By Sanjeev Sirohi*
In a latest and interesting development, we have seen just how recently on October 4, 2019, the two Judge Bench of Apex Court comprising of Justice Sanjay Kishan Kaul and Justice MR Shah in a laudable and landmark judgment titled R Srinivas Kumar v. R Shametha in Civil Appeal No. 4696 of 2013 has once again reiterated explicitly and elegantly that it can exercise its inherent powers under Article 142 of the Constitution of India for dissolution of a marriage where it 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. This has been observed earlier also many times by the Apex Court in its various judgments where it had invoked this Article 142 of the Constitution to dissolve the marriage! Earlier in this case the High Court had rejected the plea of a husband who sought a decree of divorce on the ground of irretrievable breakdown of marriage.
To start with, this noteworthy judgment authored by Justice MR Shah for himself and Justice Sanjay Kishan Kaul sets the ball rolling in para 1 wherein it is pointed out that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 06.02.2012 passed in C.M.A. No. 4142 of 2003 by the High Court of Judicature Andhra Pradesh at Hyderabad, by which the High Court has dismissed the said appeal preferred by the appellant-husband and has confirmed the judgment and order passed by the learned Family Court refusing to pass a decree of divorce against the respondent-wife, the appellant-husband has preferred the present appeal.”
To recapitulate, it is then pointed out in para 2 that, “That the marriage of the appellant and the respondent took place on 09.05.1993. That out of the said wedlock, the respondent gave birth to a male child on 29.08.1995. It appears that there were differences of opinion between the parties and according to the appellant-husband, cruelty was meted out to him. Up to 1997, many a times, the respondent-wife stayed at her parental house. The appellant-husband filed a divorce petition in the year 1999 being O.P. No. 157 of 1999 before the Family Court at Hyderabad. That the said petition was filed for a decree of divorce against the respondent-wife under Section 13(1)(a) and (b) of the Hindu Marriage Act, 1955. That the learned Family Court dismissed the said divorce petition by observing and holding that the appellant-husband has failed to prove the cruelty by the respondent-wife. The Family Court also referred to pass a decree of divorce on the ground of irretrievable breakdown of marriage.”
Furthermore, it is then pointed out in para 2.1 that, “Feeling aggrieved and dissatisfied with the judgment and order passed by the Family Court at Hyderabad dated 04.09.2003 in O.P. No. 157 of 1999 dismissing the divorce petition, the appellant-husband preferred an appeal before the High Court. Before the High Court also, the appellant-husband sought a decree of divorce on the ground of irretrievable breakdown of marriage. By the impugned judgment and order, the High Court has dismissed the said appeal. Hence, the appellant-husband is before this Court by way of the present appeal.”
After hearing the learned counsel for the respective parties at length, it is then held in para 5.1 that, “At the outset, it is required to be noted and does not seem to be in dispute that since last 22 years both the appellant-husband and the respondent-wife are residing separately. It also appears that all efforts to continue the marriage have failed and there is no possibility of re-union because of the strained relations between the parties. Thus it appears that marriage between the appellant-husband and the respondent-wife has irretrievably broken down. In the case of Hitesh Bhatnagar (supra), it is noted by this Court that Courts can dissolve a marriage as irretrievably broken down only when it is impossible to save the marriage and all efforts are made in that regard and when the Court is convinced beyond any doubt that there is actually no chance of the marriage surviving and it is broken beyond repair.”
More crucially, it is then rightly held in para 6 that, “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 the 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 suffer financially in future and she may not have to depend upon others.”
What’s more, it is then enunciated in para 7 that, “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 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.”
Most importantly, it is then held in para 8 that, “In view of the above and for the reasons stated above, the application for divorce filed by the appellant-husband for dissolution of marriage is hereby allowed. The marriage between the appellant-husband and the respondent-wife is ordered to be dissolved in exercise of powers under Article 142 of the Constitution of India on the condition and as agreed by the learned Senior Advocate appearing on behalf of the appellant-husband that the appellant-husband shall pay to the respondent-wife a lump sum permanent alimony, quantified at Rs 20,00,000/- (Rupees Twenty Lakhs) to be paid directly to the respondent-wife by way of demand draft within a period of eight weeks from today. Till the permanent alimony as above is paid to the respondent-wife, the appellant-husband to continue to pay the maintenance as being paid to her.” Lastly, it is then held in para 9 that, “The appeal is allowed in the aforesaid terms. No costs.”
In summary, it may well be said that the Apex Court has once again reiterated that the inherent powers under Article 142 of the Constitution can be invoked to dissolve marriage which has broken down irretrievably. There is no point in continuing a marriage which has broken down irretrievably. The best option in such cases is to allow the parties to separate from each other and this is what has been allowed by the top court in this leading case also even though the facts of the case do not provide a ground in law on which the divorce could be granted! No denying it!
*Advocate, Meerut, Uttar Pradesh