HARENDRA NATH BURMAN Vs. SUPROVA BURMAN AND ANOTHER

JUDGEMENT

(1.) The matrimonial proceeding under the Special Marriage Act, 1954 giving rise to this appeal, was initiated by the husband-appellant against the wife-respondent for a declaration that the marriage was a nullity because of the underage of the appellant and in the alternative, for dissolution or marriage on the grounds of adultery, cruelty and desertion on the part of the wife. The petition which was thus a composite one under Section 24 as well as Section 27 of the Special Marriage Act has, however, been dismissed which has led the husband to file this appeal. The learned Counsel for the appellant, Mr. Tapan Dutta, who has argued the appeal with singular ability and persistence, has, in his endeavour to assail the order, made a strenuous attempt to do so on an additional ground, namely, that the marriage between the parties having found to have been broken down irretrievably and irreparably, ought to have been dissolved by a decree of divorce on that ground also.

(2.) Such a ground for divorce because of irretrievable break-down of the marriage was, however, not specifically taken in the pleadings nor put in the issues nor has been put forward in the memorandum of appeal in this Court And even conceding that such a ground, if borne out by the materials on record can be taken into consideration without specific articulation in the pleadings or the issues or the memorandum, we are afraid that our matrimonial laws have not yet been made broad enough to warrant dissolution of marriage on the sole ground of irretrievable breakdown without more.

(3.) The observation of the Supreme Court, while affirming a decree for divorce, in Saroj Rani vs. Sudarshan (A.I.R. 1984 S.C. 1562 at 1566) to the effect that "this marriage has broken down and the parties can no longer live together as husband and wife; if such is the case, it is better to close the chapter", has given rise to an impression, erroneous though, that the Supreme Court has ruled irretrievable breakdown of marriage to be, by itself, a ground for dissolution. As would be evident from the provisions of Section 34(1) of the Special Marriage Act, corresponding to Section 23(1) of the Hindu Marriage Act, a Matrimonial Court has been empowered to decree reliefs under the Act only if the Court is satisfied that "any of the grounds' as specified in the Act "exists". "but not otherwise" and, therefore, no Court can add new grounds for divorce by its judicial fiat. The above observation of the Supreme Court in Saroj Rani (supra), having very often been read divorced from the context, has really been misread. That was a case where a husband Bled a petition for divorce, not on the ground of irretrievable breakdown, but on the precise statutory ground as specified in Section 13(1A) (ii) of the Hindu Marriage Act, namely, non-restitution of conjugal rights between the parties for one year or more in spite of a decree for restitution to that effect and the question which was being considered by the Supreme Court was as to whether a husband, who has taken no steps to comply with a decree for restitution passed against him was disentitled from invoking Section 13(1A) (ii) and to obtain divorce thereunder on the ground that he would thereby be "taking advantage of his own wrong" within the meaning of Section 23(1) (a). The Supreme Court answered the question in the negative and, while affirming the decree for divorce on the ground specified in Section 13(1A) (ii), the learned Judges have observed further that their Lordships have done so "without any mental compunction because it is evident that for whatever be the reasons, this marriage has broken down and the parties can no longer live together as husband and wife, and if such is the case, it is better to close the chapter". It is, therefore, clear that the ground on which the dissolution of the marriage was affirmed by the Supreme Court in Saroj Rani (supra) was a ground specified in Section 13(1A) and not irreparable breakdown of marriage and therefore, the observation extracted above can not in any way be treated as any authority for the view that the Supreme Court has ruled that irretrievable breakdown, by itself and without more, would be a ground of dissolution of marriage.