The Court indicated that unless there is cogent evidence of wilful desertion or refusal to cohabit, the marriage cannot be said to have “irretrievably broken down” for a divorce to be granted.
The Supreme Court has clarified that courts cannot automatically assume that a marriage has “irretrievably broken down” or grant divorce solely because the spouses are living apart. Before reaching such a conclusion, it is essential to determine which spouse was responsible for the separation.
In its order dated November 14, the Bench comprising Justice Surya Kant (now Chief Justice of India) and Justice Joymalya Bagchi noted with concern that many courts have been prematurely treating marital separation as proof of an irreparable breakdown of marriage.
The Bench said that before deciding that a marriage cannot be saved, courts should first find out the real reason for the separation. They must check whether one spouse deliberately left the other, or whether the person had no choice but to live apart because of difficult circumstances.
“Courts, in recent times, often observe that since the parties are living separately, the marriage should be taken to have broken irretrievably. However, before jumping to such a conclusion, it is imperative upon the Family Court or the High Court to determine as to who out of the two is responsible for breaking the marital tie and forcing the other to live separately,” it said.
The Court stated that a marriage cannot be treated as “irretrievably broken down” for the purpose of granting divorce unless there is strong proof that one spouse deliberately left the other or refused to live together.
It further noted that this issue becomes even more important when a child is involved.
“Unless there is cogent evidence for willful desertion or refusal to cohabit and/or look after the other spouse, the finding of marriage having been broken irretrievably is likely to have devastating effects, especially on the children. The arrival of such a conclusion puts the Courts under an onerous duty to deeply analyse the entire evidence on record, consider the social circumstances and the background of the parties, and various other factors,” the order said.
The Court made the observation while hearing a case that began in 2010, when a man first sought divorce on the ground of cruelty, but later withdrew that petition. In 2013, he filed a fresh petition, this time accusing his wife of desertion.
The trial court dismissed the case in 2018 after finding no proof that the wife had deserted him. However, in 2019, the Uttarakhand High Court overturned that decision and granted the man a divorce. The wife then challenged this order before the Supreme Court.
The Supreme Court pointed out that the High Court had granted divorce on the ground of cruelty without properly examining crucial issues involved in the case.
The Supreme Court criticised the High Court for believing only the husband’s statements while overlooking the wife’s allegation that she had been forced out of her matrimonial home and had been raising their child on her own.
The Bench further noted that the High Court had failed to consider important legal issues that were central to the case — such as whether the husband was allowed to file a second divorce petition on the same grounds after withdrawing the first one, and whether the wife had in fact suffered cruelty by being denied entry to her matrimonial home and by not receiving maintenance for the child.
The Supreme Court stated that in matrimonial disputes, courts have a heavy responsibility to carefully examine all the evidence, understand the social and family background of both spouses, and consider every relevant factor before making a decision.
Accordingly, the Supreme Court overturned the divorce decree and sent the case back to the High Court for a fresh evaluation.