Irretrievable Break Down Is Not A Ground To Grant Divorce In A Contested Action: Calcutta HC [Read Judgment]

The District court, though found that the cruelty as urged by the man is not proved, had granted divorce on the ground that the marriage between the parties is irretrievably broken down.

In the appeal, the bench comprising Justice IP Mukerji and Justice Amrita Sinha observed that that irretrievable break down is not a ground to grant divorce in a contested action. Justice Mukerji upheld the lower court order holding that there was sufficient mental torture which entitled the husband to obtain divorce, while Justice Amrita opined that the mental cruelty is not proved in this case and that irretrievable break down of marriage cannot be held to be a valid ground for dissolution of the marital tie.

Justice Amrita said that granting divorce on the ground of irretrievable breakdown will set a very bad precedent and will give rise to a dangerous trend in the society. The judge said:

"In the absence of legislation irretrievable break down of marriage cannot be held to be a valid ground for dissolution of the marital tie. The same will set a very bad precedent and will give rise to a dangerous trend in the society. Unwilling or erring partners without any fault of the other partner will proceed before the Court for obtaining divorce on the said ground. It is true that in modern time difference of opinion, culture, taste etc. often leads to acrimonious relationship in between the parties. Obtaining divorce by paying a price has become a common phenomenon but the same is possible only if both the parties mutually agree to the same. In the absence of mutual consent divorce can be granted only on the grounds as mentioned in the Act and not otherwise."

Justice Mukerji held that the wife had inflicted mental torture on the husband. The judge noted that most of the pleading in the plaint filed by husband is about refusal of sex by the wife. The husband had alleged that the wife completely refused to have physical relationship with him from the year 2001. The judge said:"There is evidence to suggest that from 2001 the respondent/husband had been requesting his wife to be physically proximate with him, which she repeatedly denied to him. This more than anything was sufficient mental torture which entitled the husband to divorce."

On this aspect of 'cruelty', Justice Amrita had a different opinion. The Judge said:"The husband himself is at fault by deserting the appellant wife and has claimed relief of divorce. It is he who inflicted mental cruelty to the appellant wife by leaving her alone and making all sorts of filthy allegations against her. The Court below disbelieved the evidences given against the appellant wife. It is very gracious on the part of the wife who inspite of all the allegations made against her is ready and willing to perform her marital duties. Law does not entitle a person to take advantage of his own wrong."

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