Gujrat Family court passes divorce on the ground of “irretrievable break down of marriage” which is not a ground under HMA and only SC has such power under Article 142
Gujarat High Court Case Information System Print SA/185/2011 2/ 2 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL No. 185 of 2011
BINABEN W/O KULINBHAI SHAH D/O SUNDERLAL SHAH – Appellant(s)
KULINKUMAR CHANDRAVADAN SHAH – Defendant(s)
========================================= Appearance :
HL PATEL ADVOCATES for Appellant(s) : 1, None for Defendant(s) : 1,
MS.JUSTICE HARSHA DEVANI
Mr. Harshil Shukla learned advocate for the appellant has invited attention to the impugned judgments and decrees passed by the lower appellate court as well as by the trial court to submit that the courts below have granted the decree of divorce on the ground of irretrievable break down of marriage. It was submitted that under the provision of section 13 of Hindu Marriage Act, 1955, irretrievable break down of marriage is not a ground for dissolution of marriage by a decree of divorce. It was submitted that before the lower appellate court, the learned advocate has specifically pointed out that the trial court has no power to pass a decree for dissolution of marriage on the ground of irretrievable break down of marriage and that of the Supreme Court in the decision on which reliance had been placed upon, had granted decree of divorce in exercise of powers under Article 142 of the Constitution of India. It was submitted that in the circumstances, the present appeal does give rise to a substantial question of law and deserves to be admitted.
Having regard to the submissions advanced by the learned advocate for the appellant, it, prima-facie, appears that both the courts below have granted divorce solely on the ground of irretrievable break down of marriage. In the circumstances, the matter requires consideration. Hence, ADMIT. The following substantial question of law arises for determination.
Whether the lower appellate court was justified in holding that decree of divorce under section 13 of the Hindu Marriage Act, 1955 could be granted on the ground of irretrievable break down of marriage?