The Delhi High Court has said family courts cannot grant divorce on the ground of irretrievable breakdown of marriage observing it is not a ground for divorce under the Hindu Marriage Act (HMA).
A division bench of Justice Sanjeev Sachdeva and Justice Vikas Mahajan in its September 19 order referred to the judgment of the Supreme Court’s Constitution Bench pronounced this year. The bench said the power to grant divorce on the ground of irretrievable breakdown of marriage is exercised by the Supreme Court under Article 142 of the Constitution of India to do complete justice to both parties.
“Such a power is not vested in the High Courts, leave alone family courts. In the instant case, the family court has merely considered the fact that the parties have lived separately for 11 years and granted divorce on the grounds of the breakdown of marriage,” the bench said.
“Such an exercise of powers is not conferred on the family court. 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 bench added.
The court made the observations while setting aside a September 18, 2018, family court order allowing the man’s petition seeking divorce on the grounds of cruelty and desertion. The family court had also dismissed the woman’s counterclaim seeking restitution of conjugal rights. The woman moved the High Court against this dismissal.
Observing that the family court had “erred in travelling beyond the scope of its powers” to grant divorce, the High Court said the family court order granting divorce on the ground of cruelty and breakdown of marriage is not sustainable and set it aside.
“The divorce petition filed by the respondent (man) is dismissed,” the HC said while allowing the wife’s appeal. The HC also dismissed the woman’s plea against the order which dismissed her petition for restitution of conjugal rights, after the woman said she did not wish to press it.
The family court had granted divorce in 2018 primarily on the ground that there was a denial of conjugal relationship by the woman and that since the couple had been living separately for 11 years, the “marriage had broken down irreparably”.
The couple got married in February 2002 and had a daughter in January 2007. According to the husband, they had been living separately since January 2007 and as per the woman since May 2007.
The man filed a divorce plea before the family court in 2011 alleging the woman used to exert pressure upon him to separate himself from his family members. The man also alleged that from the first day of marriage, the woman “had created scenes at night hours and most of the times did not allow him to enjoy his conjugal rights”. She allegedly refused for him to have access to her and inflicted cruelty upon him, the man claimed.
The family court had held that “there was no normal and healthy sexual relationship between the respondent and his wife (appellant) and the same has resulted in striking at the very foundation of their marriage. Sex is the foundation of marriage and without vigorous and harmonious sexual activity, it would be impossible for any marriage to continue” and granted divorce.
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The HC observed the family court had held that the cruelty as alleged by the man had not been proved by him. However, it went on to grant a divorce on the grounds of denial of a conjugal relationship.
On this point, the High Court said, “Said ground is clearly not available to the respondent (husband) and the family court has erred in returning a finding that there is a denial of conjugal relationship by the appellant (wife). 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 HC observed the fact that the couple had a daughter clearly shows the husband’s allegation of being denied conjugal relations is “incorrect”. Referring to a 1975 judgment of the SC, the bench said “conception of a child cannot be termed to be a single act of conjugal relationship” and would in fact amount to “condoning the earlier actions of denial of conjugal relationship”, even if one were to assume that such a relationship was denied by the wife.