Irretrievable breakdown of marriage is not a standalone ground for divorce but constitutes cruelty under Hindu Marriage Act, empowering the court to dissolve marriage if established alongside desertion.

JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The present appeal has been preferred by the wife against a divorce decree obtained by the respondent-husband on the ground of desertion.

2. The marriage between the parties was contracted as per Hindu rites and customs on July 12, 2001 and a son was born of the said wedlock on October 13, 2003, who has since attained majority. The husband had previously filed two successive suits for divorce against the appellant-wife, which were dismissed as withdrawn respectively in the years 2005 and 2007. The present suit for divorce was instituted thereafter in the year 2017, on the grounds of cruelty and desertion. The learned Trial Judge turned down the ground of cruelty but granted divorce on the ground of desertion, inter alia holding that the marriage between the parties has broken down irretrievably.

3. Learned counsel for the appellant contends, by relying on a co-ordinate Bench judgment in Kamalika Majumdar Nee Das v. Subhapriya Majumdar , reported at 2025 SCC OnLine Cal 4835, that divorce cannot be granted at the instance of the husband if the husband himself is guilty of constructive desertion. It is argued that in the present case, the respondent-husband himself deserted the appellant-wife and, thus, cannot take advantage of his own wrong. It is submitted that the husband has not come with clean hands before the Court.

4. By placing the impugned judgment, it is argued by the appellant that the learned Trial Judge committed a legal and factual error in observing that there are sufficient materials for coming to the conclusion that the wife has caused, by her conduct, desertion to the husband and as such there is remote possibility to live together as husband and wife “with all the anguish in their respective minds”.

5. Learned counsel submits that irretrievable breakdown of marriage, by itself, is not a ground for divorce in Indian Law, particularly under the Hindu Marriage Act . It is contended that all the judgments cited by the respondent, the Supreme Court granted divorce on the ground of irretrievable break down of marriage under Article 142(1) of the Constitution of India in its discretion, which provision is not applicable to the Districts Courts or the High Courts.

6. In the unreported judgment of Samar Bijoy Roy v. Mukul Roy , the Hon’ble Supreme Court, it is argued, adopted the principle of irretrievable break down of marriage in the facts and circumstances of the case, which is argued to be different from the present case, where the husband has not come with clean hands. It is reiterated that it was the husband who deserted the wife in the present case, which is also borne out by the police report lodged by the husband in the year 2007. Learned counsel for the appellant/wife argues that the respondent/husband deliberately abstained from leading conjugal life with the appellant/wife and deserted the appellant/wife and her son. Thus, there was no desertion on the part of the appellant-wife at all and the impugned judgment ought to be set aside.

7. In reply, learned counsel for the respondent/husband cites Rakesh Raman v. Kavita , reported at (2023) 17 SCC 433 , where it was held by the Hon’ble Supreme Court that if the marital relationship between the parties has broken down irretrievably, it does nothing but inflict cruelty on both sides and to keep the facade of the br