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The document discusses conflicting rulings from the Supreme Court on the concept of "irretrievable breakdown of marriage" as grounds for divorce. In 2006, a three-judge bench granted divorce on these grounds, but in 2010 a two-judge bench refused divorce citing that irretrievable breakdown is not included in law. The 2010 ruling disregarded the 2006 precedent and said irretrievable breakdown cannot be added without legislative amendment. However, the 2006 ruling discussed the need to include this ground to cover cases where marriages are "virtually dead". Smriti Shinde's petition provides an opportunity to resolve the confusion caused by the conflicting rulings.

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Gaurav Singh
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51 views1 page

New Delhi

The document discusses conflicting rulings from the Supreme Court on the concept of "irretrievable breakdown of marriage" as grounds for divorce. In 2006, a three-judge bench granted divorce on these grounds, but in 2010 a two-judge bench refused divorce citing that irretrievable breakdown is not included in law. The 2010 ruling disregarded the 2006 precedent and said irretrievable breakdown cannot be added without legislative amendment. However, the 2006 ruling discussed the need to include this ground to cover cases where marriages are "virtually dead". Smriti Shinde's petition provides an opportunity to resolve the confusion caused by the conflicting rulings.

Uploaded by

Gaurav Singh
Copyright
© Attribution Non-Commercial (BY-NC)
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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NEW DELHI: The deficiency in the divorce law highlighted by a petition filed by power

minister Sushilkumar Shinde’s daughter, Smriti Shinde, is aggravated by conflicting rulings from
the Supreme Court on the concept of ‘‘irretrievable breakdown of marriage’’.

Though such a ground for divorce is not mentioned in the Hindu Marriage Act or the secular
Special Marriage Act, a three-judge bench headed by Justice B N Agrawal granted divorce in
2006 in the Naveen Kohli vs Neelu Kohli case precisely because of irretrievable breakdown of
marriage. But early this year, a two-judge bench headed by Justice Markandey Katju refused to
grant divorce on that ground in the Vishnu Dutt Sharma vs Manju Sharma case despite the
precedent set by a larger bench.

Taking a conservative position, Justice Katju said that since the Hindu Marriage Act was silent
on irretrievable breakdown, the court could not ‘‘add such a ground to Section 13 of the act as
that would be amending the act, which is a function of the legislature’’.

The more controversial part of Katju’s ruling is the reason he gave for disregarding the 2006
precedent, which is normally binding upon his smaller bench. He made out that the 2006 verdict
did not form a precedent because it had failed to take into account the legal position that
Parliament had consciously excluded irretrievable breakdown as a ground for divorce.

‘‘A mere direction of the court without considering the legal position is not a precedent,’’ Justice
Katju said.

In reality, the judgment delivered by Justice Agrawal’s bench did discuss the lacuna in the
divorce law and it had even recommended to Parliament that irretrievable breakdown should be
included in the grounds for divorce because of ‘‘the change of circumstances and for covering a
large number of cases where the marriages are virtually dead’’.

If Justice Agrawal’s bench could still grant divorce on the grounds of irretrievable breakdown
even without legislative reaffirmation, it was because of an activist approach to render justice
within the given constraints of law. As the 2006 verdict put it, ‘‘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.’’

In the 2006 case, the wife had ‘‘resolved to live in agony only to make life a miserable hell’’ for
the husband. In a creative interpretation, the court treated the wife’s refusal to let go of the
husband despite the irretrievable breakdown as an instance of mental cruelty on her part.

‘‘This type of adamant and callous behaviour leaves no manner of doubt in our mind that the
respondent is bent upon treating the appellant with mental cruelty,’’ the court said, while
granting divorce on the ground of irretrievable breakdown.

Smriti Shinde’s petition provides an opportunity to dispel the confusion caused by Justice
Katju’s attempt to bypass the 2006 precedent.

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