Irretrievable Breakdown of Marriage III

Posted on by Rudrajyoti Nath Ray

Neeti Malviya, T.P. (C) No. 899 of 2007 was rendered infructuous.

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My Lord, Court can grant divorce in exercise of power under Article 142(1), in spite of opposition, when there is complete and irretrievable breakdown of marriage?

Yes.

There is a difference between existence of a power and exercising same. Court should not philosophise on modalities of married life. N.G. Dastane v. S. Dastane, (1975) 2 SCC 326 held, ‘satisfied’ must connote satisfaction on ‘preponderance of probabilities’ and not ‘beyond a reasonable doubt’.

Sivasankaran v. Santhimeenal, 2021 SCC OnLine SC 702 observed, there was no necessity of consent by both parties to dissolve a marriage on ground of irretrievable breakdown of marriage. It is not a matter of right. It is a discretion which is to be exercised with great care and caution [Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746].

However, in Poonam v. Sumit, (2010) 4 SCC 460 it was rightly held, parties should not be permitted to file a Writ Petition under Article 32 or under 226 and seek divorce on ground of irretrievable breakdown of marriage. We accept this view in Poonam.

 – Hon’ble Justice Sanjiv Khanna, Shilpa Sailesh v. Varun Sreenivasan, [Transfer Petition (Civil) No. 1118 of 2014].        

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