Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4984-4985 OF 2021
[Arising out of SLP(C) Nos. 17505-17506/2019]
SIVASANKARAN ……APPELLANT
VERSUS
SANTHIMEENAL ….RESPONDENT
J U D G M E N T
SANJAY KISHAN KAUL, J.
1. The appellant-husband and the respondent-wife resolved to tie the
marital knot by solemnising their marriage as per the Hindu rites and
customs on 7.2.2002. It appears there was a crash landing at the take-of
stage itself! The appellant claims that the respondent’s view was that she
had been coerced into marrying the appellant without giving her consent,
and left the marriage hall late at night and went to Pudukkottai. An
endeavour by the relatives of the appellant to persuade her on the very next
day to live with the appellant was not fruitful. The marriage was never
consummated. As the marriage did not work out since its inception, the
appellant issued a notice dated 25.02.2002 seeking divorce on the ground of
1
cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 (hereinafter
referred to as ‘the Act’). Surprisingly, the respondent filed a petition for
restitution of conjugal rights soon thereafter. Respondent’s case was that
the appellant and his family demanded dowry and, on being unable to oblige,
the appellant’s brothers took him away from the Respondent’s company,
rendering consummation of the marriage impossible. She claims that it was
the appellant who refused to cohabit with her. In these circumstances,
appellant filed HMOP 24/2003 on 05.03.2003 under Section 13(1)(i-a) of the
Act, which was later re-numbered as HMOP 10/2005. Post-trial, a decree of
divorce was granted after almost 5 years on 17.3.2008 on the ground of
irretrievable breakdown of marriage. The appellant did not waste much time
and got married a second time on 23.3.2008 after 6 days. The respondent
preferred an appeal before the Addl. District Judge, Pudukkottai. It is her
case that she filed an appeal on 1.7.2008, within the period of limitation after
obtaining all the requisite papers; but the appeal was renumbered as CMA
No.5 and 7 of 2011. The appellate court set aside the decree of divorce
while allowing the petition for restitution of conjugal rights. The third round
took place before the High Court in second appeal and, in terms of judgment
dated 14.9.2018, the decree of divorce granted by the trial court was
restored. Thus, each stage of scrutiny took 5 years, and 15 years passed in
the litigation. In this period, the battle between the parties continued. This
inter alia posed a question mark on the status of the second marriage of the
appellant. The matter, however, did not end at this. The respondent filed a
2
review petition inter alia on the ground that it was not within the jurisdiction
of the High Court or the trial court to grant a decree of divorce on the ground
of irretrievable breakdown of marriage. The High Court noticed some
aspects of alleged cruelty and dissolved the marriage by passing a decree of
divorce on the ground of irretrievable breakdown of marriage. Thus, the
review petition was allowed by the impugned order dated 25.2.2019, which
has been assailed in the present appeal.
2. The endeavour to find a solution through mediation or any acceptable
solution between the parties did not succeed. According to the learned
counsel for the parties, the respondent was not willing to concede the decree
of divorce on any terms even though both the parties are educated and
living their separate lives now for almost two decades. In fact, learned
counsel for the respondent even stated that she was not disturbed by nor
wanted to afect the status of the second marriage; but was unwilling to
concede to a scenario where her marriage with the appellant came to an end
even though in view of the financial status of the parties no maintenance
was being claimed. In these circumstances, we are called upon to take a
view of the matter in the given factual scenario and the subsequent
developments, which are material, during the pendency of the proceedings
at various stages of the judicial process.
3. We have examined the rival contentions of the parties and we have
little doubt that this is one marriage which has not worked and cannot work.
3
This is not only on account of the fact that the appellant has married a
second time but also because the parties are so troubled by each other that
they are not willing to even think of living together. This, despite the fact
that the respondent keeps on claiming that she is and was always willing to
live with him.
4. Insofar as irretrievable breakdown of marriage is concerned, no doubt,
it does not exist as a ground of divorce under the Act. The issue has been
debated by the Law Commission in its various reports. Breakdown of
marriage was incidentally considered by the Law Commission in its 59th
report (1974), but the Commission made no specific recommendations in this
regard. Thereafter in its 71st report (1978), the Law Commission departed
from the fault theory of divorce to recognise situations where a marriage has
completely broken down and there is no possibility of reconciliation. Neither
party need individually be at fault for such a breakdown of the marriage – it
may be the result of prolonged separation, clash of personalities, or
incompatibility of the couple. As the Law Commission pithily noted, such
marriages are ‘merely a shell out of which the substance is gone’. For such
situations, the Commission recommended that the law be amended to
provide for ‘irretrievable breakdown of marriage’ as an additional ground of
divorce. This recommendation was reiterated by the Law Commission in its
217th Report in 2010, after undertaking a suo moto study of the legal issues
involved. So far, the Law Commission’s recommendations have not been
implemented. In 2010, the government introduced the Marriage Laws
4
(Amendment) Bill, 2010, which inter alia proposed to add irretrievable
breakdown of marriage as a new ground for divorce in both the Hindu
Marriage Act, 1955 and the Special Marriage Act, 1954. After receiving
suggestions from relevant stakeholders, the bill was amended and reintroduced as the Marriage Laws (Amendment) Bill, 2013. This bill was never
passed.
5. The result is that, in appropriate cases, this court has granted decrees
of divorce exercising its unique jurisdiction under Article 142 of the
Constitution of India, to do complete justice between the parties. Such a
course is being followed in varied kinds of cases, for instance where there
are inter se allegations between the parties, in order to put a quietus to the
matter, the parties withdraw these allegations and by mutual consent, this
court itself grants divorce. There are also cases where the parties accept
that there is an irretrievable breakdown of marriage and themselves request
for a decree of divorce. One of the more difficult situations is where, in the
opinion of the court, there is irretrievable breakdown of marriage but only
one of the parties is willing to acknowledge the same and accept divorce on
that account, while the other side seeks to oppose it even if it means
carrying on with the marriage.
6. The ground which is often taken to oppose such a decree of divorce,
apart from the absence of legislative mandate, is that the very institution of
marriage is distinctly understood in diferent countries. Under the Hindu
Law, it is sacramental in character and is supposed to be an eternal union of
5
two people - society at large does not accept divorce, given the heightened
importance of marriage as a social institution in India. Or at least, it is far
more difficult for women to retain social acceptance after a decree of
divorce. This, coupled with the law’s failure to guarantee economic and
financial security to women in the event of a breakdown of marriage; is
stated to be the reason for the legislature’s reluctance to introduce
irretrievable breakdown as a ground for divorce – even though there may
have been a change in social norms over a period of time. Not all persons
come from the same social background, and having a uniform legislative
enactment is thus, stated to be difficult. It is in these circumstances that this
court has been exercising its jurisdiction, despite such reservations, under
Article 142 of the Constitution of India.
7. A marriage is more than a seemingly simple union between two
individuals. As a social institution, all marriages have legal, economic,
cultural, and religious ramifications. The norms of a marriage and the varying
degrees of legitimacy it may acquire are dictated by factors such as marriage
and divorce laws, prevailing social norms, and religious dictates. Functionally,
marriages are seen as a site for the propagation of social and cultural capital
as they help in identifying kinship ties, regulating sexual behaviour, and
consolidating property and social prestige. Families are arranged on the idea
of a mutual expectation of support and amity which is meant to be
experienced and acknowledged amongst its members. Once this amity
6
breaks apart, the results can be highly devastating and stigmatizing. The
primary efects of such breakdown are felt especially by women, who may
find it hard to guarantee the same degree of social adjustment and support
that they enjoyed while they were married.
8. We may notice that the aforesaid exercise has produced diferent
judicial thought processes which have resulted in a reference to a
Constitution Bench of this Court in T.P.(C) No.1118/2014.1
The reference is on
two grounds – (a) what could be the broad parameters for exercise of powers
under Article 142 of the Constitution to dissolve the marriage between
consenting parties without referring the parties to the family court to wait for
the period prescribed under Section 13-B of the Act, and (b) whether the
exercise of such jurisdiction under Article 142 should be made at all or
whether it should be left to be determined on the facts of each case.
9. In fact, this has been the bedrock of the submissions of the learned
counsel for the respondent who has strongly opposed any endeavour by this
court to exercise jurisdiction under Article 142 of the Constitution to give a
decree of divorce on account of irretrievable breakdown of marriage in the
absence of consent of the parties. However, we must note that the remit of
the questions referred in TP (C) No. 1118/2014 is rather specific. The
reference is limited to cases of divorce on mutual consent, and it raises the
issue of whether the period prescribed under S. 13-B of the Act is mandatory.
The present case involves a divorce petition filed under S. 13(1)(i-a) of the
1 Shilpa Sailesh v. Varun Sreenivasan; order dated 29.06.2016.
7
Act, and at no point of time have both parties been amenable to a divorce on
mutual consent. Lack of consent to divorce in the present matter is also
apparent from the subsequent conduct of one of the parties, as discussed
later in this judgment. The case at hand is therefore, in our opinion, not
covered by the questions referred to the Constitution Bench in T.P. (C) No.
1118/2014.
10. We may further note that despite the reference order dated
29.06.2016, there have been various instances where this court has
exercised its powers to grant divorce in such circumstances.
11. We may initially refer to two judicial pronouncements in R. Srinivas
Kumar v. R. Shametha
2
and Munish Kakkar v. Nidhi Kakkar
3 where it has been
clearly opined that there is no necessity of consent by both the parties for
exercise of powers under Article 142 of the Constitution of India to dissolve
the marriage on the ground of irretrievable breakdown of marriage.
12. In R. Srinivas Kumar,
4
the parties had been living apart for 22 years
and all endeavours to save the marriage had failed. We may note that in
Hitesh Bhatnagar v. Deepa Bhatnagar
5
, it was opined by this Court that
courts can dissolve a marriage as irretrievably broken down only when it is
impossible to save the marriage, all eforts have been made in that regard,
the Court is convinced beyond any doubt that there is actually no chance of
2 (2019) 9 SCC 409.
3 (2020) 14 SCC 657.
4 Supra
5 (2011) 5 SCC 234.
8
the marriage surviving, and it is broken beyond repair. It could be useful to
reproduce the observations made in para 5.2 to para 8 as under:
“5.2. In Naveen Kohli [Naveen Kohli v. Neelu Kohli,
(2006) 4 SCC 558] , a three-Judge Bench of this Court
has observed as under :
“74. … once the marriage has broken down
beyond repair, it would be unrealistic for the law not
to take notice of that fact, and it would be harmful to
society and injurious to the interests of the parties.
Where there has been a long period of continuous
separation, it may fairly be surmised that the
matrimonial bond is beyond repair. The marriage
becomes a fiction, though supported by a legal tie.
By refusing to sever that tie the law in such cases
does not serve the sanctity of marriage; on the
contrary, it shows scant regard for the feelings and
emotions of the parties.
***
85. Undoubtedly, it is the obligation of the court
and all concerned that the marriage status should, as
far as possible, as long as possible and whenever
possible, be maintained, but when the marriage is
totally dead, in that event, nothing is gained by
trying to keep the parties tied forever to a marriage
which in fact has ceased to exist. …
86. In view of the fact that the parties have been
living separately for more than 10 years and a very
large number of aforementioned criminal and civil
proceedings have been initiated by the respondent
against the appellant and some proceedings have
been initiated by the appellant against the
respondent, the matrimonial bond between the
parties is beyond repair. A marriage between the
parties is only in name. The marriage has been
wrecked beyond the hope of salvage, public interest
and interest of all concerned lies in the recognition of
the fact and to declare defunct de jure what is
already defunct de facto.”
(emphasis supplied)
A similar view has been expressed in Samar
Ghosh [Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511].
9
6. In the similar set of facts and circumstances of the
case, this Court in Sukhendu Das [Sukhendu Das v. Rita
Mukherjee, (2017) 9 SCC 632 : (2017) 4 SCC (Civ) 714]
has directed to dissolve the marriage on the ground of
irretrievable breakdown of marriage, in exercise of
powers under Article 142 of the Constitution of India.
7. Now so far as submission on behalf of the
respondent wife that unless there is a consent by both
the parties, even in exercise of powers under Article 142
of the Constitution of India the marriage cannot be
dissolved on the ground of irretrievable breakdown of
marriage is concerned, the aforesaid has no substance.
If both the parties to the marriage agree for separation
permanently and/or consent for divorce, in that case,
certainly both the parties can move the competent
court for a decree of divorce by mutual consent. Only in
a case where one of the parties do not agree and give
consent, only then the powers under Article 142 of the
Constitution of India are required to be invoked to do
substantial justice between the parties, considering the
facts and circumstances of the case. However, at the
same time, the interest of the wife is also required to be
protected financially so that she may not have to sufer
financially in future and she may not have to depend
upon others.
8. This Court, in a series of judgments, has exercised
its inherent powers under Article 142 of the Constitution
of India for dissolution of a marriage where the Court
finds that the marriage is totally unworkable,
emotionally dead, beyond salvage and has broken down
irretrievably, even if the facts of the case do not provide
a ground in law on which the divorce could be granted.
In the present case, admittedly, the appellant husband
and the respondent wife have been living separately for
10
more than 22 years and it will not be possible for the
parties to live together. Therefore, we are of the opinion
that while protecting the interest of the respondent wife
to compensate her by way of lump sum permanent
alimony, this is a fit case to exercise the powers under
Article 142 of the Constitution of India and to dissolve
the marriage between the parties.”
13. In Munish Kakkar case
6
, the following observations were made:
“19. We may note that in a recent judgment of this
Court, in R. Srinivas Kumar v. R. Shametha, to which
one of us (Sanjay Kishan Kaul, J.) is a party, divorce
was granted on the ground of irretrievable
breakdown of marriage, after examining various
judicial pronouncements. It has been noted that such
powers are exercised not in routine, but in rare
cases, in view of the absence of legislation in this
behalf, where it is found that a marriage is totally
unworkable, emotionally dead, beyond salvage and
has broken down irretrievably. That was a case where
parties had been living apart for the last twenty-two
(22) years and a re-union was found to be
impossible. We are conscious of the fact that this
Court has also extended caution from time to time on
this aspect, apart from noticing 1(2019) 9 SCC 409
10 that it is only this Court which can do so, in
exercise of its powers under Article 142 of the
Constitution of India. If parties agree, they can
always go back to the trial court for a motion by
mutual consent, or this Court has exercised
jurisdiction at times to put the matter at rest quickly.
But that has not been the only circumstance in which
a decree of divorce has been granted by this Court.
In numerous cases, where a marriage is found to be
a dead letter, the Court has exercised its
extraordinary power under Article 142 of the
Constitution of India to bring an end to it.
20. We do believe that not only is the continuity of
this marriage fruitless, but it is causing further
emotional trauma and disturbance to both the
6 supra
11
parties. This is even reflected in the manner of
responses of the parties in the Court. The sooner this
comes to an end, the better it would be, for both the
parties. Our only hope is that with the end of these
proceedings, which culminate in divorce between the
parties, the two sides would see the senselessness of
continuing other legal proceedings and make an
endeavour to even bring those to an end.
21. The provisions of Article 142 of the Constitution
provide a unique power to the Supreme Court, to do
“complete justice” between the parties, i.e., where at
times law or statute may not provide a remedy, the
Court can extend itself to put a quietus to a dispute
in a manner which would befit the facts of the case.
It is with this objective that we find it appropriate to
take recourse to this provision in the present case.
22. We are of the view that an end to this marriage
would permit the parties to go their own way in life
after having spent two decades battling each other,
and there can always be hope, even at this age, for a
better life, if not together, separately. We, thus,
exercising our jurisdiction under Article 142 of the
Constitution of India, grant a decree of divorce and
dissolve the marriage inter se the parties forthwith.”
The aforesaid are two illustrative cases but there are many more spread over
diferent periods of time.7
14. We are conscious that the Constitution Bench is examining the larger
issue but that reference has been pending for the last five years. Living
together is not a compulsory exercise. But marriage is a tie between two
parties. If this tie is not working under any circumstances, we see no
purpose in postponing the inevitability of the situation merely because of the
pendency of the reference.
7 Sukhendu Das v. Rita Mukherjee (2017) 9 SCC 632; Parveen Mehta v. Inderjit Mehta (2002)
5 SCC 706.
12
15. However, the aforesaid is not the only issue under which the given
facts of a case can be examined. No doubt, the courts below did not find
adequate material to come to the conclusion that the appellant was entitled
to divorce on grounds of cruelty. However, there are many subsequent
circumstances which have arisen in the present case which necessitated the
examination of this aspect. The question, thus, is whether the respondent’s
conduct after the initial trigger for divorce amounts to mental cruelty. On the
basis of material on record, we endeavour to deal with this aspect and, in
that behalf, we notice the following:
(a) The respondent has resorted to filing multiple cases in courts against
the appellant. It may be noticed that such repeated filing of cases itself has
been held in judicial pronouncements to amount to mental cruelty.8
(b) Respondent filed W.P. No.20407/2013 praying for a writ of mandamus
to initiate disciplinary action against the appellant, who was working as an
Asst. Professor in the Department of History in Government Arts College,
Karur. This writ petition was dismissed on 6.6.2019.
(c) The respondent sought some information from the College vide an RTI
application dated 3.6.2013. She claimed the information received from the
college was insufficient and filed an appeal. She sought the service records
pertaining to the appellant, apart from other documents such as the identity
card issued to the appellant under the Star Health Insurance Scheme and
8 K. Srinivas Rao v. DA Deepa (2013) 5 SCC 226; Naveen Kohli v. Neelu Kohli (2006) 4 SCC
558; Vishwanath Agrawal v. Sarla Vishwanath Agrawal (2012) SCCOnline SC 489.
13
prior permission obtained by the appellant for purchasing a piece of property
owned by the Tamil Nadu Housing Board etc.
(d) The respondent thereafter filed Writ Petition No. 9516/2014. Even the
information already furnished to her was again sought for. The Madras High
Court opined, in terms of the judgment dated 3.3.2016, that the respondent
had raised unnecessary queries. Her queries sought information about her
husband’s remarriage or whether he was living with somebody else, well
known to her, and the proceedings were found to be an abuse of the process
of the RTI Act.
(e) The respondent made representations to the college authorities
seeking initiation of disciplinary proceedings against the appellant. It was
not confined to even those college authorities, but she made representations
even to the Director of Collegiate Education and the Secretary, Department
of Higher Education (Tamil Nadu). She sought disciplinary proceedings
against the appellant on account of the second marriage despite the fact
that the second marriage took place soon after the decree of divorce. Thus,
she sought to somehow ensure that the appellant loses his job. Filing of such
complaints seeking removal of one’s spouse from job has been opined as
amounting to mental cruelty.9
16. On having succeeded before the first appellate court, the respondent
lodged a criminal complaint against the appellant under Section 494 IPC
even though her appeal was pending before the High Court. She sought to
9 K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
14
array and accuse even the persons who had attended the second marriage.
The High Court quashed the criminal proceedings in terms of order dated
18.2.2019.
17. There are episodes of further harassment by the respondent even at
the place of work of the appellant including insulting the appellant in front of
students and professors, as is apparent from the judgment of the Trial Court.
She is stated to have threatened the appellant of physical harm in front of his
colleagues as per the testimony of PW.3 and complained to the appellant’s
employer threatening to file a criminal complaint against him (PW.3). The
first appellate court somehow brushed aside these incidents as having not
been fully established on a perception of wear and tear of marriage. The
moot point is that the marriage has not taken of from its inception. There
can hardly be any ‘wear and tear of marriage’ where parties have not been
living together for a long period of time. The parties, undisputedly, never
lived together even for a day.
18. We are, thus, faced with a marriage which never took of from the first
day. The marriage was never consummated and the parties have been living
separately from the date of marriage for almost 20 years. The appellant
remarried after 6 years of the marriage, 5 years of which were spent in Trial
Court proceedings. The marriage took place soon after the decree of divorce
was granted. All mediation eforts have failed.
15
19. In view of the legal position which we have referred to aforesaid, these
continuing acts of the respondent would amount to cruelty even if the same
had not arisen as a cause prior to the institution of the petition, as was found
by the Trial Court. This conduct shows disintegration of marital unity and
thus disintegration of the marriage.10 In fact, there was no initial integration
itself which would allow disintegration afterwards. The fact that there have
been continued allegations and litigative proceedings and that can amount
to cruelty is an aspect taken note of by this court.11 The marriage having not
taken of from its inception and 5 years having been spent in the Trial Court,
it is difficult to accept that the marriage soon after the decree of divorce,
within 6 days, albeit 6 years after the initial inception of marriage, amounts
to conduct which can be held against the appellant.
20. In the conspectus of all the aforesaid facts, this is one case where both
the ground of irretrievable breakdown of marriage and the ground of cruelty
on account of subsequent facts would favour the grant of decree of divorce
in favour of the appellant.
21. We are, thus, of the view that a decree of divorce dissolving the
marriage between the parties be passed not only in exercise of powers under
Article 142 of the Constitution of India on account of irretrievable breakdown
of marriage, but also on account of cruelty under Section 13(1)(i-a) of the Act
10 A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22
11 Malathi Ravi v. B.V. Ravi, (2014) 7 SCC 640
16
in light of the subsequent conduct of the respondent during the pendency of
judicial proceedings at various stages.
22. The decree of divorce is, accordingly, passed. Marriage stands
dissolved.
23. The appeals are allowed in the aforesaid terms leaving the parties to
bear their own costs.
……..……………………………….J.
[SANJAY KISHAN KAUL]
……..……………………………….J.
[HRISHIKESH ROY]
NEW DELHI.
September 13, 2021
17
