The latest Supreme Court judgment clarifies that living separately is not enough for divorce under Indian divorce law. Courts must require proof of wilful desertion or cruelty before declaring an irretrievable breakdown of marriage, especially in family court cases involving children.
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NEW DELHI: The Supreme Court of India recently highlighted the importance of careful judicial examination before declaring a marriage as “irretrievably broken.” In a landmark observation delivered on November 14, 2025, a Bench comprising CJI Surya Kant and Justice Joymalya Bagchi warned that courts must not presume that living separately automatically signifies marital breakdown.
Background of the Case
The matter arose from a dispute between a husband and wife married in May 2009, with a child born in March 2010. The husband initially filed a divorce petition on grounds of cruelty in 2010, but later withdrew it. In 2013, he filed a second petition, this time alleging desertion by his wife.
- Trial Court Decision (2018): Dismissed the divorce petition, citing lack of evidence for desertion.
- Uttarakhand High Court Decision (2019): Reversed the trial court, granting divorce based primarily on the husband’s oral statements, ignoring the wife’s claim that she was forced out of her matrimonial home and had been raising the child alone.
The wife appealed to the Supreme Court, which critically evaluated the High Court’s approach.
Supreme Court’s Observations
The Supreme Court highlighted several crucial principles for courts handling divorce petitions under Section 13 of the Hindu Marriage Act, 1955:
No Presumption Based on Separation:
Courts must not automatically conclude that a marriage has broken down just because spouses are living separately.
Determine Responsibility for Separation:
Before granting a divorce, it is essential to determine whether separation was willful desertion by one party or due to circumstances beyond the control of the other.
Impact on Children:
Declaring a marriage irretrievably broken without proper evidence can have devastating effects on children, particularly when custody and upbringing are involved.
Comprehensive Evaluation of Evidence:
Courts must deeply analyze all evidence, including social circumstances, background of the parties, and any prior litigation history.
Key Legal Questions Ignored by High Court:
- Was the wife forced out of the matrimonial home, or did she voluntarily desert the husband?
- Does the withdrawal of an earlier divorce petition prevent filing a second petition on the same grounds?
- Was there cruelty, such as denying access to the matrimonial home or maintenance for the child?
Supreme Court’s Verdict
The Supreme Court set aside the High Court’s divorce order and remitted the case for fresh consideration. The top court emphasized that courts have an onerous duty to examine evidence thoroughly and consider all factors before granting a divorce.
The parties are directed to appear before the High Court on November 24, 2025.
Case Title:
DR. ANITA VERSUS INDRESH GOPAL KOHLI
SLP (CIVIL) NO. 24920 OF 2019
READ ORDER
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