‘Irretrievable breakdown’ of marriage no ground for divorce: apex court

March 4th, 2009 - 1:40 pm ICT by IANS  

New Delhi, March 4 (IANS) Irretrievable breakdown of marriage is no ground for divorce for those married under the Hindu Marriage Act because the law does not recognise it, the Supreme Court has ruled.

Dismissing a Hindu husband’s plea for divorce, a bench of Justices Markandey Katju and V.S. Sirpurkar stated that the Hindu Marriage Act, 1955, did not recognise “irretrievable breakdown” as ground for the dissolution of marriage.

The bench said no court, including the apex court, was empowered to issue a decree for divorce on the ground of “irretrievable breakdown” of marriage as it would amount to amending the Hindu Marriage Act by judicial verdict and adding “irretrievable breakdown” of marriage as a new ground for divorce.

A law can be amended only by legislature and not by judicial verdict, the bench said in its ruling that was pronounced Feb 27 but released Tuesday.

“Section 13 of the Hindu Marriage Act, 1955 provides for several grounds for granting divorce e.g. cruelty, adultery, desertion etc. but no such ground of irretrievable breakdown of the marriage has been mentioned for granting divorce,” the bench noted.

“On a bare reading of Section 13 of the Act, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce,” the bench said.

If the apex court had in the past issued a decree for divorce on the ground of “irretrievable breakdown”, it might have done so wrongly, the bench said.

The bench made this observation as the counsel for the husband pleaded for divorce to his client, saying that the apex court had in several cases issued the decree of divorce on the ground of “irretrievable breakdown”.

It rejected the contention saying: “In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the court without considering the legal position is not a precedent.”

“If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the court,” the bench said.

“It is for the parliament to enact or amend the law and not for the courts,” it added.

The court was adjudicating an appeal by a Delhi resident, who had first gone to the lower court for a divorce on the grounds of his wife’s alleged cruel behaviour towards him.

As the lower court and later the Delhi High Court dismissed his plea, finding that it was he who had been subjecting his wife to cruelty, he moved the apex court pleading irretrievable breakdown of his marriage and saying that his wife had not spent more than 25 days with him.

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