* Author
[2024] 1 S.C.R. 697 : 2024 INSC 55
Prakashchandra Joshi
v.
Kuntal Prakashchandra Joshi @ Kuntal Visanji Shah
(Civil Appeal No. 934 of 2024)
24 January 2024
[B.R. Gavai and Prashant Kumar Mishra,* JJ.]
Issue for Consideration
Whether a decree for divorce can be granted for the reason that
the marriage has irretrievably broken down.
Headnotes
Marriage – Irretrievable break down – Appellant contended
that the appellant and the respondent were living apart due
to matrimonial discord for the last 13 years and as there are
no prospects for reconciliation, the marriage has irretrievably
broken down:
Held: The appellant lost his job in Canada and the family came
back to India in January, 2011 – The couple last resided together
in appellant’s mother’s house till 19.02.2011 – After this date, they
lost contact with each other, and the respondent refused to return
to the matrimonial home – On being contacted, the respondent
refused to resume matrimonial life unless the appellant separates
from his family and resides in a separate household – On account
of appellant’s inability to accede to this demand of the respondent,
she never returned to resume the matrimonial life – The respondent
did not appear in the proceedings u/s. 9 of the Hindu Marriage
Act, despite receiving summons – Similarly, in the present divorce
proceedings also the respondent failed to enter appearance despite
service of notice in the Trial Court, High Court and Supreme Court
as well – Thus, it is apparent that the respondent does not wish to
continue the marital chord and is not responding to court summons
– There is no hesitation in holding that the present is a case of
irretrievable breakdown of marriage as there is no possibility of the
couple staying together – For the foregoing reasons, the marriage
between the parties is dissolved in exercise of powers u/Art. 142(1)
of the Constitution. [Paras 11, 12, 15, 16]
698 [2024] 1 S.C.R.
Digital Supreme Court Reports
Case Law Cited
Shilpa Sailesh vs. Varubn Sreenivasan, [2023] 5 SCR
165 : (2023) SCC online SC 544 – relied on.
Sukhendu Das vs. Rita Mukherjee, (2017) 9 SCC 632;
Samar Ghosh vs. Jaya Ghosh, [2007] 4 SCR 428:
(2007) 4 SCC 511 – referred to.
List of Acts
Constitution of India.
List of Keywords
Irretrievable break down of marriage; matrimonial discord; Couple
living separately; non-appearance of party; Dissolution of marriage;
Decree for divorce; Article 142(1) of Constitution.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 934 of 2024.
From the Judgment and Order dated 24.06.2021 of the High Court
of Judicature at Bombay in FCA No.162 of 2019.
Appearances for Parties
Dhananjay Bhaskar Ray, Adv. for the Appellant.
Judgment / Order of the Supreme Court
Judgment
Prashant Kumar Mishra, J.
Leave granted.
2. The instant appeal is directed against the judgment and order
impugned dated 24.06.2021 passed by the High Court of Judicature
at Bombay in Family Court Appeal No. 162 of 2019 whereby the
High Court, while affirming the order of the Family Court, dismissed
the appeal seeking dissolution of marriage by a decree of divorce.
3. The facts in brief are that the marriage between the appellant and
respondent was solemnized on 05.01.2004 as per the rituals of
Hindu religion after having spent eight years in courtship. They
are Indian citizens by birth. However, they acquired citizenship
[2024] 1 S.C.R. 699
Prakashchandra Joshi v. Kuntal Prakashchandra Joshi
@ Kuntal Visanji Shah
of Canada for financial gain and were living a normal and happy
matrimonial life in Canada. A male child was born from the wedlock
on 21.05.2010. In the year 2011, the appellant started experiencing
medical problems namely, constant back and shoulder pain as well
as skin related problems, especially during summer due to rag weed
allergy resulting into sleepless nights and miserable days. During
the period of recession in Canada, the appellant lost his job and the
couple along with the minor child returned to India on 29.01.2011. The
respondent after wilfully staying at her matrimonial home, joined her
parental house on 20.02.2011. After some time, when the appellant
asked the respondent to resume cohabitation, the respondent did
not pay any heed and refused to join the company of the appellant.
The respondent was interested in returning to Canada for a better
future. The appellant, however, expressed his unwillingness to shift to
Canada owing to his health issues. Various attempts were made by
the family of the parties to resolve the matrimonial discord between
them but to no avail. The respondent left for Canada with her son.
Thereafter, the appellant tried to contact the respondent either through
e-mail or by other modes requesting her to come and cohabit with
him. It was neither responded to nor complied with.
4. The appellant was, therefore, constrained to prefer a petition under
Section 9 of the Hindu Marriage Act for restitution of conjugal rights
which remained uncontested on behalf of the respondent though the
respondent was duly served. Desperately, the appellant withdrew the
petition for restitution of conjugal rights. Since the appellant realized
that there would be no hope of any restitution, he filed a divorce
petition on the ground of cruelty and desertion.
5. The petition proceeded ex parte as, despite due service, the
respondent remained unrepresented. After considering the pleadings
and evidence, the learned Family Court dismissed the petition of the
appellant, inter alia, observing that no case had been made from the
alleged cruelty caused to the appellant by the respondent.
6. Being aggrieved with and dissatisfied by the dismissal of the petition
by the learned Family Court, the appellant moved a Family Court
Appeal before the High Court. The High Court dismissed the
appeal by holding that no case has been made out by the appellant
for seeking a decree of divorce on the ground of either cruelty or
desertion. Hence, this appeal.
700 [2024] 1 S.C.R.
Digital Supreme Court Reports
7. Considering the facts and circumstances, a short question arises for
our consideration as to whether a decree for divorce can be granted
for the reason that the marriage has irretrievably broken down.
8. Notice was issued to the sole respondent/wife on 21.01.2022, which
was duly served upon the respondent. The respondent once again
did not put in appearance either in-person or through an advocate.
9. We have heard Mr. Dhananjay Bhaskar Ray, learned counsel
appearing for the appellant at length and have also perused the
pleadings.
10. Mr. Dhananjay would submit that the respondent deserted the
appellant about 13 years ago and she refused to cohabit with the
appellant. Learned counsel would further submit that the appellant
and the respondent have been living apart due to matrimonial discord
for the last 13 years and as there are no prospects for reconciliation,
the marriage has been irretrievably broken down. The learned
counsel would argue that the uncontroverted evidence substantially
establishes the fact that the appellant had been treated with mental
cruelty by his wife who had left his company despite an objection
from the appellant. The learned counsel further submitted that the
conduct of the respondent itself indicates that she is not willing to
live with the appellant. Learned counsel for the appellant, in support
of the contentions, placed reliance on the decisions of this Court in
the case of “Sukhendu Das Vs. Rita Mukherjee1
” and “Samar
Ghosh vs. Jaya Ghosh2
”.
11. The record reveals that after appellant’s car accident in November,
2009 the couple was blessed with a baby boy on 21.05.2010. The
appellant lost his job owing to the deep recession in Canada and
eventually the family came back to India in January, 2011. The
couple last resided together in appellant’s mother’s house at Mumbai
till 19.02.2011. After this date, they lost contact with each other,
and the respondent refused to return to the matrimonial home. On
being contacted, the respondent refused to resume matrimonial
life unless the appellant separates from his family and resides in a
1 (2017) 9 SCC 632
2 (2007) 4 SCC 511
[2024] 1 S.C.R. 701
Prakashchandra Joshi v. Kuntal Prakashchandra Joshi
@ Kuntal Visanji Shah
separate household. On account of appellant’s inability to accede
to this demand of the respondent, she never returned to resume
the matrimonial life.
12. It is also to be seen that in the proceedings initiated by the appellant
for restitution of conjugal rights under Section 9 of the Hindu Marriage
Act, the respondent did not appear despite receiving the summons.
Similarly, in the present divorce proceedings also the respondent
failed to enter appearance despite service of notice in the Trial
Court, High Court and Supreme Court as well. Thus, it is apparent
that the respondent does not wish to continue the marital chord and
is not responding to court summons much less the request made
by the appellant.
13. On the basis of the above factual matrix the present appears to
be a case of irretrievable breakdown of marriage. In the matter of
“Shilpa Sailesh vs. Varubn Sreenivasan3
”, this Court has held
that exercise of jurisdiction under Article 142 (1) of the Constitution
of India is clearly permissible to do ‘complete justice’ to a ‘cause or
matter’ and this Court can pass an order or decree which a family
court, trial court or High Court can pass and when such power is
exercised, the question or issue of lack of subject-matter jurisdiction
does not arise.
14. On the issue as to grant of divorce on the ground of irretrievable
breakdown of marriage in exercise of jurisdiction under Article 142
(1) of the Constitution of India, this Court in Shilpa Sailesh (supra)
held thus in paras 33 and 42 (iii):
“33. Having said so, we wish to clearly state that grant
of divorce on the ground of irretrievable breakdown of
marriage by this Court is not a matter of right, but a
discretion which is to be exercised with great care and
caution, keeping in mind several factors ensuring that
‘complete justice’ is done to both parties. It is obvious
that this Court should be fully convinced and satisfied that
the marriage is totally unworkable, emotionally dead and
beyond salvation and, therefore, dissolution of marriage
is the right solution and the only way forward. That the
3 (2023) SCC online SC 544
702 [2024] 1 S.C.R.
Digital Supreme Court Reports
marriage has irretrievably broken down is to be factually
determined and firmly established. For this, several
factors are to be considered such as the period of time
the parties had cohabited after marriage; when the parties
had last cohabited; the nature of allegations made by
the parties against each other and their family members;
the orders passed in the legal proceedings from time
to time, cumulative impact on the personal relationship;
whether, and how many attempts were made to settle the
disputes by intervention of the court or through mediation,
and when the last attempt was made, etc. The period of
separation should be sufficiently long, and anything above
six years or more will be a relevant factor. But these facts
have to be evaluated keeping in view the economic and
social status of the parties, including their educational
qualifications, whether the parties have any children,
their age, educational qualification, and whether the other
spouse and children are dependent, in which event how and
in what manner the party seeking divorce intends to take
care and provide for the spouse or the children. Question
of custody and welfare of minor children, provision for fair
and adequate alimony for the wife, and economic rights of
the children and other pending matters, if any, are relevant
considerations. We would not like to codify the factors so
as to curtail exercise of jurisdiction under Article 142(1) of
the Constitution of India, which is situation specific. Some
of the factors mentioned can be taken as illustrative, and
worthy of consideration.
42 (iii) Whether this Court can grant divorce in exercise
of power under Article 142(1) of the Constitution of India
when there is complete and irretrievable breakdown of
marriage in spite of the other spouses opposing the prayer?
This question is also answered in the affirmative, inter alia,
holding that this Court, in exercise of power under Article
142(1) of the Constitution of India, has the discretion to
dissolve the marriage on the ground of its irretrievable
breakdown. This discretionary power is to be exercised to
do ‘complete justice’ to the parties, wherein this Court is
satisfied that the facts established show that the marriage
[2024] 1 S.C.R. 703
Prakashchandra Joshi v. Kuntal Prakashchandra Joshi
@ Kuntal Visanji Shah
has completely failed and there is no possibility that the
parties will cohabit together, and continuation of the formal
legal relationship is unjustified. The Court, as a court of
equity, is required to also balance the circumstances and
the background in which the party opposing the dissolution
is placed.”
15. Reverting back to the case in hand, to accord satisfaction as to
whether the present is a fit case for exercise of power under Article
142 (1) of the Constitution of India to dissolve the marriage on the
ground of irretrievable breakdown, we see that the parties are residing
separately since February, 2011 and there have been no contact
whatsoever between them during this long period of almost 13 years.
The respondent-wife is not even responding to the summons issued
by the courts. It seems she is no longer interested in continuing the
marital relations with the appellant. Therefore, we have no hesitation
in holding that the present is a case of irretrievable breakdown of
marriage as there is no possibility of the couple staying together.
16. For the foregoing reasons, the appeal is allowed and we dissolve the
marriage between the parties on the ground of irretrievable breakdown
in exercise of powers under Article 142(1) of the Constitution of
India. Accordingly, the marriage between the parties solemnized
on 05.01.2004 is dissolved by a decree of divorce. A decree to this
effect be drawn accordingly.
Headnotes prepared by: Ankit Gyan Result of the case: Appeal allowed.
