Divorce on irritravable break down

969 votes

The husband’s earlier petition having been dismissed on merits does not create a bar against filing a fresh petition for divorce, provided the new petition is based on fresh cause of action or substantially different grounds. However, it is pertinent to note that irretrievable breakdown of marriage is not a statutory ground for divorce under Section 13 of the Hindu Marriage Act, 1955. The said ground has, however, been recognized by the Hon’ble Supreme Court of India in exercise of its powers under Article 142 of the Constitution, where the Court, to do complete justice between the parties, has granted divorce in cases where the marriage is found to be dead and there is no possibility of reunion. (Refer: R. Srinivas Kumar v. R. Shametha, (2019) 9 SCC 409; R. v. S., (2023) SCC OnLine SC 275). Accordingly, the Family Court or the High Court cannot grant divorce solely on the ground of irretrievable breakdown, though prolonged separation and complete failure of matrimonial relationship may be considered as a circumstance constituting mental cruelty within the meaning of Section 13(1)(ia) of the Act. My Conclusion:- While the husband cannot rely solely upon the ground of irretrievable breakdown before the Family Court, he may file a fresh petition based on long separation and mental cruelty or approach the Hon’ble Supreme Court under Article 142. If the separation period exceeds six to seven years, the prospects of obtaining dissolution on this basis are reasonably strong.

Advocate Ashwin Garg LawRato

835 votes

Yes, he can file again citing irretrievable breakdown of marriage. Though not a statutory ground, the Supreme Court under Article 142 grants divorce where marriage is beyond repair. Long separation (3–5 years) and no chance of reunion improve success chances.

Advocate Adarsh Kumar LawRato

860 votes

Hi there, in order to file for an irretrievable breakdown of marriage as a ground for divorce minimum separation time should be 6 years. Post separation of 6 years you can file for divorce in the Supreme Court. If you have any questions feel free to contact me.

Advocate Ishan Parashar LawRato

648 votes

See it depends on the circumstances and facts of the case. As divorce on the ground of irretrievable breakdown is a prerogative of the Apex Court so without having going through the facts of your case thoroughly.

Advocate Harshit R Gupta LawRato

603 votes

Hi, yes husband has all the right to file divorce against you, point is if he filed on the same grounds again it can be declared void by the Hon'ble court of India. However, to safeguard yourself there are some important steps which you should definitely take. Further, we can discuss on call.

Advocate Vishali Verma LawRato