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Is ‘Irretrievable Brake-down of Marriage’, a Valid Ground for Divorce in India?

Created: 07 Jul 2024 at 23:29

Saji Koduvath, Advocate, Kottayam.

Introduction

Though ‘irretrievable brake-down of marriage’ is a ground for divorce in various other jurisdictions, it is not a ground in Hindu/Indian law. When a foreign court granted a decree of divorce on the ground of ‘irretrievable brake-down of marriage’, will it be accepted in India as a valid verdict?

The answer is No.

Section 13 of the CPC as interpreted by the Supreme Court in Y. Narasimharao v. Y. Venkata Lakshmi,  1991- 3 SCC 451, is to be looked into to see the law on this matter.

Section 13 of the CPC as interpreted by the Supreme Court

Section 13 of the CPC is an enabling provision that allows to accept a foreign decree passed by a ‘court of competent jurisdiction’. The general law is that the matrimonial reliefs are granted on a ground available under the matrimonial law under which the marriage of the parties was conducted. Section 13 of the CPC permits to accept a ‘foreign decree’ as valid, if –

  • (a) it has been pronounced by a court of competent jurisdiction;
  • (b) it has been given on the merits of the case;
  • (c) it is founded on correct view of law;
  • (d) the proceedings are not opposed to natural justice;
  • (e) it is not obtained by fraud; and
  • (f) it sustains a claim founded not on a breach of any law in force in India.

What is ‘court of competent jurisdiction’ stated in Sec. 13 is not made clear in the CPC. The Supreme Court, in Y. Narasimharao v. Y. Venkata Lakshmi,  1991- 3 SCC 451, “interpreted” ‘court of competent jurisdiction’, and carved out, for the first time, three exceptions to the strict general law that the matrimonial reliefs are granted only on grounds available under the matrimonial law under which the marriage of the parties was taken place. The three exceptions given in Y. Narasimharao v. Y. Venkata Lakshmi can be stated as under-

  • A foreign decree is valid, and a foreign court will be taken as a ‘court of competent jurisdiction’, if-
    • (i) the matrimonial (a) action is filed in the forum where the respondent resides and (b) relief is granted on a ground available in the matrimonial law under which the parties are married; or
    • (ii) both parties (a) voluntarily and unconditionally subjected themselves to the jurisdiction of that court and (b) contests the claim which is based on a ground available under the matrimonial law; or
    • (iii) the respondent consents to the grant of the relief. 

Therefore, unless the respondent consents to divorce by a foreign court, (for a valid decree) it should necessarily be based on a ground available under the matrimonial law under which the marriage of the parties was taken place.

In other words, if the foreign decree on a matrimonial relief has been passed on consent of the respondent, it will be taken as valid (even if it is not based on a ground available under the matrimonial law under which the marriage of the parties was taken place).

Read Blog: Validity of Foreign Divorce Decrees in India

Irretrievable Brake-Down of Marriage NOT a Ground in Hindu/Indian law

As shown above, irretrievable brake-down of marriage is not a ground in Hindu/Indian law. In several cases (in which foreign matrimonial decrees were considered) it was enquired-

  • (i) whether the relief was granted by the foreign court on a ‘ground available in the matrimonial law under which the parties are married’ as held in Y. Narasimharao v. Y. Venkata Lakshmi, 1991-3 SCC 451 and
  • (ii) whether irretrievable brake-down of marriage (a ground in various other jurisdictions), by itself, was a ground in our law.

The following are some of those cases-

  • Arunima Naveen Takiar v. Naveen Takiar, RCR(Civil) 2019-1 907,  2019-2 AIR BomR 271, 2019-1 DMC 660,
  • Dinesh Singh Thakur v. Sonal Thakur, AIR 2018 SC 2094;
  • Shilpa Sachdev v. Anand Sachdev, 2017-5 AIR BomR 607,
  • Rupak Rathi v. Anita Chaudhary, 2014 AIR(CC)  2231, 2014-2 RCR(Civil) 697,
  • Harpreet Singh Sekhon v. Rajwant Kaur, ILR (2014) 1 P&H 876,
  • Pritam Ashok Sadaphule v. …., AIR 2013 Del 139,
  • Dorothy Thomas v. Rex Arul,  2011-6 Mad LJ 475, 2012-1 RCR(Civil) 451.

In G. N.  Subramanya Upadhyaya v. Soumya M.  Hegde, 2017-4 SCALE 519, it is pointed out that merely because of the irretrievable brake-down of marriage, divorce cannot be granted. In K. Srinivas Rao v. D. A.  Deepa, AIR  2013 SC 2176, it is observed as under:

  • Irretrievable brake-down of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable brake-down of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court’s decree.

In Poonam v. Surender Kumar, 2021-4 RCR (Civil) 528: 2021-4 Civ CC 427,  a decree of divorce dissolving the marriage between the parties was passed by the Apex Court, on the ground of irretrievable brake-down of marriage, in exercise of powers under Sec. 142 of the Constitution of India, in the following set of facts:

  • “On the plea of the learned counsel for the appellant, on instructions, the limited question is whether this is a fit case for grant of divorce on account of irretrievable brake-down of marriage, since even the mutual consent divorce is not acceptable to the respondent. If we look to the facts of the case as set out aforesaid, there is little doubt, and even for that matter the respondent who appeared before us could not dispute, that the marriage did not take off from the very beginning. The marriage took place on 9/6/2002 and on 29/6/2002, the case was registered under Sec. 498-A read with Sec. 406, IPC alleging that the appellant was not being permitted to enter the house on account of her inability to satisfy the dowry demands. The divorce petition was filed on 9/9/2003. If The parties have not been able to subserve the very objective of marriage of companionship for each other from the very inception and have been living apart for more than 19 years, we are of the view that if this is not an irretrievable brake-down of marriage then what would be the situation of that kind!”

Read in this Cluster  (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Divorce

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

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