Family Courts Not Empowered To Grant Divorce On 'Irretrievable Breakdown Of Marriage', Must Restrict To Statutory Provisions: Delhi High Court

The Delhi High Court has ruled that irretrievable breakdown of marriage is not a ground for seeking divorce and that Family Courts must strictly restrict their considerations to the statutory provisions like those under the Hindu Marriage Act, 1955.

While discussing the theory of breakdown of marriage, a division bench of Justice Sanjeev Sachdeva and Justice Vikas Mahajan said that irretrievable breakdown of marriage is not a ground for grant of divorce under the enactment.

The court referred to the latest Supreme Court ruling in Shilpa Sailesh v. Varun Sreenivasan and said that the power to grant divorce on the ground of irretrievable breakdown of marriage is exercised by the Apex Court under Article 142 of the Constitution to do complete justice to both the parties.

“Such a power is not vested in the High Courts leave alone the Family Courts,” the bench said.

It added, “Family Courts have to restrict their considerations to the parameters of the provision of grant of divorce strictly in accordance with the Act. Irretrievable breakdown of marriage is not a ground in the Act.”

The court made the observations while setting aside a family court order allowing the husband’s petition seeking divorce on the ground of cruelty and desertion. The family court had also dismissed the wife’s counter claim seeking restitution of conjugal rights.

The Family Court, after holding that there was denial of conjugal relations, noticed that the parties were living separately for more than 11 years and held that the marriage had broken down beyond repair.

Setting aside the impugned order, the bench said that the Family Court held that cruelty as alleged by the husband was not proved by him, however, divorce was granted on the ground of denial of conjugal relationship.

“Said ground is clearly not available to the Respondent and the Family Court has erred in returning a finding that there is denial of conjugal relationship by the Appellant. The allegations of the Respondent of denial of conjugal relationship are vague and without any specifics. He has alleged that he was allowed by the Appellant only 30-35 times (approximately) to enjoy conjugal relations since their marriage. This clearly shows that there was never any complete denial,” the High Court said.

Furthermore, the bench added that the Family Court had merely considered the fact that the parties lived separately for 11 years and granted divorce on the ground of breakdown of marriage. It said that such an exercise of powers is not conferred on the Family Court.

“Even the Supreme Court while considering exercise of discretionary powers under Article 142 of the Constitution of India takes into account several factors and longevity of period is only one of them,” the court added.

Therefore, the bench ruled that the family court’s order granting divorce to the husband on the ground of cruelty and breakdown of marriage was not sustainable.

Advocates Lohit Ganguly, Ajay Kumar and Mohit Khatri appeared for appellant.

Advocates K. Pandey and Vikram Panwar appeared for the respondent.

Title: D v. AK

Citation: 2023 LiveLaw (Del) 855