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2025 Supreme(Cal) 330
IN THE HIGH COURT AT CALCUTTA
SABYASACHI BHATTACHARYYA, SUPRATIM BHATTACHARYA, JJ.
Smt. Lovely Sil nee Biswas – Appellant
Versus
Sri Ashim Kumar Sil – Respondent
F.A. 149 of 2019
Decided On : 18-12-2025
Important Points
Subject
Family Law - Divorce
Act Referred
CONSTITUTION OF INDIA : Art.141, Art.142
INDIAN PENAL CODE : S.406, S.498(a)
CIVIL PROCEDURE CODE : S.25
Headnote
Facts of the case:
The appellant challenged a divorce decree granted to the respondent, contending no valid grounds for divorce were established based on desertion, cruelty, or adultery, citing lack of statutory support for irretrievable breakdown as a divorce ground. (Paras 1-3, 4)
Findings of Court:
The marriage was deemed irretrievably broken, which the court interpreted as falling within the ambit of cruelty under the Act, leading to affirmation of the divorce decree. (Paras 30, 69)
Issues: Whether irretrievable breakdown can be independently recognized as a ground for divorce and how it relates to established grounds like cruelty. (Paras 4, 41)
Ratio Decidendi: The court reiterated that while irretrievable breakdown has been discussed in various rulings, it is not explicitly covered under the statute, emphasizing the necessity of statutory definition over judicial interpretation alone. (Paras 41, 39)
Result: Appeal dismissed, affirming the divorce decree.
For the Appellant : Mr. Arup Krishna Das, Mr. Rajarshi Ghosh, Mr. Utsav Ghatak
For the Respondent: Mr. Amal Kumar Mukhopadhyay, Mr. Palash Kanti Chakraborty, Mr. Soubhik Roy, Mr. Narayan Biswas
| Table of Content |
|---|
| 1. appeal for divorce filed by appellant (Para 1 , 2) |
| 2. arguments on grounds for divorce not met (Para 4 , 5 , 6 , 7 , 9 , 10) |
| 3. irretrievable breakdown invoked by supreme court (Para 11 , 12 , 13 , 14 , 18) |
| 4. counterarguments on claims of cruelty (Para 20 , 21 , 22 , 24 , 26 , 27) |
| 5. legal position before concluding (Para 30 , 31 , 32 , 33) |
| 6. irretrievable breakdown as a ground for cruelty (Para 35 , 36 , 39 , 40) |
| 7. admitted facts about marital issues (Para 53 , 54 , 63 , 65) |
| 8. final verdict and guidance for further applications (Para 68 , 69 , 71 , 72) |
JUDGMENT :
Sabyasachi Bhattacharyya, J.
1. The present appeal has been preferred by the defendant/wife in a suit for divorce, against a judgment decreeing the respondent/husband’s suit for divorce against the appellant.
2. The suit was filed, inter alia, on the grounds of desertion, cruelty and adultery.
3. It is pointed out by learned counsel for the appellant that none of the grounds were discussed at length by the learned Trial Judge but the impugned decree was passed primarily on the ground of irretrievable breakdown of marriage.
4. It is submitted that irretrievable breakdown of marriage, by itself, is not a ground recognized under Indian Law for grant of divorce.
5. Learned counsel submits that insofar as the ground of desertion is concerned, the cause of action for the suit allegedly arose in the month of March, 2011 whereas the suit was filed in the year 2011 itself.
6. Section 13(1)(b) of the Hindu Marriage Act, 1955, which contemplates the ground of desertion as one of the grounds for divorce, clearly stipulates that unless two clear years pass between the arising of the cause of action and the filing of the suit, no suit for divorce can be decreed on such ground.
7. Such test having not been met in the present case, it is argued that the suit could not have been decreed on the ground of desertion in any manner and was not so granted by the trial court as well.
8. Insofar as adultery is concerned, it is pointed out that the same was also not proved.
9. More importantly, learned counsel for the appellant argues that the learned Trial Judge did not independently come to any specific finding of cruelty against the present appellant/wife.
10. Despite the same, the learned Trial Judge granted divorce only on the ground of irretrievable breakdown of marriage.
11. By placing reliance on the judgment of Shilpa Sailesh vs. Varun Sreenivasan reported at (2023) 5 SCR 165 , learned counsel for the appellant argues that divorce was granted on the ground of irretrievable breakdown in the said case by the Hon’ble Supreme Court by invoking its jurisdiction under Article 142 of the Constitution of India, which permits only the Supreme Court to pass any decree or order to do complete and substantial justice between the parties.
12. However, such power was not available to the learned Trial Court, which granted the decree of divorce.
13. Learned counsel also relies on an unreported judgment of the Hon’ble Supreme Court in the matter of Rinku Baheti v. Sandesh Sharda, where the Hon’ble Supreme Court took into consideration all judgments, including that of Shilpa Sailesh (supra), and held that the Hon’ble Supreme court has the power under Article 142 of the Constitution of India to grant a decree of divorce even on the ground of irretrievable breakdown of marriage.
14. The case of Rakesh Raman vs. Kavita reported at (2023) 3 SCR 552 was also considered therein.
15. In the case of Rakesh Raman (supra), although the Hon’ble Supreme Court took a view that irretrievable breakdown amounted to cruelty, the Hon’ble Supreme Court, in the case of Rinku Baheti (supra), held that such power was exercised under Article 142 of the Constitution of India.
16. In such view of the matter, it is pointed out that the appellant/wife, having not been guilty of cruelty and still wanting to live together with the respondent/husband, no case of irretrievable breakdown or cruelty has been made out.
17. Thus, it
