Spouses living separately not ground for divorce, courts must identify who broke the marriage: Supreme Court

The Supreme Court recently observed that courts must not presume that a marriage has "irretrievably broken down" or grant a divorce on that ground merely because the spouses are living separately, without first determining who was responsible for the separation.

In a November 14 order, a Bench of Justice Surya Kant (now Chief Justice of India) and Justice Joymalya Bagchi took critical note that there has been a trend where courts jump to conclusions about a marriage having irretrievably broken down only because the spouses live separately.

The Bench said that before concluding that a marriage is beyond repair, courts must carefully examine whether one party had willfully deserted the other or was compelled to live separately due to circumstances beyond their control.

"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 indicated that unless there is cogent evidence of wilful desertion or refusal to cohabit, a marriage cannot be said to have "irretrievably broken down" for a divorce to be granted.

The Court added that this question assumes special importance 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 the remark in a case which began with a man filing a divorce suit in 2010 on grounds of cruelty, which he later withdrew. In 2013, he filed a second petition claiming 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 reversed that trial court decision and granted him a decree of divorce. The wife then moved the top court.

The Supreme Court noted that the High Court had failed to address key issues before dissolving the marriage on grounds of cruelty.

It faulted the High Court for accepting the oral narratives of the husband but ignoring the wife’s claim that she was forced out of her matrimonial home and had since raised their child alone.

The Bench also pointed out that the High Court had ignored several legal questions that had a direct bearing on the case, including whether the withdrawal of an earlier divorce petition filed on similar grounds could bar the husband from filing a second petition on the same cause of action, and whether the wife had suffered cruelty by being denied access to her matrimonial home and maintenance for the child.

The top court held that courts are 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 before reaching a conclusion in matrimonial cases.

It proceeded to set aside the order granting divorce and sent the matter back to the High Court for fresh consideration.

[Read Order]