The break-down theory should be given due importance in cases of irretrievable breakage of marriage, but it must be balanced with the guilt theory.

D.K. Seth, J.

Introduction: A very important question with regard to the matrimonial matter has since been raised by Mr. Bagchi, appearing for the appellant. Mr. Murari Das Roy, appearing for the respondent, added flavour to the said point. The question involved is the question of guilt theory and break-down theory of a matrimonial home. It is to be considered which of these theories would prevail or succeed in a conflict between the two theories. But such question could be decided only on the basis of given facts. But then, admittedly, these two theories are to be balanced in a manner so as not to destroy the object and purpose of the matrimonial law. Matrimonial law predominantly seeks to preserve the matrimony. It allows breakage only when a matrimony is irretrievably broken. It provides for reconciliation at various stages. The aims and objects are not to destroy but to preserve the matrimony. The matrimony is a unit of the society, which contributes to the civilization, growth and prosperity of the mankind. Human being is nurtured, brought up, fostered and initiated for the society in the house by the parents, the matrimony. Destruction of matrimony, therefore, is a grave situation, which is to be handled with great care and caution.

2. Facts:

In order to apply this test in the present case, we may refer to the facts.

2.1. In this case, the husband had sought to obtain a decree for divorce as against the wife on certain allegations. His first suit for divorce being Matrimonial Suit No. 67 of 1991 ended in dismissal on 29th January, 1994 by a judgment and decree passed by the learned Additional District Judge, Eighth Court, Alipore. The husband brought the second suit for restitution of conjugal rights being Matrimonial Suit No. 15 of 1995. In the said suit, a decree for restitution of conjugal rights was passed on 16th September, 1996 by the learned Additional District Judge, Fifth Court, Alipore. On the allegation that despite the decree for restitution of conjugal rights, there was no resumption of cohabitation within the period limited by law. As such, on expiry of the said incubating period, the husband had filed the present suit being Matrimonial Suit No. 80 of 1997 for divorce under section 13(1A) of the Hindu Marriage Act, 1955 (HM Act). This suit has since been dismissed refusing divorce by a judgment and decree dated 25th February, 1999 passed by the learned Additional District Judge, Fifth Court, Alipore. The husband has preferred this appeal against the said judgment and decree dismissing the Matrimonial Suit No. 80 of 1997.

2.2. The learned Judge while dismissing the suit was of the view that the husband had attempted to take advantage of his own wrong which he is ineligible under section 23(1)(a) of the Hindu Marriage Act. On materials the learned Judge had come to the conclusion that the wife was ready and willing but the husband never attempted for restitution of the conjugal rights by bringing the wife home.

3. Submission on behalf of the appellant :

Upon such facts, Mr. Bagchi had contended that even if it is assumed that the husband did not make any attempt to bring the wife to the matrimonial home, still then, wrong must be such which is something other than the ground of non-cohabitation after the decree for restitution or judicial separation is obtained. Such wrong must be something else than the failure to cohabit whoever might be responsible for such failure. The introduction of section 13(1A) HM Act itself was the initiation of the bread-down theory, which was within the intention of the legislature that had developed by different High Courts and the Apex Court of late. He had relied on, in support of his contention, the decisions in Saroj Rani vs. Sudarshan Kuamr Chandra, AIR 1984 SC 1562; Dharmendra Kumar vs. Usha Kumar, AIR 1977 SC 2218; Sneh Prova vs. Rejinder Kumar, AIR 1995 SC 2170 and Anukul Kumar Ghosh vs. Chhanda Ghosh, (2000) 2 CLJ 40 by a Division Bench of this Court. He had also referr