Case at a Glance
A husband married in 2003 under the Special Marriage Act sought divorce on grounds of cruelty, desertion and adultery, and the Family Court dismissed his petition in January 2025. On appeal, a Division Bench of the Tripura High Court held that he had “blatantly failed to prove the charge of alleged adultery”, that the mutual allegations and counter-allegations did not meet the test of cruelty, and that desertion was uncorroborated. It also declined his plea for divorce on irretrievable breakdown of marriage, holding that the power under Article 142(1) of the Constitution is not available to a High Court. The appeal was dismissed.
The parties married on 17 October 2003 under the Special Marriage Act, 1954; it was the second marriage for both, and each had a daughter from the earlier marriage. Over the following years, according to the pleadings, disputes arose after the husband’s transfer to Mumbai and over family matters. The husband alleged incidents in 2015 and July 2019 suggesting the wife was in a relationship with another man, and later lodged a cyber-crime complaint over social media posts. The wife denied this and alleged that she was assaulted and locked out of the house in July 2019.
The husband filed T.S. (Divorce) 175 of 2021, seeking divorce for cruelty, desertion and adultery. The Family Court dismissed it by judgment dated 17 January 2025 (decree dated 29 January 2025). He appealed under Section 19(1) of the Family Courts Act, 1984, read with Section 28 of the Hindu Marriage Act, 1955, arguing in the alternative that the marriage had irretrievably broken down.
The Key Question Before the Court
Had the husband proved adultery, cruelty or desertion — and, if not, could the High Court dissolve the marriage on the ground that it had irretrievably broken down?
Why the Division Bench Refused Divorce
Writing for the Bench, Justice Biswajit Palit stressed that “The allegation of adultery is a very serious and sensitive allegation” and held that the husband had “blatantly failed to prove” it. On cruelty, the Court applied the standards in Samar Ghosh v. Jaya Ghosh, (2007) 03 SC CK 0016 and V. Bhagat v. D. Bhagat, (1993) 11 SC CK 0003, and found that “both the parties had only leveled allegations and counter-allegations against each other”, which “does not fulfill the criteria of cruelty”. On desertion, the allegation “has not been corroborated by any independent witnesses”, and the mere fact that the spouses lived apart did not show that the wife had voluntarily withdrawn from the husband’s society.
The husband relied on Rakesh Raman v. Kavita, (2023) 04 SC CK 0103, Sonia Virk v. Rohit Vats, (2025) 12 SC CK 1661 and Sonal Talpada v. Veerbhan Singh, (2026) 06 SC CK 0092 to argue that a dead marriage should be dissolved. The Bench turned to the Constitution Bench decision in Shilpa Sailesh v. Varun Sreenivasan, (2023) 05 SC CK 0001, which recognises the Supreme Court’s power under Article 142(1) to dissolve a marriage on irretrievable breakdown, and held that “there is no authority of the High Court to exercise any power under the aforesaid article”. Finding “no infirmity or perversity in the judgment and decree” of the Family Court, it dismissed the appeal without costs.
What the Court Actually Held
- Adultery is a serious allegation requiring proof; the husband failed to prove it.
- Mutual allegations and counter-allegations between spouses did not satisfy the test of cruelty.
- Desertion was not proved: there was no independent corroboration, and living separately does not by itself show voluntary withdrawal by the wife.
- The Article 142(1) power to dissolve a marriage on that basis belongs to the Supreme Court, not the High Court; the appeal was dismissed with no order as to costs.
Why This Judgment Matters
- It clarifies, for Family Courts and High Courts alike, that Shilpa Sailesh does not let them grant divorce merely because a marriage has broken down.
- It reiterates that grave allegations like adultery must be proved by evidence, not suspicion or one-sided accounts.
- It shows that long separation and bitter litigation, without proof of a statutory ground, will not produce a divorce decree below the Supreme Court.
What Should Advocates Take Away From the Judgment?
For Spouses
- Divorce in Family Court or High Court still needs a statutory ground such as cruelty or desertion, proved by evidence.
- Making unproved adultery allegations can backfire and is treated as serious.
- Mutual consent divorce remains an option where both spouses agree.
For Counsel
- Do not frame ‘irretrievable breakdown’ as a stand-alone relief before the High Court; plead and prove statutory grounds.
- Corroborate desertion with independent witnesses showing animus deserendi.
- Reserve Article 142 arguments for the Supreme Court, where Shilpa Sailesh applies.
Key Takeaways
- The Tripura High Court affirmed the Family Court’s dismissal of the husband’s divorce petition.
- Adultery, cruelty and desertion were all held not proved.
- High Courts cannot invoke Article 142(1) to dissolve a marriage for irretrievable breakdown.
- Mutual allegations do not, by themselves, amount to cruelty.
Frequently Asked Questions
Can a High Court grant divorce on irretrievable breakdown of marriage?
According to this judgment, no. The Tripura High Court held that the Article 142(1) power recognised in Shilpa Sailesh v. Varun Sreenivasan belongs only to the Supreme Court.
Is living separately for years proof of desertion?
Not by itself. The Court said separation does not show that the wife voluntarily withdrew from the husband’s company; desertion needs proof, ideally corroborated.
What happens when both spouses make allegations against each other?
Here the Court held that mere allegations and counter-allegations did not meet the legal test of cruelty for a divorce decree.
Conclusion
Milanmoy Dewan v. Sarmistha Dewan Ghosh draws a clear line: a High Court hearing a matrimonial appeal decides on the statutory grounds pleaded and proved, and cannot borrow the Supreme Court’s Article 142 power to end a marriage that has simply broken down.
Practical takeaway: If the case rests on breakdown rather than provable fault, explore mutual consent or approach the Supreme Court — before the Family Court and High Court, prove cruelty, desertion or adultery with evidence.
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