Not desirable to use irretrievable breakdown of marriage as a strait-jacket formula for divorce: SC

The Supreme Court said that it would not be desirable to accept the formula of "irretrievable breakdown of marriage" as a strait-jacket formula for the grant of relief of divorce under Article 142 of the Constitution. 

Despite increasing trend of filing divorce cases, marriage is still considered to be a pious, spiritual and invaluable emotional life-net between the husband and the wife in the Indian society, it added.

Holding that marriage is governed not only by the letters of law but by the social norms as well, the court declined a plea by a 89-year-old to grant him divorce on the ground of cruelty, desertion or irretrievable breakdown of marriage.

A bench of Justices Aniruddha Bose and Bela M Trivedi rejected an appeal by a retired Wing Commander to use the court's extraordinary power to do complete justice under Article 142 of the Constitution on the ground of "irretrievable breakdown of marriage”.

The man claimed the parties are living separately for many years but the wife opposed the plea, saying she does not want to die with the stigma of being a “divorcee” woman. 

The man, who first filed a divorce plea in 1996, claimed the wife did not take care of him since he was transferred to Madras in 1984. She also made complaints to the Air Force Authorities against him to malign his image, he said.

On the contrary, the 82-year-old wife claimed she took care of her three children since the marriage in 1963 and is still ready and willing to take care of her husband and does not wish to leave him alone at this stage of life.

The bench said there is no dispute that the parties are staying separate since last many years and all the efforts to bring them together have failed.

It said in such circumstances, one may presume that the marriage is emotionally dead and beyond salvation. 

However, the bench posed a question whether the irretrievable breakdown of marriage should necessarily result into a decree of divorce.

The bench said that this court can depart from the procedure as well as the substantive laws, and exercise its discretion under Article 142 for dissolving the marriage between the parties, in view of the Constitution Bench decision in the case of Shilpa Shailesh vs Varun Sreenivasan (2023).

Such a divorce can be granted even though one of the spouses may oppose it.

"However, in our opinion, one should not be oblivious to the fact that the institution of marriage occupies an important place and plays an important role in the society," the bench said.

"So many other relationships stem from and thrive on the matrimonial relationships in the society. Therefore, it would not be desirable to accept the formula of 'irretrievable breakdown of marriage' as a strait-jacket formula for the grant of relief of divorce under Article 142," the bench added.

The bench concluded, while considering and respecting the sentiments of the wife, exercising the discretion in favour of the man would rather be doing injustice to her.