The irretrievable breakdown of marriage, while not a direct ground under the Act, can justify divorce on desertion grounds when cohabitation has ceased and relationships are beyond repair.

JUDGMENT :

1. Heard Mr. M.K. Mohanty, learned counsel for the Appellant – husband and Mr. S.K. Mishra, learned senior counsel along with Ms.S. Rout, learned counsel for the Respondent – wife.

2. Present appeal is directed against impugned judgment dated 29^th November, 2017 of learned Judge, Family Court Dhenkanal passed in C.P. No.25 of 2016, wherein the prayer for divorce under Section 13 (1) of the Hindu Marriage Act at the instance of the husband has been refused.

3. The marriage between the parties took place on 3^rd March, 2013. Within the few months of stay of the bride in the matrimonial house the relationship was not at all congenial. There is evidence of allegations and counter allegations including the fact that the marriage never consummated and admittedly the husband and wife stayed separately since 21^st December, 2013. A criminal case was also instituted by the wife against the husband and other in-law members.

4. Section 13 (1) and 13(1A) of the HM Act read thus:

“13. Divorce.- Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or (ii) has ceased to be a Hindu by conversion to another religion; or (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation.- In this clause-

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including subnormality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or (iv) … … … …

(v) has been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;

Explanation.-In this subsection, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.

(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards