Whether wife is entitled to get divorce from husband on the ground of mental cruelty if he publish allegations against her in Newspaper and prosecute her relatives?

 In our considered view, a partner in matrimonial relationship who goes to the extent of filing police complaints against mother, friend, well wishers, Prosecutor or Advocate of his own wife, is a kind of person who is difficult to deal with and certainly causing mental harassment. {Para 31}

32. Original copy of newspaper Dainik Divya Marathi dated 13.07.2014 is at Exh. 279, in which alleged defamatory news about Respondent/Wife was published at the instance of Appellant/husband. Whether the actual news is defamatory or not is irrelevant for the present purpose. The fact that allegations and accusations are leveled by a party (husband in this case) against the spouse (wife) in newspaper, itself has an effect of lowering her reputation in the eyes of her peers and colleagues. Embarrassment is a bitter bonus ! Learned counsel for the Respondent/wife has submitted that because of news published by the Appellant/husband, the reputation of the Respondent/wife got damaged and she was embarrassed before her peers, colleagues and co-workers. Judgments of Hon'ble Supreme Court in the matter of Raj Talreja vs. Kavita Talreja MANU/SC/0493/2017 : (2017) 14 SCC 194 and K. Shrinivas Rao vs. D.A. Deepa MANU/SC/0180/2013 : (2013) 5 SCC 226, both arising out of matrimonial disputes, are relied upon in support of this case. We fully agree with the submission. The proposition of law laid down in the said cases apply to the fact of this case.

 IN THE HIGH COURT OF BOMBAY

Family Court Appeal No. 36 of 2021, 

Decided On: 24.03.2023

Uday  Vs. Rupali 

Hon'ble Judges/Coram:

R.D. Dhanuka and M.M. Sathaye, JJ.

Author: M.M. Sathaye, J.

Citation: MANU/MH/1142/2023.

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Supreme Court Constitution Bench Judgment on irretrievable breakdown of marriage

 Having said so, we wish to clearly state 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. For this, several factors are to be considered such as the period of time the parties had cohabited after marriage; when the parties had last cohabited; the nature of allegations made by the parties against each other and their family members; the orders passed in the legal proceedings from time to time, cumulative impact on the personal relationship; whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and when the last attempt was made, etc. The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor. But these facts have to be evaluated keeping in view the economic and social status of the parties, including their educational qualifications, whether the parties have any children, their age, educational qualification, and whether the other spouse and children are dependent, in which event how and in what manner the party seeking divorce intends to take care and provide for the spouse or the children. Question of custody and welfare of minor children, provision for fair and adequate alimony for the wife, and economic rights of the children and other pending matters, if any, are relevant considerations. We would not like to codify the factors so as to curtail exercise of jurisdiction Under Article 142(1) of the Constitution of India, which is situation specific. Some of the factors mentioned can be taken as illustrative, and worthy of consideration.{Para 33}

(iii) Whether this Court can grant divorce in exercise of power Under Article 142(1) of the Constitution of India when there is complete and irretrievable breakdown of marriage in spite of the other spouses opposing the prayer?

This question is also answered in the affirmative, inter alia, holding that this Court, in exercise of power Under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do 'complete justice' to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. The Court, as a court of equity, is required to also balance the circumstances and the background in which the party opposing the dissolution is placed.

IN THE SUPREME COURT OF INDIA

Transfer Petition (Civil) No. 1118 of 2014, 

Decided On: 01.05.2023

Shilpa Sailesh Vs. Varun Sreenivasan

Hon'ble Judges/Coram:

Sanjay Kishan Kaul, Sanjiv Khanna, Abhay Shreeniwas Oka, Vikram Nath and J.K. Maheshwari, JJ.

Author: Sanjiv Khanna, J.

Citation: : MANU/SC/0502/2023,

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Supreme Court guidelines for ascertaining mental cruelty in matrimonial relations

 No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behavior which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty. {Para 74}

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 151 of 2004

Decided On: 26.03.2007

Samar Ghosh Vs. Jaya Ghosh

Hon'ble Judges/Coram:

B.N. Agrawal, P.P. Naolekar and Dalveer Bhandari, JJ.

Author: Dalveer Bhandari, J.

Citation: ( 2007 ) 4 SCC 511, MANU/SC/1386/2007.

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Supreme Court: Irretrievably Broken Down Marriage Can Be Dissolved On Ground Of 'Cruelty'

When we take into consideration the facts as they exist today, we are convinced that continuation of this marriage would mean continuation of cruelty, which each now inflicts on the other. Irretrievable breakdown of a marriage may not be a ground for dissolution of marriage, under the Hindu Marriage Act, but cruelty is. A marriage can be dissolved by a decree of divorce, inter alia, on the ground when the other party "has, after the solemnization of the marriage treated the Petitioner with cruelty"1. In our considered opinion, a marital relationship which has only become more bitter and acrimonious over the years, does nothing but inflicts cruelty on both the sides. To keep the facade of this broken marriage alive would be doing injustice to both the parties. A marriage which has broken down irretrievably, in our opinion spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. It is therefore a ground for dissolution of marriage Under Section 13(1) (ia) of the Act.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2012 of 2013

Decided On: 26.04.2023

Rakesh Raman Vs. Kavita

Hon'ble Judges/Coram:

Sudhanshu Dhulia and J.B. Pardiwala, JJ.

Author: Sudhanshu Dhulia, J.

Citation: MANU/SC/0456/2023,AIR 2023 SC 2144, 2023/INSC/433

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Notes on divorce on the ground of irretrievable breakdown of marriage

 Under the Hindu Marriage Act, 1955, the concept of irretrievable breakdown of marriage is not explicitly recognized as a ground for divorce. The Act provides specific grounds for divorce, such as cruelty, adultery, desertion, conversion to another religion, mental disorder, and incurable diseases. However, irretrievable breakdown of marriage is not mentioned as a standalone ground for divorce under this Act.

The concept of irretrievable breakdown of marriage refers to a situation where the marriage has broken down irreparably, and there is no possibility of reconciliation between the spouses. It is a subjective assessment of the state of the marriage, indicating that the relationship has reached a point of no return.

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Leading Supreme Court Judgment on Divorce on ground of Irretrievable Breakdown of Marriage

Irretrievable Breakdown of Marriage

61. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into services, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955.

62. The 71st Report of the Law Commission of India briefly dealt with the concept of Irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. We deem it appropriate to recapitulate the recommendation extensively. In this Report, it is mentioned that during last 20 years or so, and now it would around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, namely, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory.

63. In the Report, it is mentioned that the germ of the breakdown theory, so far as Commonwealth countries are concerned, may be found in the legislative and judicial developments during a much earlier period. The (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920, included for the first time the provision that a separation agreement for three years or more was a ground for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce or not. The discretion conferred by this statute was exercised in a case in New Zealand reported in 1921. Salmond J., in a passage which has now become classic, enunciated the breakdown principle in these word:

The Legislature must, I think, be taken to have intended that separation for three years is to be accepted by this Court, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the contrary, cease to exist de jure also. In general, it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further continuance is in general not merely useless but mischievous.

64. In the Report it is mentioned that restricting the ground of divorce to a particular offence or matrimonial disability, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a fagade, when the emotional and other bounds which are of the essence of marriage have disappeared.

65. It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfillment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances.

66. On May 22, 1969, the General Assembly of the Church of Scotland accepted the Report of their Moral and Social Welfare Board, which suggested the substitution of breakdown in place of matrimonial offences. It would be of interest to quote what they said in their basis proposals:

Matrimonial offences are often the outcome rather than the cause of the deteriorating marriage. An accusatorial principle of divorce tends to encourage matrimonial offences, increase bitterness and widen the rift that is already there. Separation for a continuous period of at least two years consequent upon a decision of at least one of the parties not to live with the other should act as the sole evidence of marriage breakdown.

Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.

67. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented concrete instances of human behavior as bring the institution of marriage into disrepute.

68. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases do not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.

69. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.

70. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.

71. Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved.

72. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 812 of 2004

Decided On: 21.03.2006

Naveen Kohli Vs. Neelu Kohli

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What is fault theory and breakdown theory of divorce?

 The 71^st Report of the Law Commission of India briefly dealt with the concept of irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. In this Report, it is mentioned that during last 20 years or so, and now it would be around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory. It would be relevant to recapitulate recommendation of the said Report.

67. In the Report, it is mentioned that the germ of the breakdown theory, so far as Commonwealth countries are concerned, may be found in the legislative and judicial developments during a much earlier period. The (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920, included for the first time the provision that a separation agreement for three years or more was a ground for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce or not. The discretion conferred by this statute was exercised in a case Lodder v.Ladder 1921 NZLR 786. Salmond J., in a passage which has now become classic, enunciated the breakdown principle in these words:

The Legislature must, I think, be taken to have intended that separation for three years is to be accepted by this Court, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the contrary, cease to exist de jure also. In general, it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further continuance is in general not merely useless but mischievous.

68. In the said Report, it is mentioned that restricting the ground of divorce to a particular offence or matrimonial disability, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet such a situation has arisen in which the marriage cannot survive. The marriage has all the external appearances of marriage, but none in reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a facade, when the emotional and other bonds which are of the essence of marriage have disappeared.

69. It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfilment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances.

70. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.

Law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented concrete instances of human behavior as bring the institution of marriage into disrepute.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 151 of 2004

Decided On: 26.03.2007

Samar Ghosh Vs. Jaya Ghosh

Hon'ble Judges/Coram:

B.N. Agrawal, P.P. Naolekar and Dalveer Bhandari, JJ.

Citation:(2007) 4 SCC 511
Read full Judgment here :Click here

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Whether Backing out of Mutual Consent in Divorce petition amounts to Mental Cruelty?

 Thus, we are of the considered opinion that there is no merit in
this appeal, primarily, on two counts viz firstly, the unilateral
withdrawal of consent by the appellant which rather lead to an
anomalous situation where the respondent wife, a law-abiding lady,
adhering to the terms and conditions of settlement, dated May 24,
2014 was left high and dry with a dead marriage and whereas the
appellant husband kept on enjoying his freedom without paying any
maintenance, alimony etc. and; secondly, the apology letter Mark A
which rather proves the contentions of the respondent that the
appellant used to beat her; did not allow her to visit her home; cast
aspersions upon her character; snatched her salary; took money from
her father, which he did not return and rather asked for dowry, thus
committed cruelty upon her. We agree with the learned Judge, Family
court, Dwarka, on both these counts. The allowing of complaint case
No.1007/1/2015 further confirms the case of the respondent.
23. Here we would like to refer to (2007) 4 SCC 511 Samar Ghosh
vs. Jaya Ghosh wherein it was held that there can never be any
straight jacket formula or fixed parameters for determining the mental
cruelty in matrimonial matters. If on consideration of complete
matrimonial life of the parties, actual mental pain, agony and
suffering as would not make possible for the parties to live with each
other would come within the broad parameter of mental cruelty. It
was further held that where there has been a long period of continuous
separation, it may fairly be concluded that the matrimonial bond is
beyond repair. The marriage rather becomes a fiction though
supported by a legal tie. By refusing to sever that tie, the law in such
cases, does not serve the sanctity of marriage; on the contrary, it
shows scant regard for the feelings and emotions of the parties. In
such like situations, it may lead to mental cruelty.
 IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Delivered On : December 08, 2016
MAT.APP.(F.C.) No.163/2016

RAJIV CHHIKARA Vs  SANDHYA MATHUR 

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE YOGESH KHANNA

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Whether court can give divorce on ground of irretrievable breakdown of marriage?

 In a recent judgment authored by us on October 21, 2016
MAT.APP.(F.C.) 36/2014 Sandhya Kumari vs. Manish Kumar we had
noted that though irretrievable breakdown of marriage is not a ground for
divorce, but in the judgments reported as 2006 (2) Mh.L.J.307 Madhvi
Ramesh Dudani vs. Ramesh K.Dudani, 2007 (4) KHC 807 Shrikumar vs.
Unnithan vs.Manju K.Nair, (1994) 1 SCC 337 V.Bhagat vs. D.Bhagat and
(2006) 4 SCC 558 Navin Kohli vs. Neelu Kohli the concept of cruelty has 
been blended by the Courts with irretrievable breakdown of marriage. The
ratio of law which emerges from said decisions is that where there is
evidence that the husband and wife indulge in mutual bickering, leading to
remonstration and therefrom to the stage where they target each other
mentally, insistence by one to retain the matrimonial bond would be a
relevant factor to decide on the issue of cruelty, for the reason the obvious
intention of said spouse would be to continue with the marriage not to
enjoy the bliss thereof but to torment and traumatize the other.
48. The marriage solemnized on December 06, 2008 resulted in the
couple separating on May 26, 2009. It lasted only for five months and
twenty one days, with the two sharing each other’s company for
approximately sixty days. Even these days were spent in turbulence. We
only wish that the astrologer who matched the horoscope was not a novice.
49. Accordingly we allow the appeal dissolving the marriage between
Anurag and Manushi solemnized on December 06, 2008 by passing a
decree of divorce.
 IN THE HIGH COURT OF DELHI AT NEW DELHI

 Judgment Delivered On : November 10, 2016
MAT.APP.(F.C.) 94/2014
ANURAG SHARMA
v
MANUSHI SHARMA .
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI

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Whether mere direction of Court without considering legal position is a precedent?

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.

Supreme Court of India

Vishnu Dutt Sharma vs Manju Sharma on 27 February, 2009

Bench: Markandey Katju, V.S. Sirpurkar

Citation; 2010(1) MHLJ 290 SC

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Whether court can grant divorce on ground of irretrievable breakdown of marriage?

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.

Supreme Court of India

Vishnu Dutt Sharma vs Manju Sharma on 27 February, 2009

Bench: Markandey Katju, V.S. Sirpurkar

Citation; 2010(1) MHLJ 290 SC

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Supreme Court: Spouse can cause mental cruelty by his or her conduct even though they are not residing jointly

 In our opinion, the High Court wrongly held that because the appellant-husband and the respondent-wife did not stay together there is no question of the parties causing cruelty to each other. Staying together under the same roof is not a pre-condition for mental cruelty. Spouse can cause mental cruelty by his or her conduct even while he or she is not staying under the same roof. In a given case, while staying away, a spouse can cause mental cruelty to the other spouse by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating number of judicial proceedings making the other spouse’s life miserable. This is what has happened in this case.

Supreme Court of India

K. Srinivas Rao vs D.A. Deepa on 22 February, 2013

Bench: Aftab Alam, Ranjana Prakash Desai

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