Irretrievable breakdown of marriage should be ground for divorce: Allahabad HC - Hindustan Times
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Irretrievable breakdown of marriage should be ground for divorce: Allahabad HC

ByJItendra Sarin, Prayagraj
Mar 02, 2024 10:52 PM IST

The court emphasises the need for amending grounds for divorce under the Hindu Marriage Act, 1955, to address modern day situations

The Allahabad high court has emphasised the need for amending the grounds for divorce under the Hindu Marriage Act, 1955, to address modern day situations. The court held that irretrievable breakdown of marriage must be made ground for divorce and asked the ministry of law and justice and the Law Commission to consider the matter in view of the observations made by the apex court as well.

The court allowed a first appeal moved by a doctor, who had challenged the order of the family court, Moradabad that rejected his divorce petition. (For Representation)
The court allowed a first appeal moved by a doctor, who had challenged the order of the family court, Moradabad that rejected his divorce petition. (For Representation)

Allowing a first appeal moved by a doctor, who had challenged the order of the family court, Moradabad that rejected his divorce petition, a division bench comprising Justice Vivek Kumar Birla and Justice Donadi Ramesh on February 29, 2024, observed, “When the Hindu Marriage Act was enacted in 1955, the sentiments and respect attached to the matrimonial ties was different and the manner in which marriages are taking place now was unheard of in those days.”

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The court cited “education, financial independence, breaking of caste barriers, modernisation, effect of western culture” as the reasons for such changes. It said the society is becoming more and more open and individualistic in nature, leading to lesser need of emotional support as well.

“Whether it is a love marriage or is an arranged marriage, all such factors do affect the relationship between the two”, the court said. As per the court, the easily entered marriages like love marriages are also easily resulting in matrimonial dispute between the two. “No matter, who is responsible for the same. The parties are not willing to continue such relationship or at least one party starts living separately,” the court observed.

The court made these observations while dealing with an appeal moved by a doctor, who has also served in the Indian Army for about 30 years, against the family court’s refusal to grant him divorce from his wife who is also a senior doctor. The couple got married in 2007. The wife had allegedly deserted the husband six years before he moved for divorce in 2015. The divorce was also sought on the grounds of cruelty.

However, the family court, Moradabad did not accept the husband’s case and rejected his petition for divorce on October 18, 2019. Hence, he filed the present first appeal before the high court in 2019. During the court proceedings, the husband’s main contention before the high court was that his wife had been staying away from him for a long time and that came under mental cruelty.

Considering the submissions, the court at the outset noted that irretrievable breakdown of marriage has been recognised as a ground for divorce by the Supreme Court since long. The court made a mention of the case of Naveen Kohli versus Neelu Kohli in which the apex court in 2006 spoke about including irretrievable breakdown of marriage as a ground for divorce. However, the high court remarked that even after about 18 years, nothing had been done in this regard.

“On one hand, the law recognises desertion of a petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition as one of the grounds for grant of divorce, whereas on the other hand, it is not understandable as to why the ground of irretrievable break down is not being recognized as one of the grounds, when the parties are living separately for so many years and in some cases, for decades together,” the court added.

“To our mind, irretrievable break down is an assessment of circumstances prevailing in lives of the parties to the marriage and if proved, would amount to mental cruelty,” the court observed. In the present case, the court said since the wife has been staying away from the husband for a very long now, it clearly shows she is not interested in continuing the matrimonial life.

“On that note, divorce can be granted,” the court added, while allowing the first appeal and granting a decree of divorce in favour of the husband. The court set aside the judgment of principal judge, family court, Moradabad dated October 18, 2019.

Meanwhile, the high court in its judgment also directed the registrar (compliance) to send a copy of this judgment to secretary, ministry of law and justice, department of legal affairs, government of India and the Law Commission for consideration of the matter in view of the observations of the apex court in the case of Naveen Kohli and other judgments.

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