The Court indicated that unless there is cogent evidence of wilful desertion or refusal to cohabit, the marriage cannot be said to have “irretrievably broken down” for a divorce to be granted.
The Supreme Court recently clarified that a divorce cannot be granted, nor can a marriage be deemed “irretrievably broken,” merely because the spouses are living apart. Courts must first determine which spouse was responsible for the separation.
In its November 14 order, a Bench comprising Justice Surya Kant (now Chief Justice of India) and Justice Joymalya Bagchi noted that many courts have been too quick to treat simple separation as evidence that a marriage is beyond repair.
The Bench emphasized that before declaring a marriage irretrievable, courts must identify the true cause of the separation—whether one spouse intentionally deserted the other or whether unavoidable circumstances forced them to live apart.
“Courts, in recent times, often observe that since the parties are living separately, the marriage should be taken to have broken irretrievably. However, before jumping to such a conclusion, it is imperative upon the Family Court or the High Court to determine as to who out of the two is responsible for breaking the marital tie and forcing the other to live separately,” it said.
The Court ruled that a marriage cannot be deemed “irretrievably broken” for the purpose of granting a divorce unless there is clear proof that one spouse deliberately abandoned or refused to live with the other.
It further highlighted that this consideration is especially important when a child is involved.
“Unless there is cogent evidence for willful desertion or refusal to cohabit and/or look after the other spouse, the finding of marriage having been broken irretrievably is likely to have devastating effects, especially on the children. The arrival of such a conclusion puts the Courts under an onerous duty to deeply analyse the entire evidence on record, consider the social circumstances and the background of the parties, and various other factors,” the order said.
The Court made these observations in a case that originated in 2010, when a man initially filed for divorce citing cruelty but later withdrew his petition. In 2013, he filed a second petition, this time alleging that his wife had deserted him.
The trial court dismissed the petition in 2018, finding no evidence of desertion. However, in 2019, the Uttarakhand High Court overturned that decision and granted the divorce. The wife subsequently challenged this order in the Supreme Court.
The Supreme Court noted that the High Court had granted the divorce on the grounds of cruelty without thoroughly examining the key issues central to the case.
The Supreme Court criticised the High Court for relying solely on the husband’s account while disregarding the wife’s claim that she had been forced out of the matrimonial home and had been raising their child on her own.
The Bench also pointed out that the High Court overlooked crucial legal questions, such as whether the husband could file a second divorce petition on the same grounds after withdrawing the first, and whether the wife had suffered cruelty by being denied access to her home and not receiving child maintenance.
The Supreme Court further emphasized that in matrimonial disputes, courts have a serious duty to carefully evaluate all evidence, consider the social and family circumstances of both parties, and weigh every relevant factor before reaching a decision.
Consequently, the Supreme Court set aside the divorce decree and sent the case back to the High Court for fresh consideration.