Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act unless there are exceptional circumstances.

( 1 ) THE matrimonial suit was filed by the appellant against the respondent under section10 read with section 13 of the Hindu Marriage Act, 1955 principally on the ground of desertion.

( 2 ) THE learned judge of the Court below on appreciation of evidence held that although the wife being the respondent herein deserted the husband the appellant above named, there has been cogent reason for the same and hence the suit was dismissed by him. The Court below hold that the husband has not been able to prove that he has been treated with cruelty by wife.

( 3 ) BEING aggrieved by the judgment and decree of the dismissal of the Court below the husband preferred the above appeal.

( 4 ) MR. Bidyut Banerjee, appearing for the appellant has strenuously contended that since the desertion has been proved and since the wife being the respondent herein has categorically stated in her evidence that she would not come back to her husband's place there has been irretrievable breakdown of the marriage. Hence, the appellant is entitled to a decree for divorce. In support of his contention Mr. Banerjee has cited Division Bench judgments of this Court reported in 1996 WBLR, Calcutta, Page 30. Relevant paragraph cited by Sri Banerjee is quoted below :-"further, the basic postulate of break down theory is that when a marriage has broken down without any possibility or chance to repair the same, then it should be dissolved without looking to the fault of the party. There the parties are not willing to return to the marital life where the cohabitation has come to its permanent end. The above theory since alien to the matrimonial laws is no ground to refuse relief. "

( 5 ) MR. Banerjee also cited Division Bench judgment reported in 1996 WBLR (Calcutta) Page 39 wherein the Division Bench has held that the ground of irretrievable break down of matrimonial home can be taken recourse to only in exceptional case.

( 6 ) BOTH the said judgment have been delivered by the same Division Bench. Although by the earlier judgment divorce was given the later case divorce was refused and Their Lordships were pleased to hold that such ground can be taken recourse of only in exceptional case. We do not find any exceptional facts relevant herein and we hold that no such exceptional case has been made out which could prompt us to follow such rule.

( 7 ) MR. Banerjee has also cited two apex Court decision reported in AIR 1994, Supreme Court, Page 710 and 1995 Volume II, Supreme Court Cases, Page 7. In the first judgment of the apex Court cited by Sri Banerjee, the apex Court following section 13 (1) (i) (a) held that mental cruelty has wide connotation and mental cruelty must be of such a nature that the parties can not reasonably be expected to live together. In the instant case the evidence would go to show that the husband caused both mental and physical torture to the wife compelling the wife to leave her matrimonial home. There has been evidence of physical cruelty caused to the wife learned judge of the Court below on appreciation of such evidence held that there is cogent reason for the wife to stay away from her matrimonial home. Such an act can not be ` termed as mental cruelty to the husband which could entitle him to get a decree from divorce on the ground of mental cruelty. Hence this judgment of the apex Court does not support the case of appellant.

( 8 ) IN the second case apex Court invoked Article 142 of the Constitution to grant divorce, we have no such power.

( 9 ) SHRI Banerjee has lastly contended that since it is an impossible task to have the wife back to her matrimonial home the Court should pass a decree for divorce on the basis of such impossibility.

( 10 ) MR. Pranab Gangopadhyay, appearing for the wife respondent, submitted that the petition for divorce is not maintainable in view of the provisions of 13 (1) (i) (b) as the petition has been filed well within the two years period stipulated in the said provision of law.