While leaving not even an iota of doubt to linger in the mind of anyone and drawing the clear red lines for the Family Courts on the most vital question of its power to grant divorce on the ground of breakdown of marriage, the Delhi High Court in one of the most learned, laudable, logical, landmark and latest judgment titled D v. A in MAT. APP (F.C.) 290-291/2018 that was pronounced as recently as on September 19, 2023 has minced just no words to say in no uncertain terms that Family Courts cannot grant divorce on the ground of there being an irretrievable breakdown of marriage. It must be noted that the Division Bench of Hon’ble Mr Justice Sanjeev Sachdeva and Hon’ble Mr Justice Vikas Mahajan while setting aside a Family Court judgment granting divorce on such a ground among other grounds underscored that an irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act. The Bench also hastened to add that:
Such a power is not vested in the High Courts leave alone the Family Courts. In addition, the Delhi High Court made it absolutely clear that the power to grant divorce on the ground of irretrievable breakdown of marriage can be exercised only by the Supreme Court under Article 142 of the Constitution. No denying it!

MAT. APP (F.C.) 290/2018

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Sanjeev Sachdeva for a Division Bench of Delhi High Court comprising of himself and Hon’ble Mr Justice Vikas Mahajan sets the ball in motion by first and foremost putting forth aptly in para 1 that:
Appellant/wife impugns common order and judgement dated 18.09.2018 passed by the Family Court, Dwarka, New Delhi whereby the Petition filed by the Respondent/husband under section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) seeking divorce on the ground of cruelty and desertion has been allowed and the Counter Claim filed by the Appellant seeking restitution of conjugal rights has been dismissed.

As we see, the Division Bench then discloses in para 2 that:
Parties were married on 17.02.2002 according to Hindu rites and customs and were blessed with a daughter, born on 07.01.2007. As per the Respondent they have been living separately since January 2007 and as per the Appellant since May 2007.

To put things in perspective, the Division Bench then envisages in para 3 observing that:
Respondent had filed the Petition seeking divorce on 26.05.2011 alleging that the Appellant used to exert pressure upon him to separate himself from his family members and live at the parental home of the Appellant. She is also alleged to have neglected the presence of other members in his family and would not even wish any guests and elders in the family. It is alleged that she used to misbehave with him and her behaviour towards his family members was disrespectful. He alleged that she used to stay at her parents’ house on one pretext or the other. She would not do the household chores.

Further, the Division Bench lays bare in para 4 that:
The Respondent also alleged that from the very first day of marriage, Appellant created scenes at night hours and most of the times did not allow him to enjoy his conjugal rights. She refused him to have access to her and inflicted cruelty upon him. He further alleged that he was allowed by the Appellant only 30-35 times (approximately) to enjoy conjugal relations since their marriage.

Furthermore, the Division Bench then mentions in para 5 that:
He also alleged that 20 days after the birth of the daughter, the Appellant left with her father for her parental house and has not returned to her matrimonial home despite repeated requests and visits by the Respondent.

As it turned out, the Division Bench reveals in para 6 that:
The family court after considering the evidence led by the parties held that it clearly reflected that the Appellant/wife was interested to stay with her husband at the matrimonial house but it was the Respondent/husband who was not interested to keep his wife along with him. The Family Court has also referred to the statement of the father of the Respondent/husband that his son was not ready to reside with the Appellant. The Family Court thus held that the Respondent/husband had failed to establish the ground of Desertion.

Do note, the Division Bench notes in para 7 that:
In respect of the ground of cruelty, the Family Court has held that there was no normal and healthy sexual relationships between (Respondent) and his wife (Appellant) and same has resulted in striking at the very foundation of their marriage. It has been well settled that normal and healthy sexual relationships between both spouse is one of the basic ingredients for happy and harmonious marriage as the marriage without sex is an anathema. Sex is foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue.

To be sure, the Division Bench points out in para 8 that:
The Family Court after holding that there was denial of conjugal relations, noticed that parties had been living separately for more than 11 years and held that the marriage had broken down beyond repair and thus held that the Respondent had successfully established cruelty and thus granted a decree of divorce against the Appellant.

Be it noted, the Division Bench notes in para 13 that:
Divorce has been granted primarily on the ground that there was denial of conjugal relationship by the Appellant/wife and that since they have been living separately for 11 years marriage has broken down irreparably.

It is worth noting that the Division Bench notes in para 23 that:
Coming to the theory of breakdown of marriage. First of all that is not a ground for grant of divorce under the Act. Secondly, Appellant is clearly not at fault and it is the respondent who is at fault. Thirdly, as held by the Supreme Court in Chetan Dass (supra) respondent should not be allowed to take advantage of his own wrong. He is the one who is found to have deserted his wife and then taken the plea of desertion on her part. He cannot be permitted to walk out of the matrimonial alliance on the ground that the marriage has broken down.

Most notably, the Division Bench mandates in para 25 holding that:
In terms of the Judgment of the Constitution Bench of the Supreme Court in Shilpa Sailesh (supra), 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 the parties. Such a power is not vested in the High Courts leave alone the Family Courts.

Most forthrightly, the Division Bench then goes on to hold in para 26 that:
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 ground of breakdown of marriage. 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.

Most remarkably, the Division Bench expounds in para 27 stating that:
Even the Supreme Court while considering exercise of discretionary powers under Article 142 of the Constitution of India takes into account several factors and longevity of period is only one of them. Reference may be had to Para 41 of Shilpa Sailesh (supra) extracted hereinabove. Supreme Court has placed a word of caution that grant of divorce on the ground of irretrievable breakdown of marriage by this Court is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that ‘complete justice’ is done to both parties. It is obvious that this Court should be fully convinced and satisfied that the marriage is totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage is the right solution and the only way forward. That the marriage has irretrievably broken down is to be factually determined and firmly established.

Needless to say, the Division Bench then holds in para 28 that:
In the present case, the Family Court has erred in travelling beyond the scope of its powers to grant divorce.

As a corollary, the Division Bench then directs in para 29 that:
In view of the above, the impugned judgment dated 18.09.2018 granting divorce on the ground of cruelty and breakdown of marriage is not sustainable and is accordingly set aside. The Divorce Petition filed by the Respondent is dismissed. MAT APP. (F.C.) No. 290/2018 is allowed.

MAT. APP (F.C.) 291/2018

For clarity, the Division Bench clarifies in para 30 that:
Learned counsel for the Appellant submits in view of the judgment of the Supreme Court in Dharmendra Kumar versus Usha Kumar (1977) 4 SCC 12, wherein the Supreme Court has held that the expression the petitioner is not, in any way, taking advantage of his or her own wrong occurring in Section 23 (1)(a) of the Act does not apply to taking advantage of the statutory right to obtain dissolution of marriage which has been conferred by Section 13(1A) of the Act, Appellant does not wish to press the appeal (MAT APP. (F.C.) No. 291/2018) challenging the decree dismissing her petition for restitution of conjugal rights.

Resultantly, the Bench directs in para 31 that:
In view of the above, the Appeal is dismissed as not pressed.

All in all, the Delhi High Court has made it abundantly clear that not only the Family Courts but even the High Courts cannot grant divorce on the ground of irretrievable breakdown of marriage. It was also made clear by the Division Bench of Delhi High Court that this power can be exercised only by the Apex Court under Article 142 of the Constitution. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh