Divorce - Irretrievable breakdown of marriage
kiran
(Querist) 18 February 2011
This query is : Resolved
Hi,
My petition for divorce based on cruelty has been dismissed.
Can I apply a new petition based on "irretrievable breakdown of marriage” ground,
as I am no longer willing to live with my wife..
Also, please let me know how can I prove "irretrievable breakdown of marriage" ground.
Thanks and Regards,
Kiran.
Kirti Kar Tripathi
(Expert) 18 February 2011
rretrievable breakdown of marriage can be defined as such failure in the matrimonial relationship or such circumstances adverse to that relationship that no reasonable probability remains of the spouses remaining together as husband and wife for mutual comfort and support[1] It is the situation that occurs in a marriage when one spouse refuses to live with the other and will not work towards reconciliation. When there is not an iota of hope that parties can be reconciled to continue their matrimonial life, the marriage can be considered as Irretrievable Breakdown of marriage
the courts have been adopting a more realistic view to deal with the cases. This viewpoint was reiterated in the case of V. Bhagat v. D.Bhagat[9] where court stated that irretrievable breakdown of marriage is not a ground by itself. In Ajay desai V Rajshree desai[10] where the alleged grounds (cruelty and desertion ) were no proved, the petioner could not plead irretrievable breakdown of marriage , more so when the wife had all along expressed a genuine desire to live with her husband. In Neetu Kohli v. Naveen Kohli[11] husband alleged that the wife was quarrelsome and was found in compromising situation with one Biswas Rout. The wife counter alleged that husband had a concubine. This established that the marriage had broken down irreparably and hence granted divorce on grounds of an irretrievable breakdown.
In a recent decision of this Court in the case of Rishikesh Sharma v. Saroj Sharma[12] in this Court observed that the respondent wife was living separately from the year 1981 and the marriage has broken down irretrievably with no possibility of the parties living together again. The Court further observed that it will not be possible for the parties to live together and therefore there was no purpose in compelling both the parties to live together. Therefore the best course was to dissolve the marriage by passing a decree of divorce so that the parties who were litigating since 1981 and had lost valuable part of life could live peacefully in remaining part of their life. The Court further observed that her desire to live with her husband at that stage and at that distance of time was not genuine.
Thus, the statutory position as it stands today is that simple breakdown of marriage is no ground of divorce under any personal laws of India. Under the Muslim law, however, a husband’s right to give a talaq to his wife is in recognition of breakdown theory. Likewise, a Muslim wife can claim divorce for consideration as matter of right and if the husband refuses she can approach the cour
Amit Minocha
(Expert) 19 February 2011
agree with Mr Tripathy
kiran
(Querist) 20 February 2011
Will the seperation of 5 years be a strong ground.
Kirti Kar Tripathi
(Expert) 20 February 2011
yes, it can be a ground. Desertion is one of the ground for divorce.
M V Gupta
(Expert) 20 February 2011
As can be seen from the decisions cited by expert Shri Kirtikar, irretrivable breakdown of the marriage is a question of fact. It has to factually established that the spouses could not stay together over a long period of time. Therefore u cannot file immediately another petition for divorce on the above ground.
SANJAY DIXIT
(Expert) 20 February 2011
"Irretrievable breakdown of marriage" -
No such ground is there till today in Hindu Marriage Act.
In my opinion as ur petition for div on the ground of cruelity is dismissed, U give a notice to ur spouse for restitution of conjugal rights within a prescribed period and on failing to do so file a petition for div on ground of desertion.
M V Gupta
(Expert) 21 February 2011
Yes. Irretrievable break doawn of marriage is not per se a prescribed ground for divorce as observed in V. Bhagats case sited by shri. Kirtikar. It is contributory fact for grant of divorce under any of the specified grounds in the Act.
