The Delhi High Court recently made a clear statement that family courts cannot grant divorce on the grounds of there being an irretrievable breakdown of marriage.
Dealing with one of the such cases involving Hindu parties, the Court observed that the family court must act strictly in accordance with the provisions governing the grant of divorce under the Hindu Marriage Act.
A division bench of Justices Sanjeev Sachdeva and Vikas Mahajan highlighted that an irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, while setting aside a family court judgment granting divorce on such a ground, among other grounds.
The High Court explained that only the Supreme Court has given power to grant divorce, on the ground of irretrievable breakdown of marriage, under Article 142 of the Constitution.
“Such a power is not vested in the High Courts leave alone the Family Courts,” said the bench.
The Court was hearing a woman’s appeal made against a family court’s 2018 order allowing her husband’s plea for divorce on the grounds of cruelty and desertion.
The Couple got married in 2002 and a daughter was born out of this marriage in 2007. Soon the couple started living separately.
The High Court noted that the family court had granted divorce to the couple on the grounds of denial of conjugal relationship, even though the allegations of denial of conjugal relationship were vague and without specifics.
It further observed that there was never any complete denial as the husband had admitted that he was allowed to enjoy conjugal relations 30-35 times. The Court also said the birth of their child proves the allegation of denial of conjugal rights false.
On the aspect whether there was a breakdown of marriage, the Court noted that the wife had consistently maintained her stance that she wanted to live with the husband but he had refused to live with her. The Court opined that there was no any fault of the wife.
The Court said, “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 walk out of the matrimonial alliance on the ground that the marriage has broken down.“
The Court also noted that the family court merely considered the fact that the couple had been living separately for 11 years and granted divorce on the same ground. However, the High Court highlighted that such power is not conferred on the family court.
Even the Supreme Court while considering the exercise of its discretionary powers under Article 142 of the Constitution of India considers numerous factors, added the High Court. The longevity of the period of living separately is only one of such factors, not a whole in itself, the Court observed.
Thus, the division bench proceeded to conclude, while allowing the woman’s appeal against the grant of divorce, “In the present case, the Family Court has erred in travelling beyond the scope of its powers to grant divorce.“
Advocate Lohit Ganguly, Ajay Kumar, and Mohit Khatri appeared for the appellant, wife.
Advocate DK Pandey and Advocate Vikram Panwar appeared for the defendant, husband.
News Source: https://www.barandbench.com/news/delhi-high-court-family-courts-divorce-breakdown-marriage