Irretrievable Breakdown of a Marriage Ground for Divorce: Munish Kakkar v. Nidhi Kakker, 2014
A couple got married in the year 2000, but due to the massive conflicts between them, they were failing to reconcile their discrepancies therefore, they were living separately for nearly 19 years. Hence, the appellant (husband) filed a divorce case under Section 13 (1) (ia) of the Hindu Marriage Act, 1995. But the respondent (wife) disfavoured the divorce and refused to give consent for it, but the appellant pleaded that due to lack of co-habitation and support he was suffering from psychological and physical torture.
The Supreme Court held that though the respondent refrains from giving consent for divorce but through proceedings, it was witnessed that she is also reluctant to stay with the appellant because the separation has made the parties hostile against each other and no sign of affection or pleasant time in the past was witnessed instead the only resentment was arising from several court cases. The judge observed that this is the case of ‘irretrievable breakdown of a marriage’ which means the husband and wife cannot live together because the marriage between them is unworkable, emotionally dead and beyond salvage. According to Indian law, this cannot be the ground for divorce. But according to Article 142 of the Constitution of India, the Supreme Court has the jurisdiction to pass such decree or make such order as is necessary for doing complete justice. So, in this case, such extraordinary power was exercised because marriage was found a dead letter, unworkable and parties would be happier if they live separately hence, divorce was granted.
In conclusion, though ‘irretrievable breakdown of a marriage’ is not a ground for divorce under Hindu law still, the Supreme Court exercising the power under Article 142 of the Constitution of India, can grant a divorce if both the parties are unwilling to stay together, there is a dead marriage between them, angst against each other and there is no chance of again staying peacefully together.
Written By Ms. Charmy Gopani ,2nd Year Student, BBA LLB, Symbiosis Law School, Pune, Law Intern at S. Bhambri & Associates (Advocates), Delhi.