The court may summon witnesses not cited or documents not produced by the parties. The expression “all the evidence” conveys the meaning that the totality of circumstances must be taken into account.
When marriage between parties has irretrievably broken, the fact that the wife has not withdrawn her consent within 18 months cannot be a reason for keeping the proceeding for grant of divorce by mutual consent pending. Divorce can be granted by a decree. Ashok Hura v. Rnpa Bipin Zaveri, AIR 1997 SC 1266.
In Iffath Jamalunnisa v. Mohd. Suleman Siddiqui, 2006 (1) ALD 131 (DB), for a decree of divorce, the parties lived separately for more than 20 years and conciliations failed. Bitterness between the parties continues; reunion is impossible as revealed from the circumstances, they indulged in continuous litigation and there is the additional fact of the case filed ft;’ restitution of conjugal rights by the husband being dismissed.
In all these circumstances, it was felt that there is irretrievable breakdown of marriage between the parties without any possibility of reunion. Both the children have become majors.
The impugned judgment has to be set aside for the reason of there being irretrievable breakdown of the marriage. A decree of divorce accordingly is granted dissolving the marriage between the appellant-wife and the respondent- husband. (Durga Prasanna Tripathy v. Arundhati Tripathy, AIR 2005 SC 3297: 2005 (1) Decisions Today (SC) 760, followed).
Where a divorce petition is dismissed in default and for non-prosecution, a second divorce petition on similar cause of action is barred under Order 9, Rule 9 CPC as CPC applies to Hindu Marriage Act by virtue of Section 21 of the Act. Malti v. Ramesh Kumar, 2006 (3) CCC 187 (Del).
Where the marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. A law of divorce based mainly on fault is inadequate to deal with a broken marriage.
It is recommended to the Union of India to seriously consider bringing an amendment to the Hindu Marriage Act, 1955, to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675: 2006 (2) CCC 26 (SC).
In Manjula v. K.R. Mahesh, AIR 2006 SC 2750, the Supreme Court has granted a decree of divorce after making appropriate provisions for the welfare of the child and held that we find that acceptedly the marriage has irretrievably broken down and there would be no point in making an effort to bring about conciliation between the parties. However, the welfare of the daughter is of paramount importance.
For claiming desertion without any reasonable cause, onus to prove a desertion as well as the animus deserendi is on the petitioner/appellant and is to be proved beyond reasonable doubt to the satisfaction of the court.
The parties claiming desertion are bound to prove that desertion was without just cause and further the parties have to establish (i) the factum of separation; (ii) the intention to bring cohabitation permanently to an end (animus deserendi); (iii) the absence of consent; and (iv) the absence of consent giving reasonable cause to the spouse leaving the matrimonial have to form the necessary intention aforesaid. Sukdev v. Santosh, AIR 1998 Raj. 12, 14.
If the facts and circumstances make it clear that there is no possibility of retrieving the marriage even at the appellate stage, the court can grant a decree of divorce under s. 13(1) (d) of the Act. Jayakrishna Panigrahi v. Surekha Panigrahi, AIR 1996 AP 19, 23.
Safeguards to Wife:
The proposed s. 13-D provides a safeguard for the wife, whenever an application is made by her husband seeking divorce on the ground of irretrievable breakdown of the marriage. The wife is entitled to oppose the decree on the ground that it would result in “grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage”.
Grave financial hardship by itself cannot be the sole ground for the wife to resist the decree as there are other provisions in the Act providing for maintenance for the wife if the divorce results in financial hardship to her. The present defence given to the wife is wider in scope.
She can successfully plead that having regard to her advanced age, social status, poor education and other factors it may not be possible for her to marry again. She might also plead that her grown-up daughters cannot get suitably married if she were to be divorced.
Care is taken by the proposed ss. 13-E and 28-C that no decree shall be granted on the ground of irretrievable failure of marriage unless adequate provision is made for the maintenance of children born out of the marriage.
The proposed amendment relating to divorce is consistent with modern notions of equality of sexes. At the same time it recognises the reality of the financial insecurity of the weaker sex. Necessary safeguards are provided for this purpose.