurisprudence in certain other countries such as the United Kingdom incorporate the component of irretrievable breakdown as an aspect of cruelty, affording a ground of divorce in such cases.

Keeping in view the evolving needs of society and seen from a pragmatic perspective, probably it is high time that components of irretrievable breakdown of marriage should be read into the grounds of desertion and cruelty in our law as well, to ensure that the parties are not forcibly kept bound to dead marriages and bygone promises which have spent their shelf-lives long ago, the Court added.

The Court was considering the case of the plaintiff/husband, who in a divorce suit has preferred the present appeal against the ex parte dismissal of his suit. The suit was filed on the ground of cruelty and desertion.

The respondent-wife, despite service of summons, did not appear in the suit, nor was she represented at any stage of the present appeal, although notice was duly served.

Counsel appearing for the appellant argued that the appellant did not get an opportunity of advancing arguments in connection with the suit. On the very date when the examination of the two witnesses of the plaintiff/appellant was concluded, the Trial Judge reserved judgment and passed the same later on during the same day.

Court noted that although the P.W.1 and P.W.2 corroborated each other's evidence, it cannot be said that the plaint case was substantiated since several vital allegations made in the plaint were not established by cogent evidence.

It also noted that there were gaps even in the evidence given by the mother since, in her examination-in-chief, she described her address to be in Paschim Bardhaman. However, as per the plaint allegation and the evidence of both the plaintiff's witnesses, all the relevant events happened during the stay of the parties at Tezpur in Assam.

It thus held that there could not be any observations on merit that cruelty had been established.

However, it held that given the conduct of the parties, it was clear that even during the hearing in the trial court, although it wa recorded in the judgment that the advocate for the plaintiff/appellant was heard, there was no reflection in the judgment of the arguments advanced on behalf of the plaintiff.

Court held that the above circumstances clearly indicate that substantial opportunity was not afforded to the plaintiff to place his case before the court, which violated the principle of natural justice since the plaintiff was denied proper opportunity to present his case on merits.

Court also noted that it cannot be overlooked that the respondent-wife has been absent throughout the hearing of the suit and the pendency of the appeal before this Court. Such consistent and deliberate abstinence of the respondent-wife despite being served with summons of the suit and notice of the appeal, goes on to indicate utter absence of animus revertandi on the part of the respondent-wife.

Thus, it held that the trial Judge ought to have considered the ground of desertion on the part of the wife upon adverting to the circumstances of the present case.

Accordingly it was held that "The consistent abstinence of the respondent-wife from the company of the appellant-husband without any explanation furnishes the plaintiffhusband with a case at least of desertion, if not cruelty by itself, despite irretrievable breakdown not being a legally recognized ground of divorce under the Indian law."

Thus, the court remanded the matter back to the trial court by giving an opportunity for the husband to furnish further evidence, oral or documentary, to substantiate his case and to amend the plaint to incorporate the fact of consistent absence of the respondent-wife without explanation from the company of the plaintiff-husband, which might furnish a good ground of desertion, if not cruelty.

Case: Suman Talukder Vs. Namita Paul Talukder

Case No: F.A. No. 173 of 2022

Citation: 2024 LiveLaw (Cal) 254

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