Supreme Court of India
VISHNU DUTT SHARMAversusMANJU SHARMA
- Citation
- 2009 INSC 288
- Decided
- 27 February 2009
- Disposal
- Dismissed
Holding
Irretrievable breakdown is not a ground for divorce under Section 13 of the Hindu Marriage Act, and courts cannot add such a ground.
Summary
The husband filed a petition for divorce under the Hindu Marriage Act, 1955, alleging cruelty by his wife. The trial court, and subsequently the High Court, found that the wife was the victim of cruelty and that the husband could not establish cruelty on her part. The husband also sought divorce on the ground of "irretrievable breakdown" of the marriage. The Supreme Court held that Section 13 of the Hindu Marriage Act does not list irretrievable breakdown as a ground for divorce and that the judiciary cannot add such a ground, as that is a legislative function. The Court noted that divorce by mutual consent under Section 13(8) could be granted only if both parties agree, which was not the case here. Consequently, the appeal was dismissed.
Issues considered
- Whether "irretrievable breakdown of marriage" is a statutory ground for divorce under Section 13 of the Hindu Marriage Act, 1955.
- Whether the courts can read in a new ground for divorce not provided by the legislature.
Legislation cited
- Hindu Marriage Act, 1955s. 13(1)(i-a), s. 13(8), s. 138
Subjects
divorcecrueltyirretrievable breakdownHindu Marriage Actstatutory interpretationjudicial overreachmutual consent divorce
Judgment
[2009] 3 S.C.R. 891
VISHNU DUTT SHARMA A
... v.
MANJU SHARMA
(Civil appeal No. 1330 of 2009)
FEBRUARY 27, 2009
B
[MARKANDEY KAT JU AND V.S. SIRPURKAR, JJ.]
Hindu Marriage Act, 1955:
s. 13(1 )(i-a) - Petition for divorce by husband alleging c
cruelty by wife - Dismissal by trial court as a/so by High Court
- Plea that divorce be granted on the ground of irretrievable
breakdown of marriage - HELD: No such ground is provided
by legislature for granting a decree of divorce - Supreme
Court cannot add such a ground to s. 13, as that would be D
amending the Act, which is a function of legislature - Cases
referred in this regard cannot be treated as precedent - In the
instant case, divorce by mutual consent in terms of s.13-8
cannot be granted as the wife is not willing to agree to a
divorce - Finding of fact of both the courts below that it was
E
the husband who treated his wife with cruelty rather than the
other way round not interfered with - Precedent.
CIVIL APPELLATE JURISDICTION : Civil Appeal No.1330
"' of 2009.
F
From the Judgment and Order dated 07.05.2007 of the
High Court of Delhi at New Delhi in F.A.O. No. 302 of 1996.
R.K. Chadha, Rajinder Mathur, Tarun Mathur for the
Petitioner.
G
D.S. Paweriya, Rani Chhabra for the Respondents.
The following Order of the Court was delivered :
891 H
892 SUPREME COURT REPORTS [2009) 3 S.C.R.
•
II""
A 1. Leave granted.
2. This Appeal has been filed against the judgment and ....
order dated 07th May, 2007 passed by the High Court of Delhi
in FAO No.302 of 1996 whereby the High Court has dismissed
the appeal filed by the husband-appellant.
B
3. Facts giving rise to this appeal are:
4. The marriage took place between the appellant and the
respondent on 26.02.1993 and a female child was born on
c 6.12.1993. In the petition filed by the appellant, it was alleged
that soon after the marriage the respondent was behaving in a
cruel manner derogatory to the appellant and the family
members; that the respondent avoided staying in the
matrimonial home and never remained there for more than 25
0 days together; and that after leaving the matrimonial home on
19.5.1993 while she was pregnant with the child, the
respondent never returned to live with the appellant. It was also
alleged that the father of the respondent is a retired Sub-
Inspector of the Delhi Police and brother is a Constable and
both used to extend threats to the appellant and his family
E
members that they would be implicated in false cases.
5. Respondent in her written statement stated that on
14.09.1994, the appellant and his family members gave her a
severe beating which led to her being medically examined by
F the doctors at Ram Manohar Lohia Hospital. A copy of the
extract of the MLC register on that date was enclosed to the
written statement. It was also stated that the appellant and his
mother had taken the jewellery of the respondent and given it
-
to the wife of the appellant's brother and on asking, respondent
G was again assaulted and sought to be burnt alive by the family
members of the appellant.
6. The trial Court after examining the evidence came to the
conclusion that no case of cruelty had been made out as alleged
H
VISHNU DUTI SHARMA v. MANJU SHARMA 893
/
·t by the appellant. The Trial Court held that considering that the A
respondent had been turned out of the matrimonial house and
had been given beatings for which she was medically
examined, it was the respondent who was treated cruelty by
the appellant.
B
7. Being aggrieved, the appellant preferred an appeal in
the High Court.
8. The High Court, by the impugned order, while
dismissing the appeal filed by the appellant-husband, observed
in paras 13 & 17 as under: c
"13 .... The respondent has categorically stated in her
examination-in-chief that the appellant and her in laws beat
her mercilessly on 14.09.1994 as a result of which she was
medically examined at the Ram Manohar Lohia Hospital, D
New Delhi on 15.09.1994. She has also withstood the
cross-examination on this aspect. On a reading of the
entire evidence, it is not possible to conclude that the
appellant has been able to establish that the respondent
treated him with cruelty.
E
17. In the instant case, the respondent wife has both before
• the trial Court and this Court been able to demonstrate that
far from treating the appellant with cruelty, she in fact
"" suffered cruelty at the hands of the appellant. To grant
divorce to the appellant despite this only on the ground of F
;,..
irretrievable breakdown would not, in the view of this Court,
be doing justice to the respondent."
9. We are not inclined to interfere with the finding of fact
of both the courts below that it was the appellant who treated G
the respondent with cruelty, rather than the other way around.
10. Learned counsel appearing for the appellant has
streneously argued that the marriage between the parties be
dissolved on the ground of irretrievable breakdown.
H
894 SUPREME COURT REPORTS [2009] 3 S.C.R.
...
A 11. In this connection it may be noted that in Section 13 of
the Hindu Marriage Act, 1955 (for short 'the Act') there are ,..
several grounds for granting divorce e.g. cruelty, adultery,
desertion etc. but no such ground of irretrievable breakdown of
the marriage has been mentioned for granting divorce. Section
B 13 of the Act reads as under:
"13.Divorce-(1) Any marriage solemnized, whether before
or after the commencement of this Act, may, on a petition
presented by either the husband or the wife, be dissolved
by a decree of divorce on the ground that the other party-
c
(i) has, after the solemnization of the marriage, had voluntary
sexual intercourse with any person other than his or her
spouse; or
D (i-a) has, after the solemnization of the marriage, treated
the petitioner with cruelty; or
(i-b) has deserted the petitioner for a continuous period of
not less than two years immediately preceding the
presentation of the petition; or
E
(ii) has ceased to be a Hindu by conversion to another
religion; or
(iii) has been incurably of unsound mind, or has been ...
F suffering continuously or intermittently from mental disorder
of such a kind and to such an extent that the petitioner
cannot reasonably be expected to live with the respondent
--
xx xx xx
G xx xx xx
(iv) has been suffering from a virulent and incurable form •
of leprosy; or
(v) has been suffering from venereal disease in a
H communicable form: or
VISHNU DUTI SHARMA v. MANJU SHARMA 895
_,.
f (vi) has renounced the world by entering any religious A
order; or
""'·
(vii) has not been heard of as being alive for a period of
seven years or more by those persons who would naturally have
heard of it, had that party been alive." B
12. 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 c
Act, which is a function of the legislature.
13. 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 D
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
E
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
F
submission of the learned counsel for the appellant.
14. Had both parties been willing we could, of course, have
granted a divorce by mutual consent as contemplated by
Section 138 of the Act, but in this case the respondent is not
willing to agree to a rjivorce. G
15. For the aforesaid reasons, this appeal is dismissed.
No order as to costs.
R.P. Appeal dismissed.
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "divorce"Sign in to search