Not fulfilling demand of separate home is NOT cruelty. Minor disputes, difference of opinion which are to be adjusted and tolerated, cannot be treated as cruelty. -wife cannot be allowed to advantage of her own wrong-desertion cruelty not proved-Bom HC

Not fulfilling demand of separate home is NOT cruelty. Minor disputes, difference of opinion which are to be adjusted and tolerated, cannot be treated as cruelty | wife cannot be allowed to advantage of her own wrong desertion cruelty not proved - Bombay HC

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO.77/2003

Mrs.Surbinder Kaur Sandeep Sood,
Age about 36 yrs.Occ.Nil
R/o C/O Shri.Sardulsingh
Re.E.G.55/4,Bhaira Nagar,
Dhanori Road,
Vishrantwadi,
Pune-422 015 Appellant/Ori.Petitioner

Vs.
Sandeep Rajkumar Sood,
Age about 40 yrs.Occ.Business,
Residing at 529/E,Kadamwadi,
Kolhapur 415 003       Respondent/Ori.Respondent
Ms.Ashwini Takalkar i/b Mr.Nitin Deshpande for Appellant
Mr.P.R.Arjunwadkar,for Respondent

Coram- A.M.Khanwilkar and    Mrs.Mridula Bhatkar,JJ

Reserved On-2nd  May,2011.

Pronounced On- 8th  December, 2011.

J U D G M E N T (Per Mrs.Mridula Bhatkar,J.):

1 The judgment and order dated 23/6/2003 passed by the Judge of Family Court, Pune is challenged in this appeal. The appellant/original petitioner had filed petition for divorce on the ground of cruelty and desertion under section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955.

2 The appellant and the respondent got married on 12/5/1993 and stayed together for a period of three years at Kolhapur, in the joint family of respondent consisting of parents and three sisters. It is the case of the appellant that she was not given freedom in the house and  was harassed in  number of ways by the mother and sisters of the respondent. She was not allowed to speak to the respondent and was  asked to do domestic work from morning to night. Many restrictions were imposed on her routine and she hardly could step out of the house. She was deprived of company of the respondent and had to obey the instructions/orders of her mother in law and sisters in law. For want of proper care and rest she had miscarriage. So her parents came to Kolhapur and gave her Rs.5,000/-for her own expenses. However, she was not allowed to spend that money for herself. Subsequently she again conceived and gave birth to male twins on 24/4/1996. She was not allowed to take proper rest and sisters of the respondent used to quarrel with her so the children were neglected. It is contended that in July, 1996 she was not allowed to go to the temple of goddess at Kolhapur. On that issue there was a big quarrel in the house. The respondent slapped the appellant, thereafter her sister in law Anju lodged false complaint with the police  that the appellant tried to commit suicide. On enquiry police called her father and she was sent to Pune alongwith her father.  She resided with her parents for 2-3 months. The respondent was supposed to come to her father’s house to take her back. However, he did not come. Therefore, in the month of January,1997 the appellant alongwith her father went to Kolhapur  to reside with the respondent. However, the respondent and his family members quarreled with the appellant and she alongwith her family members was driven out of the house  at odd hours of night. Since then she has been residing with her parents at Pune.It is contended that the respondent did not pay any maintenance to her and her children and did not bother to call her back. She, therefore, on the ground of cruelty and desertion filed petition for divorce in the Family Court at Pune, but it  was dismissed. Hence this appeal.

3 The respondent has denied all the contentions raised and allegations made in the petition and in the appeal.  He filed written statement and contested the petition that the grounds of cruelty and desertion are false and it is a cooked up story.   The petition was based on false averments and petitioner had withdrawn herself from the company of the respondent without any good cause. She has taken away two children and was not interested from the beginning to live with the respondent alongwith his family members. It is contended by the respondent that the petitioner wanted to reside separately only with the respondent and was interested to enjoy the life without taking any responsibility. She is pampered child of her parents. Despite such behaviour of the appellant, the respondent being a responsible and loving husband filed petition for conjugal rights bearing no.95/97 and it was decided in his favour. The petitioner did not come to stay with him. He filed execution proceedings, however, the petitioner did not show any interest and did not come to Kolhapur to live with him. It is contended that the petition was rightly dismissed as the petitioner could not prove her case of either cruelty or desertion.

4 The petitioner examined herself and also three witnesses viz. Nandlal Amarchand Shrishrimal, Sharadsingh Banga, and Captain Deepchandra. The respondent  husband offered himself as a witness and examined Shivaji Sankpal, Vijaya Toraskar and his sister Anju Rajkumar Sood.

5 Learned counsel for the appellant argued that cruelty is an aggravated form of harassment and it can be either expressly  proved or it can be inferred. She submitted that the appellant in her examination in chief has stated that the respondent husband had slapped her and the family members, especially the sisters of the respondent used to torture her by not giving food and not allowing her to go out of the house. Learned counsel pointed out that the application for the Restitution of Conjugal Rights though was decreed in favour of the respondent, the appellant never stayed with the respondent, therefore,  if the decree is not implemented till today then itself forms a ground for divorce.  She submitted that the maintenance ordered by the Court to her was  not paid by the respondent.  These aspects ought to have been considered by the Family Court. In support of her submissions she relied upon (Sanghmitra Ghosh Vs.Kalalkumar Ghosh) reported in 2007(2) SCC,220. She submitted that this being a irretrievable breakdown of the marriage the prayer of divorce be granted and the appeal deserves to be allowed.

6 Learned counsel for the respondent submitted that the appellant at the time of evidence could not narrate specific instances of cruelty and failed to bring any evidence to that effect. He pointed out that in her cross examination the petitioner has admitted that she has no grievance against the respondent but she was on inimical  terms and holding grudge against the mother and sisters of the respondent and this cannot be a ground for divorce. Hence the petition is rightly dismissed. 

7 The points framed by the Family Court and findings given are as follows.

POINTS       FINDINGS
1. Whether the petitioner proves thatthe respondent treated her with cruelty after solemnization of marriage ? No
2. Whether the petitioner proves that the respondent deserted her withoutjust and sufficient reason for a period of 2 years preceding the date of petition ?No
3. Is there any legal bar u/s 23 of  H.M.Act ?Not survive
4. Is petitioner entitled to decree of divorce? No
5. What about permanent alimony of petitioner and maintenance of children ?Not survive
6.   Is petitioner entitled to continue the permanent custody of children with her ?Yes,presently.

7. What order ?      As per final order

8 Issue nos.1 and 2 are  the ground for divorce i.e. cruelty and desertion. We have carefully gone through the evidence and judgment of the Trial Court. On the point of mental and physical cruelty, following incidents are stated by the appellant. 

Physical Cruelty-
1. Slapping the petitioner in the month of July,1996  when the appellant expressed her desire to
go to the temple.
2. She was driven out of the house at night in July,1997 alongwith her father.
3. Not giving food
4. Asking her to do the domestic work
 
Mental Cruelty-
1. Not allowing to talk to her husband.
2. Not allowing to go out3. Husband was not accepting her wish of separate residence and not to stay with sisters.
4. Not to give her Rs.5,000/- to spend.

9 The petitioner in her evidence, except giving slap and not giving food did not narrate any specific incident of physical cruelty against the respondent. It is oral uncorroborated evidence.  In fact she gave admission and showed readiness to stay  with the respondent and his mother. She did not like the company  of his sisters. House of the respondent is of 12 rooms. Thus, separate residence for the appellant and respondent could be possible,  if the respondent had accepted the offer. At any rate, as the  demand of separate residence cannot be considered as cause of cruelty,  for the same reason, non-acceptance of such demand by the husband also cannot be a cruelty. These are choices given by the spouses to each other and expression of choice and refusal of the choice itself is not a cruelty.   In the evidence of Anju, sister of the respondent, she has stated that she leaves home at 9 a.m. and returns at 6 p.m. Further, the appellant gave admission in her evidence that the mother of the respondent has taken her care during pregnancy. This shows that the appellant did not have any complaint against the mother of the respondent. It appears that the root cause of the dispute was due to stay of the sisters in the house,  an ego problem.

10 On the point of cruelty one Captain Deepchandra was examined by the appellant. He is maternal uncle of the respondent. He has produced one letter, Exh.25, written by the father of the respondent to him. He deposed that in that letter father of the respondent has written that , “ Surbinder was kicked out to Pune”. On reading the said letter the words “kicked out” appear to be added subsequently. However, further it is mentioned in the letter that the family was spending Rs.30,000/- per year on the appellant. Thus, her evidence that she was not given food, cannot be believed on the basis of the letter which is proved and relied by the appellant herself.

11   On 25/7/1996 a police complaint  was lodged by the sister of the respondent alleging that the appellant was trying to commit suicide by pouring kerosene on her body. This shows that the sister had diligently  reported the police station so that the police would take preventive measures and no untoward incident should happen. However, the attempt of the appellant to commit suicide when she was mother of 2-3 months old infants cannot be justified.  The evidence of police officer is on record which supports this and that cannot be doubted.  After going through this evidence we are of the opinion that the Judge of the  Family Court has properly appreciated the evidence of the witnesses of both the sides and has correctly arrived at the conclusion. It is settled position of law that a routine bickerrings  or petty quarrels cannot be labelled as cruelty under the Hindu Marriage Act.

12 The respondent though denied that amount of Rs.5000/- was received from the father of the appellant, he admitted that he  kept that amount in the Fix Deposit in the name of the appellant and he did not spend that money for himself. Further, the record shows that he had filed application for Restitution of Conjugal Rights which was decreed as the appellant failed to prove that she had withdrawn from the society of the husband with good and satisfactory cause.  Even in those proceedings the appellant had asserted cruelly caused by the respondent and his family members. However, that plea was negatived.  The said decree was not challenged by the appellant in appeal. Though the execution was taken out, she did not respond and the decree could not be executed.

13 It is admitted that on that day i.e. 25/7/1996 father of the appellant was called by the police. With a view to get the things settled she was sent to Pune at her father’s residence for 2-3 months. After two months the respondent did not bring back the appellant, so her father came to Kolhapur. The respondent told him to bring back the appellant to Kolhapur. On 25/1/1997 she came alongwith her father and some family members, out of which one is examined as a witness. There are two versions of the parties before the Family Court  that she was driven out of the house and secondly the father and other member who had gone there,  fought and put stringent condition which were not acceptable to the respondent, therefore, they took their daughter back to Pune. Be that as it may, the fact remains that  the appellant did not go back and continued to stay away from the respondent from July,1996. Any version of either of the parties if accepted, it is not a good ground to stay away from each other and to untie a nuptial knot.

14 Considering the nature of the dispute and the reasons given by the appellant, the separation cannot be justified.  It cannot be held that the respondent has deserted the appellant without any good cause. It appears that the appellant herself opted to stay with her parents at Pune and not to cohabit with the respondent. She did not respond to the decree of Restitution of Conjugal Rights and therefore, the findings given by the Family Court that animus deserendi was absent and so the divorce cannot be granted under the ground of desertion is correct. Minor disputes, difference of opinion which are to be adjusted and tolerated, cannot be treated as cruelty.

15 The respondent had filed petition for custody of children. However, it was rejected. He could not succeed in the appeal. The twins were born  in 1996 and now they are around 15 years old. Since childhood they are staying with mother and taking education. So the issue of permanent custody was rightly held in favour of the appellant. Indeed, after attaining majority, it would be open to the children to stay with parent of their choice i.e., continue to stay with the mother or reside with the father (respondent)

16 A demand of permanent alimony was made by the appellant. Our attention was drawn to the orders passed by the Trial Court and this Court in the maintenance petition filed by the appellant. The appellant had filed a petition for maintenance bearing number 218/97 and maintenance of Rs.400/- p.m. to the appellant and Rs.300/- p.m. to each child was granted. It was enhanced to Rs.800/- p.m. for the appellant and Rs.500/- p.m. to each child. The respondent filed an application for cancellation of maintenance, however, it was dismissed. Again the maintenance amount was enhanced by the Family Court to Rs.1,200/-p.m. to the appellant and Rs.1,000/-p.m. to each child. The respondent preferred Revision Applications before this Court bearing nos.654/2007 and 512/2008. The Revision Applications were dismissed by this Court on 18/7/2009. The respondent preferred Special Leave to Appeal (Criminal) 7870-7871/2009 and the same was dismissed by the Supreme Court. We do not wish to interfere with finding recorded by the Family Court on issue No.5. We also agree with the Family Court that the appellant is free to resort to other legal
remedies. 

17 It is necessary to note that when the appeal was taken up for hearing, we, in the first place, tried to persuade the parties to arrive at some amicable settlement.  However, we found that the parties were still holding grudge against each other and were not in a mood to adjust. Instead, the learned counsel for the appellant has advanced her submission that such a long separation amounts to irretrievable break down of the marriage and so the decree of divorce be granted. In the case of  Sanghmitra Ghosh (supra) the parties were residing separately since January, 2001. In a transfer petition before the Supreme Court to transfer the pending matrimonial petition to some other State;  they filed joint petition for a decree of divorce praying that the Court may grant decree of divorce by mutual consent. The Supreme Court accepted the plea of irretrievable break down of marriage and exercised its extraordinary jurisdiction under Article 142 of the Constitution and granted decree of divorce. In the present matter, having recorded finding on merits on the relevant points/issues raised by the rival side and thus upheld the decree passed by the Family Court which is impugned in this Appeal, we would follow the dictum of our High Court in the case of Ravindra M.Shelar v. Kalpana R.Shelar reported in 2002 (3) MLJ 746.(http://www.indiankanoon.org/doc/1343342/) The same applies on all fours to the facts of the present case. Inasmuch as, even in this case we have found that the appellant was responsible for non-compliance of decree of restitution of conjugal rights and had committed positive wrong. She cannot be allowed to take advantage of her own wrong as the legal bar in granting the decree of divorce was not lifted. 

18 We, therefore, do not wish to interfere with the judgment and order passed by the Family Court.

19. Hence the Appeal is dismissed with no order as to costs

.
(Mrs.Mridula Bhatkar,J.) (A.M.Khanwilkar,J.)

http://bombayhighcourt.nic.in/data/judgements/2011/CFCA3090503.pdf

SC - Deserting newborn can be ground for divorce

 

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5078 OF 2005

Bhavnaben ....Appellant

Versus

Harshad Zinabhai Desai ....Respondent

O R D E R

Aggrieved by the judgment and order of the High Court dated 21.11.2003,granting decree for divorce,dissolving the marriage of the appellant and the respondent, wife has filed the above appeal.

Both the appellant and respondent got married on 02.04.1989 and a daughter as born on 22.12.1989.It is the case of the husband that immediately after a month i.e.on 30.01.1990, the appellant-wife left the matrimonial home and the child who was about five weeks at Dadra and deserted him.

When there was a series of civil and criminal proceedings,the husband filed a petition for divorce on 13.02.1992 at District Court, Dadra and Nagar Haveli at Silvassa.

The appellant-wife filed a written statement on 29.07.1992 disputing the claim of the husband.Before the District Court, the huaband apart from examining himself as PW-1 also examined one independent witness by name Mr.Natwarlal Shah as PW-2. The wife has examined as RW-1.

By order dated 26.11.1999,the District Court,Silvassa,dismissed husband's petition for divorce. Questioning the dismissal of his divorce petition,the husband filed First Appeal No.635 of 2000 before the High Court of Bombay.The High Court,after considering all the materials including the evidences of PW-1,PW-2 and RW-1 and after finding that

(a) wife has no justifiable reason to stay away from her husband,

(b) refusing to cohabit,

(c) leaving one month child uncared for, accepted the case of the husband and granted decree for divorce by dissolving their marriage.

Challenging the said order of the High Court, the wife filed the above appeal by way of special leave petition.

Hard learned counsel for the appellant as well as for the respondent.

We perused the relevant materials such as specific assertions in the form of the petition and counter,evidence of PW-1,PW-2 and RW-1 as well as the orders passed by the District Court and the High Court.

There is no reason to disbelieve the evidence of independent witness,Mr. Natwarlal Shah (PW-2).From the materials,the following facts have been found proved by the High Court:

i) The wife left the matrimonial home leaving the infant child of five weeks, on 30.01.1990.

ii) There was no justification for the wife to leave the matrimonial home on 30.01.1990.

iii) The wife unjustifiably threw the entire responsibility of bringing up the child of five weeks on the Respondent husband.

iv) The appellant-wife refused to cohabit with the husband during several reconciliation attempts made during the pendency of the proceedings.

v) Obstinate attitude adopted by the appellant-wife in refusing the husband's bona fide offer of reconciliation.

In addition to the above factual findings,the High Court has also concluded that the wife is guilty of desertion for a continuous period of more than two years without any justification and on this ground also the husband is entitled for a decree of divorce.

It is also pointed out that there is an irretrievable break down of the marriage between the spouses who have lived separately for nearly 20 years from 30.01.1990.

Taking note of all these aspects,factual findings by the High Court based on acceptable evidence,conduct of the appellant-wife in leaving the matrimonial home immediately after giving birth to a child and refusal to join atrimonial home, we feel that the High Court was fully justified in granting decree for divorce in favour of the husband.

We do not find any merit in the appeal filed by the wife,consequently,the same is dismissed.

No cost.

...................J.

(P. SATHASIVAM)

...................J.

New Delhi, (Dr.B.S. CHAUHAN)

September 08, 2010.

ITEM NO.104 COURT NO.10 SECTION IX

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

CIVIL APPEAL NO. 5078 OF 2005

BHAVNABEN Appellant (s)

VERSUS

HARSHAD ZINABHAI DESAI Respondent(s)

(With appln. for permission to file rejoinder affidavit and office

report )

Date: 08/09/2010 This Appeal was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE P. SATHASIVAM

HON'BLE DR. JUSTICE B.S. CHAUHAN

For Appellant(s) Mr. Nitin K. Gupta, Adv.

Mr. Shivaji M. Jadhav,Adv.

For Respondent(s) Mr. A.V. Savant, Sr.Adv.

Mr. Shishir Deshpande, Adv.

Mr. Amit Yadav, Adv.

Ms. Sujata Kurdukar,Adv.

UPON hearing counsel the Court made the following

O R D E R

The appeal is dismissed. No cost.

[ Usha Bhardwaj ] [ Savita Sainani ]

Court Master Court Master

Signed order is placed on the file.

http://courtnic.nic.in/supremecourt/temp/ac%20507805p.txt

HC granted divorce on irretrievably broken down Marriage

HC granted divorce on irretrievably broken down Marriage

 

 

http://mynation.net/docs/40-2010/

Arrest of Husband reason to irretrievably broken down Marriage

Arrest of Husband reason to irretrievably broken down Marriage

http://mynation.net/docs/274-2010/

Delhi HC -Irretrievable Breakdown of Marriage (IBM) not a cakewalk

MAT APP 44/2005

                                                                         
  IN THE HIGH COURT OF DELHI AT NEW DELHI 

Judgment delivered on: 14.7.2010

MAT APP 44/2005

SUBHASH CHANDER SHARMA     ……Appellant
Through: Mr.Rajiv Dewan, Advocate.

Versus

ANJALI SHARMA          ……Respondent
          Through: None.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.  Whether the Reporters of local papers may     Yes
     be allowed to see the judgment?              
2.  To be referred to Reporter or not?                     Yes  
3.  Whether the judgment should be reported 
      in the Digest?              Yes

KAILASH GAMBHIR, J.  
*

1.    By this appeal filed under Section  28 of the Hindu Marriage Act, 1955 the appellant seeks to challenge
the  impugned  judgment and decree dated 12.05.2003 passed by the learned ADJ, Delhi thereby dismissing  the
divorce petition filed by the appellant under Section 13(1) (ia) & (ib) of the Hindu Marriage Act.

2.    Brief facts of the case  relevant for deciding the present appeal are that the marriage between the appellant and the respondent was solemnized on 29.11.1984  at Mathura, U.P according to Hindu rites and ceremonies. From this wedlock, two children were born i.e. on 10.02.1988 and 12.09.1992. Both the parties lived together as husband and wife for 14 years i.e. upto 15.02.1998.  The  acts  of cruelty based  on which the appellant-husband has sought decree of divorce under Section 13(1) (ia) of the Hindu Marriage Act mainly are that after the death of the father of the appellant the mother of the respondent started living with them and due to her presence the  atmosphere in the house got so surcharged that even the children started avoiding the appellant; the appellant though lived in the same house, but had to cook his own  food and do all his personal work himself; he felt neglected and depressed on account of  the behaviour of the respondent and her mother and ultimately on 15.02.1998 the appellant started living separately; the appellant made all efforts for  rapprochement  but  the respondent foiled all his attempts; the respondent gave instructions to the school  authorities  that the appellant
should not be allowed to meet the children; the respondent avoided to come to official telephone so as to talk with the appellant; the appellant was insulted by the respondent and her mother when he went to contact the respondent; the appellant was not even allowed to enter in the house; the respondent shifted her residence from housing society to some other place and she had also given instructions to her office not to disclose her new address to her husband; the appellant also wrote various letters to the respondent, but she did not respond to the same. The appellant has also averred that he has not condoned the acts of cruelty complained of against the respondent.

3.    So far the ground of desertion is concerned, the appellant averred that the respondent had deserted him
without any reasonable cause and against his wishes. The appellant has also averred that there has not been any willful neglect on his part and for no fault of the appellant the respondent deserted him.

4.    The respondent did not choose to appear after having been duly served with the notice. She, however,
sent reply by post, making certain allegations against the appellant. Accordingly, the respondent was proceeded ex parte by the Court vide orders dated 28.01.2003.

5.    In the evidence, the appellant examined himself as PW-1 and except his own evidence he did not adduce
any further evidence. In his evidence, the appellant deposed that he got married to the respondent on 29.11.1984 at Mathura, U.P and since thereafter they were living together as husband and wife. He also deposed that out of the said wedlock, two children i.e. one daughter and one son were born on 10.02.1988 and 12.09.1992 respectively. He further deposed that he was forced to leave the house on  15.02.1998 due to the circumstances created by the respondent and her mother, when  she had joined them after the death of the father of the appellant in the year 1996. It would be relevant to reproduce the entire evidence of the appellant as under:-

            “PW1 Subhash Chander Sharma, petitioner.

On S.A.:-   I got married on 22nd  of Nov. 1985 with the respondent. Marriage took place at Mathura, U.P. Reception was held in Delhi. Since then we were living together as husband and wife upto 15th February, 1998. On 15.02.1998 I was forced to leave the house due to the circumstances created by respondent and her mother
who joined us on the death of my father in 1996. The relation was unbearable facing lot of depression and continuous failure in life. I faced lot of embarrassment in the relations. I faced mental agony by continuing in the circumstances.  Out of the wedlock we had two children, daughter named Anupriya date of birth 10/2/88, son Chinmay Sharma date of birth 12 Sept. 1992. After the separation she issued instructions to the school authorities not to allow me to meet the children. My every effort for reapproachment was foiled by her. She did not attend even the phone calls I made at her official telephone. Even my letters which were of personal nature were not responded at all. My friends and relatives whosoever tried for the reapproachment faced humiliation and insult which closed the door at me for reapproachment.  The respondent deserted me without any major cause and reasonable cause. I have not condoned the acts of cruelties and the petition has not been filed in collusion with the respondent. My petition is correct.

                   sd/-
 

RO& AC          ADJ/Delhi
             6/3/2003”

6.    The appellant was not cross-examined by the respondent as she was proceeded ex parte by the Court. Based on the case set up by the appellant in his divorce petition and the said ex parte evidence adduced by him, the learned trial court came to the conclusion that theallegations of cruelty leveled by the appellant  do not constitute cruelty as envisaged under Section 13(1) (ia) of  the Hindu Marriage Act, 1955.    So far  as  the ground of desertion is concerned, the learned trial court found that it is the appellant himself who left the matrimonial home on 15.02.1998, therefore, no evidence on record has been adduced by the appellant to prove that the respondent had any intention  to bring the cohabitation permanently to an end. The learned trial court thus found that the appellant failed to establish any „animus deserendi‟ on the part of the respondent and in the absence of the same, the ground of desertion was also found to be not available to the appellant.

7.    Assailing the said judgment and decree of the learned trial court, the appellant preferred the present appeal.  Counsel appearing for the appellant strongly contended  that the respondent has neither contested the
petition before the learned trial court nor she is contesting the present appeal and, therefore, such conduct on the part of the respondent would be manifest of the fact that the marriage between the parties has irretrievably broken down. Counsel thus submitted  that this Court may direct dissolution of the marriage of  the parties on the said ground  itself. Counsel for the appellant further contended that the appellant fully established both the grounds of divorce i.e. cruelty as well as desertion beyond any shadow of doubt, but still the learned trial court dismissed the petition filed by the appellant. Counsel further contended that the learned trial court  committed  grave error by not appreciating the fact that the divorce proceedings were not contested by the respondent and, therefore, the evidence of the appellant remained unrebutted.

8.    In support of his arguments, counsel for the appellant placed reliance on the judgment of the Apex Court in  Naveen Kohli Vs. Neelu Kohli (2006) 4 SCC 558  and the judgment of this Court in the case of Gauri Shankar  Dhanwaria  Vs. Maya Devi, 2003(107) DLT 583.

9.    I have heard counsel for the appellant at considerable length  and have given my anxious consideration to the pleas raised by him.

10.    By way of the Marriage Laws (Amendment) Act, 1976, cruelty  was introduced  as a  ground of divorce  as
prior thereto    the  same was only a ground for claiming a decree of judicial separation under Section 10(1) (b) of the Hindu Marriage Act. The ground of cruelty was added with the omission of the expression “as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party” from Section 10 (1) (b). After the 1976 amendment, now Section 13(1) (ia) entitles the petitioner to claim decree of divorce, if after the solemnization of the marriage, he has been treated by the spouse with cruelty.  The term cruelty has not been defined in the Hindu Marriage Act and the legislature has left it to the courts to determine in the facts and circumstances of each case whether the conduct amounts to cruelty or not. In a plethora of judgments, the Apex Court and various High Courts of  the country have discussed  the scope of the concept of cruelty.

11.    In the case of  Shobha Rani v. Madhukar Reddi (1988) 1 SCC 105, the Apex Court with regard to cruelty observed as under:

“The word 'cruelty' has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i)(a) of the Act in the context of human conduct or behavior in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of  could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.

It will be necessary to bear in mind that there has been marked changed in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents.

Lord Denning said in Sheldon v. Sheldon [1966] 2 All E.R. 257 (CA)  'the categories of cruelty are not closed'. Each case may be different. We deal with the conduct of human beings who are no generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop  up in any case depending upon the human behavior, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.

12.    In the case of V.Bhagat v. D.Bhagat (1994) 1 SCC 337,  the Apex Court while explaining the  concept of
mental cruelty, observed as under:-

“16. Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be decided in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.

13.    The Apex Court in the case of Naveen Kohli v. Neelu Kohli,  (2006)  4  SCC  558  relied on the case of A.Jayachandra Vs. Aneel Kaur (2005) 2 SCC 22  where it was observed that :-

“55. The expression 'cruelty' has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem
presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other  spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. 

56. To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion  that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background
of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section  10  of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

57. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would
tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.”

14.    As  would be evident from the aforesaid observations of the Apex Court, it  is not the ordinary wear
and tear of the married life which would cause any sort of mental pain or cruelty to the petitioner. The conduct
complained of must be proved to be grave and weighty due to which the petitioner cannot be  reasonably  expected to live with his spouse. The Apex Court has also held that it is difficult to  lay down  any  precise definition  or to give exhaustive description of the circumstances  which would constitute cruelty. Therefore, in the facts of each case the conscience  of the Court should be satisfied that the relationship between the parties  had  reached to such an extent that it has become impossible or unbearable for them to stay together. Under the Rules of Hindu Marriage Act,  framed by this Court,  the petitioner approaching the Court is required to plead specific acts of cruelty and the occasions when and where such acts were committed by the other spouse.

15.    Rule 7(g) (iv) of the Hindu Marriage Rules, 1979 of this court states as under:-
“R.7.  Contents of petition.-In addition to the particulars required to be given under Order VII, Rule 1 of the Code and  Section 20(1) of the Act, all petitions under Sections 9 to 13 shall state:
      ……………………………
  (g)  the matrimonial offence or offences alleged or other grounds, upon which the relief is sought, setting out with sufficient particularity the time and places of the acts alleged and other facts relied upon, but not the evidence by which they are intended to be proved, e.g.:……………………………..
“(iv) in the case of alleged desertion, the date and the circumstances in which it began; in the case of cruelty the
specific acts of cruelty and the occasion when and the place where such acts were committed”.

16.    In the facts of  the present case, the allegations of cruelty leveled by the appellant against the respondent
are so vague, indefinite, unspecific and uncertain, not only in the petition but in his evidence as well. Without spelling out any specific acts of cruelty either  on the part of the respondent or her mother,  it is difficult to assume as to under what circumstances the appellant left his own house on 15.02.1998. Merely to say that the appellant started cooking his own food and his mother-in-law used to create scenes  in the house or the appellant felt neglected or depressed on account of behaviour of the respondent and her mother would not suffice  to prove mental cruelty on the part of the respondent  in the absence of  any specific dates or the period when the alleged acts were committed. Similarly, vaguely the appellant has alleged that he was not allowed to meet his own children due to some instructions given by the respondent to the school authorities and he was insulted by the respondent and her mother when the appellant went to meet the respondent at her house in the
housing society. The appellant has referred to some letters alleged to have been written by him to the respondent, but no such letters were proved on record by the appellant. 

17.    The appellant has also failed to establish the ground of desertion, as it is the own case of the appellant that he himself left the matrimonial house.   A bare perusal of the  lone  deposition of the appellant, as already reproduced above, would show that the appellant failed to establish either of the grounds.

18.    It is  a  settled legal position that even in an ex parte case, the petitioner is required to lead cogent  and convincing  evidence to prove and substantiate the averments made in the petition and the petitioner cannot derive any special advantage just on account of the fact that the respondent did not choose to contest the case or the testimony of the appellant remained unchallenged or unrebutted.

19.    In the present case, the appellant has  failed to establish with specific details any act or acts,  whether mental or physical,  due to which it became impossible or unbearable for him to live with the respondent. Similarly in the evidence as well,  the appellant (PW1),  in his sole testimony does not succeed to establish either the ground of cruelty or desertion on the part of the respondent. 

20.   The counsel for the appellant also submitted that this court should dissolve the marriage of the appellant on the ground of irretrievable breakdown of marriage. It would be important to bring forth that the High Court in the exercise of it inherent powers cannot grant divorce on the ground of irretrievable breakdown of marriage as it  is  yet  not a ground of divorce under the Hindu Marriage Act. Here, it would be pertinent to refer to the  recent  judgment of the Apex Court in the case of Vishnu Dutt Sharma vs. Manju Sharma (2009) 6 SCC 379  where it was held that :

“On a bare reading of Section  13  of the Act, reproduced above, 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. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature. Learned Counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown.  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. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned Counsel for the appellant”. Also recently, the Apex Court in the case of  Neelam Kumar vs. Dayarani, Civil Appeal No. 1957/2006  placed reliance on the judgment   of Vishnu Dutt Sharma (supra)   and reiterated the  same view and held that irretrievable breakdown of marriage is not a ground for divorce as it is not contemplated under Section  13  of the Hindu Marriage Act. 

21.    However,  it would be befitting to mention here that  the Apex Court in the  case of  Naveen  Kohli  vs. Neelu Kohli (supra)  recommended  to the legislature to make „irretrievable breakdown of marriage‟ as a ground for divorce.  The Apex Court in the said judgment was confronted with a situation where the parties were living separately  for a period of more than 10 years.  Based on the said recommendation made by the Apex Court in the said case,  as  also in  various earlier  decisions, the Law Commission of  India in  its 217th  report has  recently  again recommended  to the Parliament to introduce an amendment in the Hindu Marriage Act, 1955 and the Special Marriage Act 1954 to include  “irretrievable breakdown of marriage as another ground for divorce”.

23.  The relationship between husband and wife  is one of the most delicate emotional bonds and  needs constant nurturing, tolerance and understanding. This relationship once which was of love and mutual trust when starts to leave a bitter aftertaste bedeviling this bond  that it is no more bearable to stay under one roof is when they seek to legally put an end to such a marriage.  Divorce on the ground of irretrievable breakdown of marriage might be contrary to common perception and the idea of marriage being a holy union for seven births, but in the bid to preserve the unworkable marriage which has long ceased to be alive is abound to be a source of greater misery for the parties than the divorce itself.

24.    However it is a catch 22 situation as this ground can ease the way for many who are under the burden of a
doomed relationship to a breather but at  the same time it may give an opportunity to the ones trying to maneuver the alleys of law for their self conceited motives.

25.    There has been a lot of brainstorming with regard to the efficacy and societal impact that this ground
would have if it is made as a ground for divorce. On the recommendations of the Law Commission of India, the
Legislature in its wisdom would amend the Hindu Marriage Act to bring within its fold the ground of irretrievable
breakdown of marriage. However it is expected that watertight safeguards are introduced so as not to send the
message that now divorce has become a cakewalk.

26.    Henceforth, there are some key areas that need to be pondered upon.  The ground of irretrievable breakdown of marriage cannot be resorted to as a strait jacket formula leading to the institution of marriage becoming so fragile that the wrong doer abuses it for his selfish ends leaving the other party in lurch. But it is only when the court is satisfied that the marriage has been wrecked beyond the hope of salvage and there is no chance of their coming together should the court open the deadlock of wedlock. 

27.    It is an open secret that getting a decree of divorce takes an invariably long time and with the existing grounds available, it leads the parties to level acrimonious allegations antagonizing each other. Consequently, when the decree of divorce is granted then the other party appeals to the High Court, and if unsuccessful, reaches the Supreme Court in the hope for relief, therefore prolonging the  already gruesome legal battle. It happens in a lot of cases that in the end during this vicious legal voyage, whatever little hope there is of reconciliation is anyway diminished leading the parties pitiful and penniless. 

28.    Adding to the woes, if there are children born out of the wedlock, then they suffer immensely; emotionally, psychologically and even financially, depriving them of proper upbringing and education due to meager means of one of the spouses.  A divorce from a spouse is not a divorce from the children and they should not be punished for the act of their parents. Hence if this ground is added it has to be taken care of that the children do not bear the brunt between two warring adults and that a proper mechanism is in place for taking care of all their needs. The child‟s well being, who  is but a mute spectator and officially not a party to the lawsuit, should be the eye of the resolution.

29.    Also in cases where the wife is the respondent, and the husband orchestrates a breakdown and unilaterally
wants to terminate the marriage on this ground, it has to be taken care of that to achieve his ulterior motive the
husband on the premise of a deadlock does not leave the wife  impoverished or at the mercy of her parents. 

30.    Hence, succinctly,  this court is of the opinion that there should be adequate provisions with regard to the
following:

  There should be a minimum period before which this ground cannot be invoked as a ground for divorce.

  In the case where this ground has been invoked by the husband, then the grant of divorce should only be
subject to the provision of adequate financial provisions for the wife

   In case where there are children born out of the wedlock then adequate provision for the grant of maintenance, education  and upbringing  of the children should be in place before grant of divorce

  The issue of custody of the children  and visitation rights  should also be decided at the very stage of divorce itself

  This ground should be an independent provision and not a complimentary or supplementary provision along with any other ground under section 13 of the Act The goal in the end to add this ground of irretrievable breakdown of marriage  should be with aim of providing a solution to a lethal problem and not to defame the Hindu Marriage Act for breaking more families than it has united. 

31.    However, in view of the aforesaid observations, the contention of the appellant that this Court should grant
divorce on the ground of irretrievable breakdown of marriage does not hold good. 

32.    Hence in the light of the above discussion this Court does not find any illegality or perversity in the impugned judgment and decree dated 12.05.2003 passed by the learned trial court. 

32.       There is no merit in the present appeal and the same is accordingly dismissed.

July 14, 2010

KAILASH GAMBHIR, J.
dc

source - http://lobis.nic.in/dhc/KG/judgement/09-08-2010/KG14072010MATA442006.pdf

Irretrievable breakdown of marriage as new clause for divorce – Bill amending the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.

source ;- http://164.100.24.219/BillsTexts/RSBillTexts/asintroduced/marrge%20law%20as%20intro.pdf

AS INTRODUCED IN THE RAJYA SABHA

Bill No. XLI of 2010

THE MARRIAGE LAWS (AMENDMENT) BILL, 2010

A

BILL

further to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.

BE 

it enacted by Parliament in the Sixty-first Year of the Republic of India as follows:—

CHAPTER I

PRELIMINARY

Short title and commencement.

1. (1) This Act may be called the Marriage Laws (Amendment) Act, 2010.
   (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette.appoint.

CHAPTER II

AMENDMENTS TO THE HINDU MARRIAGE ACT, 1955

Amendment of section 13B.

2. In the Hindu Marriage Act, 1955 (hereafter in this Chapter referred to as the Hindu Marriage Act), in section 13B, in sub-section (2), for the words, brackets and figure “On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime”, the words, brackets and figure "Upon receipt of a petition under sub-section (1)" shall be substituted.

Insertion of new sections 13C, 13D and 13E.

3. After section 13B of the Hindu Marriage Act, the following sections shall be inserted, namely:—

Divorce on ground of irretrievable breakdown of marriage.

13C (1) A petition for the dissolution of marriage by a decree of divorce may be presented to the district court by either party to a marriage [whether solemnized before or after the commencement of the Marriage Laws  (Amendment) Act, 2010], on the ground that the marriage has broken down irretrievably.
(2) The court hearing a petition referred to in sub-section (1) shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years immediately preceding the presentation of the petition.
(3) If the court is satisfied, on the evidence, as to the fact mentioned in sub- section (2), then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce.
(4) In considering, for the purpose of sub-section (2), whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months’ in all) during which the parties resumed living with each other, but no other period during which the parties lived with
each other shall count as part of the period for which the parties to the marriage lived apart.
(5) For the purposes of sub-sections (2) and (4), a husband and wife shall be treated as living apart unless they are living with each other in the same household, and reference in this section to the parties to a marriage living with each other shall be construed as reference to their living with each other in the same household.

Wife’s right to oppose petition on ground of hardship.
13D. (1) Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 13C, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage.
(2) Where the grant of a decree is opposed by virtue of this section, then,—
(a) if the court finds that the petitioner is entitled to rely on the ground set out in section 13C; and
(b) if, apart from this section, the court would grant a decree on the petition, the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if, the court is of the opinion that the dissolution of the marriage shall
result in grave financial hardship to the respondent and that it would, in all the circum- stances, be wrong to dissolve the marriage, it shall dismiss the petition, or in an appropriate case stay the proceedings until arrangements have been made to its satis- faction to eliminate the hardship.

Restriction on decree for divorce affecting children
13E. The court shall not pass a decree of divorce under section 13C unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.
Explanation.— In this section, the expression “children” means—
(a) minor children;
(b) unmarried or widowed daughters who have not the financial resources to support themselves; and
(c) children who, because of special condition of their physical or mental health, need looking after and do not have the financial resources to support themselves.’.

Amendment of section 21A.

4. In section 21A of the Hindu Marriage Act, in sub-section (1), after the word and figures “section 13”, at both the places where they occur, the words, figures and letter “or section 13C” shall be inserted.

Amendment of section 23.

5. In section 23 of the Hindu Marriage Act, in sub-section (1), in clause (a), after the word and figure “section 5”, the words, figures and letter “or in cases where the petition is presented under section 13C” shall be inserted.

CHAPTER III

AMENDMENTS TO THE SPECIAL MARRIAGE ACT, 1954 – Act 43 of 1954.

Amendment of section 28.

6. In the Special Marriage Act, 1954 (hereafter in this Chapter referred to as the Special Marriage Act), in section 28, in sub-section (2), for the words, brackets and figure “On the motion of  both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime” the words, brackets and figure "Upon receipt of a petition under sub-section (1)" shall be substituted.

Insertion of new sections 28A, 28B and 28C.

7. After section 28 of the Special Marriage Act, the following sections shall be inserted, namely:—

Divorce on ground of irretrievable breakdown of marriage.

‘28A. (1) A petition for the dissolution of marriage by a decree of divorce may be presented to the district court by either party to a marriage [whether solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 2010] on the ground that the marriage has broken down irretrievably.

(2) The court hearing a petition referred to in sub-section (1) shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years immedi-ately preceding the presentation of the petition.
(3) If the court is satisfied, on the evidence, as to the fact mentioned in sub-section (2), then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce.
(4) In considering, for the purpose of sub-section (2), whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months in all) during which the parties resumed living with each other, but no other period during which the parties lived with each other shall count as part of the period for which the parties to the marriage lived apart.
(5) For the purposes of sub-sections (2) and (4), a husband and wife shall be treated as living apart unless they are living with each other in the same household, and reference in this section to the parties to a marriage living with each other shall be construed as reference to their living with each other in the same household.

Wife’s right to oppose petition on ground of hardship.

28B. (1) Where the wife  is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 28A, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would, in all the circumstances, be wrong to dissolve the
marriage.
(2) Where the grant of a decree is opposed by virtue of this section, then,—
(a) if the court finds that the petitioner is entitled to rely on the ground set out in section 28A; and
(b) if apart from this section the court would grant a decree on the petition, the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if, the court is of the opinion that the dissolution of the marriage shall
result in grave financial hardship to the respondent and that it would in all the circum- stances be wrong to dissolve the marriage, it shall dismiss the petition, or in an appro-priate case stay the proceedings until arrangements have been made to its satisfaction to eliminate the hardship.

Restriction on decree for divorce affecting children.

28C. The court shall not pass a decree of divorce under section 28A unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.
Explanation.— In this section, the expression “children” means—
(a) minor children;
(b) unmarried or widowed daughters who have not the financial resources to support themselves; and
(c) children who, because of special condition of their physical or mental health, need looking after and do not have the financial resources to support themselves.’.

Amendment of section 40A.

8. In section 40A of the Special Marriage Act, in sub-section (1), after the word and figures “section 27”, at both the places where they occur, the words, figures and letter “or section 28A” shall be inserted.

STATEMENT OF OBJECTS AND REASONS

The Hindu Marriage Act, 1955 was enacted on the 18th May,  1955 to amend and codify the law relating to marriage among Hindus. Similarly, the Special Marriage Act, 1954 was enacted on the 9th October, 1954 to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce. The provisions of the said Acts have proved to be inadequate to deal with the issue where there has been irretrievable breakdown of marriage and therefore a need has been felt for certain amendments therein.

2. In view of the demand from various quarters for making irretrievable breakdown of marriage as a ground for divorce under the Hindu Marriage Act, 1955, the Central Government referred the matter to the Law Commission of India for its consideration. The Law Commission in its 71st  Report titled "The Hindu Marriage Act, 1955 — Irretrievable Breakdown of Marriage as a Ground of Divorce" submitted in April, 1978 had examined the
issue in detail and recommended amendments to the Hindu Marriage Act, 1955 to make irretrievable breakdown of marriage as a new ground for granting a decreee of divorce among the Hindus. Accordingly, a Bill, namely, the Marriage Laws (Amendment) Bill, 1981, further to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, was introduced in Lok Sabha on the 27th February, 1981. However, before the Bill could be considered and passed by Lok Sabha, the Seventh Lok Sabha was dissolved on 31st December, 1984, and
hence the Bill lapsed.

3. Subsequently, the Hon'ble Supreme Court in Ms. Jorden Diengdeh vs. S.S. Chopra (AIR 1985 SC 935) had pointed out the necessity to introduce irretrievable breakdown of marriage and mutual cosent as grounds for grant of divorce in all cases. Similarly in Naveen Kohli vs. Neelu Kohli (AIR 2006 SC 1675), the Hon'ble Supreme Court recomended to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for divorce.

4. Further, the 18th  Law Commission of India suo motu took up the mater and in its 217th Report titled 'Irretrievable Breakdown of Marriage —Another Ground for Divorce' presented to the Government in March, 2009 recommended that 'Irretrievable breakdown of marriage' should be incorporated as another ground for grant of a decree of divorce under the afore- said Acts.

5. Having regard to the recommendations of the Law Commission of India and the observations of the Hon'ble Supreme Court as aforesaid and the demand from various quarters, it is proposed to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 so as to provide for irretrievable breakdown of marriage as a ground of divroce thereunder subject to certain safeguards to the wife and affected children.
 

6. At present, a petition for grant of a decreee of divorce on the ground of mutual consent could be presented by both the parties to the marriage together before the court under sub-section (1) of section 13B of the Hindu Marriage Act, 1955 and similarly under sub-section (1) of section 28 of the Special Marriage Act, 1954. Under sub-section (2) of section 13B and that of section 28 respectively, the parties have to move a motion jointly not
earlier than six months after the date of presentation of the petition referred in sub-section (1) and not later than eighteen months after the said date for the said purpose. It has been observed that in several cases one of the parties do not turn up for filing the motion jointly with the other party under sub-section (2) of section 13B of the Hindu Marriage Act, 1955 or under sub-section (2) of section 28 of the Special Marriage Act, 1954, as the case may be, leading the party desirous of obtaining a decree of divorce hapless and remediless. In order
to mitigate such hardships and to allow divorce in cases of complete failure of such marriages, it is proposed to amend sub-section (2) of section 13B of the Hindu Marriage Act, 1955 and sub-section (2) of section 28 of the Special Marriage Act, 1954, respectively, by doing away with the aforesaid condition of moving motion subsequently.

7. In case the wife happens to be the respondent in respect of a petition for grant of a decree of divorce on the ground of irretrievable breakdown of marriage under the proposed new section 13C of the Hindu Marriage Act, 1955 or under the proposed new section 28A of the Special Marriage Act, 1954, as the case may be, the wife is entitled to oppose the grant of a decree of divorce on the ground that a dissolution of the marriage will result in grave financial hardship to her. Similarly, provision has been made to restrict grant of a decree of divorce on the ground of irretrievable breakdown of marriage if the court is satisfied that adequate provision for the maintence of children born out of the marriage has not been made consistently with the financial capacity of the parties to the marriage.

8. The Bill seeks to achieve the above objects.

NEW DELHI;M. VEERAPPA MOILY.

The 13th July, 2010.ANNEXURE
EXTRACTS  FROM  THE  HINDU  MARRIAGE  ACT,  1955
( 25 OF 1955)
*****
13B. (1)   *****
(2)     On the motion of both the parties made not earlier than six months after the date
of the presentation of the petition referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn in the meantime, the court shall, on
being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a
marriage has been solemnized and that the averments in the petition are true, pass a decree
of divorce declaring the marriage to be dissolved with effect from the date of the decree.
*****
21A. (1) Where—
(a) a petition under this Act has been  presented to a district court having
jurisdiction by a party to a marriage praying for a decree for judicial separation under
section 10 or for a decree of divorce under section 13, and
(b) another petition under this Act has been presented thereafter by the other
party to the marriage praying for a decree for judicial separation under section 10 or for
a decree of divorce under section 13 on any ground, whether in the same district court
or in a different district court, in the same State or in a different State,
the petitions shall be dealt with as specified in sub-section (2).
*****
23. (1) In any proceeding under this Act, whether defended or not, if the court is
satisfied that—
(a)  any of the grounds for granting relief exists and the petitioner   except  in
cases where the relief is sought by him on the ground specified in sub-clause (a),
sub-clause (b) or sub-clause (c) of clause (ii) of section 5 is  not in any way taking
advantage of his or her own wrong or disability for the purpose of such relief, and
*****
then, and in such a case, but not otherwise, the court shall decree such relief accordingly.
*****
EXTRACTS  FROM THE SPECIAL MARRIAGE ACT, 1954
( 43 OF 1954)
*****
28. (1)   *****
(2) On the motion of both the parties made not earlier than six months after the date of
the presentation of the petition referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn in the meantime, the district court
shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks
fit, that a marriage has been solemnized under this Act, and that the averments in the petition
Divorce by
mutual
consent.
Power to
transfer
petitions in
certain cases.
Decree in
proceedings.
Divorce by
mutual
consent.
78
are true, pass a decree declaring the marriage to be dissolved with effect from the date of the
decree.
*****
40A. (1) Where—
(a)  a petition under this Act has been presented to the district court having
jurisdiction by a party to the marriage praying for a decree for judicial separation under
section 23 or for a decree of divorce under section 27, and
(b)  another petition under this Act has been presented thereafter by the other
party to the marriage praying for decree for judicial separation under section 23, or for
decree of divorce under section 27 on any ground whether in the same district court or
in a different district court, in the same State or in a different State,
the petition shall be dealt with as specified in sub-section (2).
*****
Power to
transfer
petitions in
certain cases.RAJYA   SABHA
A
BILL
further to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
————
(Shri M. Veerappa Moily, M.P.)
GMGIPMRND—3365RS(S4)—30-07-2010.