MUNISH KAKKAR versus NIDHI KAKKAR

MUNISH KAKKAR

NIDHI KAKKAR

(Civil Appeal No. 9318 of 2014)

DECEMBER 17, 2019

[SANJAY KISHAN KAUL AND K.M. JOSEPH, JJ.]

Hindu Marriage Act, 1955:

s. 13(1)(ia) – Petition seeking divorce – By husband –Trial Court passed decree of divorce – High Court set aside thedecree – Appeal to Supreme Court – Held: The High Court hasbrushed aside the allegations as wear and tear of marriage – Butthe relationship between the parties has deteriorated to such anextent that continuity of marriage is fruitless – Though the groundof ‘irretrievable breakdown of marriage’ has not been inserted as aground for divorce under the Act, in exercise of jurisdiction u/Art.142 of the Constitution, in order to put quiet us to the dispute,decree of divorce is granted – Constitution of India – Art. 142.

Allowing the appeal, the Court

HELD: 1. The High Court appears to have brushed asidethe allegations of extra marital affairs as also of child out of thewedlock as part of the wear and tear of marriage and as “inflamedpassions.” However, the fact remains that the the relationshipbetween the parties appears to have deteriorated to such anextent that both parties see little good in each other, an aspectsupported by the counselor’s report; though the respondentinsists that she wants to stay with the appellant. Matrimonialrelationships require adjustments from both sides, and awillingness to stay together. The mere say of such willingnesswould not suffice. [Para 13][174-B-D]

2. It is no doubt true that the divorce legislations in Indiaare based on the ‘fault theory’, i.e., no party should take advantageof his/her own fault, and that the ground of irretrievable breakdownof marriage, as yet, has not been inserted in the divorce law,

Adespite debate on this aspect by the Law Commission in tworeports. The provisions of Article 142 of the Constitution providea unique power to the Supreme Court, to do “complete justice”between the parties, i.e., where at times law or statute may notprovide remedy, the Court can extend itself to put quietus toBa dispute in manner which would befit the facts of the case.Where marriage is found to be dead letter, the Court hasexercised its extraordinary power under Article 142 of theConstitution of India to bring an end to it. [Paras 14, 19 and21][174-E; 175-G; 176-C]

C3. Not only is the continuity of the marriage in the presentcase is fruitless, but it is causing further emotional trauma anddisturbance to both the parties. This is even reflected in themanner of responses of the parties in the Court. The sooner thiscomes to an end, the better it would be, for both the parties.[Para 20][175-G; 176-A]D

4. An end to this marriage would permit the parties to gotheir own way in life after having spent two decades battling eachother, and there can always be hope, even at this age, for betterlife, if not together, separately. Thus, exercising jurisdiction underArticle 142 of the Constitution of India, decree of divorce isEgranted and the marriage inter se the parties is dissolved forthwith.[Paras 22 and 23][176-D-E]

7. The maintenance of Rs.7,500 per month should becontinued to be paid by the appellant to the respondent, and it isopen for the parties to move appropriate proceedings for eitherFenhancement of this maintenance or reduction and cessationthereof. We only hope that this aspect can also be reconciledbetween the parties once decree of divorce is granted.[Para 24][176-F-G]

R. Srinivas Kumar v. R. Shametha (2019) 9 SCC 409 –Grelied on.

Case Law Reference

(2019) 9 SCC 409

relied on.Para 19

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9318of 2014.

From the Judgment and Order dated 10.02.2011 of the High Courtof Punjab & Haryana at Chandigarh in FAO No. 90-M of 2010(O&M)

Manoj Swarup, Sr. Adv., Santosh Mishra, Neelmani Pant, MukulKumar, Advs. for the Appellant.

Respondent-in-person.

The Judgment of the Court was delivered by

SANJAY KISHAN KAUL, J.

1. Marriages are said to be made in heaven. They are broken onearth. We are faced with scenario where for the better part of almosttwo decades, the parties before us, who are husband and wife, havebeen engaged in multifarious litigation, including divorce proceeding,which forms subject matter of the appeal before us.

2. The marriage between the parties was solemnized at Jalandharaccording to Hindu rites on 23.4.2000, where apparently the family ofthe appellant was based. The family of the respondent is stated to havebeen based in Canada. It appears from the allegations that the constantperiod of stay of the parties was only for about two months, with therespondent moving back and forth, but, undisputedly on 24.5.2001, therespondent left for Canada to be with her family. It is the case of theappellant that this was not with his consent, while on the other hand it isthe case of the respondent that she was making an endeavour forimmigration of the appellant to Canada, and at his behest. The respondentdid not return to India till 16.8.2002, which was soon after she obtainedCanadian citizenship on 6.8.2002. It is also an admitted position thatduring this time, no papers were filed with the Canadian authorities forimmigration of the appellant and that the respondent puts the blame onincomplete papers sent by the appellant. As to why the papers could notbe completed over such long period of time is moot point. It doesappear that the respondent was apparently interested in Canadiancitizenship and only after having achieved that, came back to India.

3. The parties resided for barely two and half months together,when fight is stated to have broken out between the parties and therespondent again left the company of the appellant. There was an

Aintervention by the Panchayat and the parties were asked to resideseparately from their family, in rented accommodation, but that too didnot last for more than couple of months. The respondent is stated tohave left the common residence on 15.4.2003 after an altercation andthen again left for Canada.B4. The aforesaid resulted in the appellant filing petition for divorceunder Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the groundof cruelty, on 16.5.2003.

5. It is the appellant’s case that he had reasonable apprehensionabout the safety of his life and limb, and that the respondent was reallyCnot interested in living with the appellant in India, away from Canada.The loneliness and lack of co-habitation is stated to have caused physicaland mental torture. The appellant also sought to make out case thatthe respondent was suffering from depression and was on medication.Despite the appellant’s stable job in India, the respondent kept onpressuring him to shift to Canada, and despite his reluctance he hadDsigned the immigration papers in order to save his marriage. However,the papers were never submitted. In fact, he came to know that therespondent herself had reached Canada on improper travel documentsand, thus, could not apply for the appellant’s immigration. It is the furthersubmission of the appellant that all stridhan was taken away by theErespondent in April, 2001 itself. The appellant has alleged that therespondent was extremely suspicious and maligned his character in frontof his colleagues on the basis of alleged liaisons with his colleagues.6. The respondent naturally had her own version and claimed tohave travelled to Canada to meet his insistence of immigrating to Canada,Fthough she admitted that she had not taken any documents of the appellantwith her to Canada. She, in fact, blamed the appellant of abandoning herand made various other allegations including of dowry, physical assaultand extra-marital affairs. In respect of her continued stay in Canada sheclaims to have had an “insect bite”! In her testimony, she claims that anunconsented abortion took place when she was taken to doctor, thoughGit is an admitted position that she never made complaint in respectthereof. The version of the appellant is different, i.e., that she was takenfor general medical treatment, and was in fact never pregnant.

7. The Additional District Judge, Nawanshahr vide judgment andorder dated 9.12.2009, granted decree of divorce against which anH

appeal was filed before the High Court. The learned Single Judge videimpugned order dated 10.2.2011, however, set aside the decree of divorce.

8. We may note here that the trial court’s view was predicated oninter alia the continued character assassination by the respondent ofthe appellant, since she had neither been able to prove any extra-maritalaffair of the appellant, nor could she prove the factum of forcibletermination of pregnancy.

9. The learned Single Judge of the High Court, however, framedsix primary grounds to examine the case for dissolution of marriage. It isthe finding in the impugned order that while the parties did stay apart, nosense of anger could be made out to display any real discord betweenthe parties herein; though there were adjustment issues. The learnedJudge took note of the allegations regarding extra-marital affairs madeby one another, including the allegation of having child out of thewedlock, but came to the conclusion that serious imputation could not beattached to the same. The same were attributed to “inflamed passions”,which resulted in these grave suggestions; but were opined to not knockdown the fundamental walls of marriage. It was concluded that neitherparty had transgressed the limits in making imputations regarding eachother’s extra-marital affairs and, thus, this would not constitute cruelty.The aspect of physical assault alleged by the parties was also said not tohave been established.

10. Insofar as the aspect of irretrievable breakdown of the marriageis concerned, it was opined that since that did not form part of statutorylaw in India, that could not be treated as ground.

11. It is relevant to note that at various times there were effortsmade to mediate the dispute, which failed. Multiple efforts have beenmade even by this Court, but to no avail. In last ditch effort, the partieswere referred to counselor after one of us, with the consent of theparties, had taken the matter in chambers. The counselor/psychologist,however, opined that the separation of sixteen (16) years since 2003 hadmade both the parties bitter and cynical about the relationship and therewas no sign of any affection or bonding on either side. The partiesapparently had no history of pleasant time and only feelings of resentmentarising from the several court cases. There was also no family supportfrom either side. This would also be apparent, in our view, from the factthat there are stated to be multiple cases filed by both set of familymembers against the opposite party.

A12. We had, thus, no option but to hear the parties at some length.Despite our query of whether the respondent would like to be assistedby counsel, she refused the same and wanted to address the Courtpersonally, having acquired law degree herself.

13. We have given our deep thought to the matter and to theBdiscussions in the trial court judgment and the High Court judgment.Learned single Judge appears to have brushed aside the allegations ofextra marital affairs as also of child out of the wedlock as part of thewear and tear of marriage and as “inflamed passions.” The fact, however,remains that the relationship appears to have deteriorated to such anextent that both parties see little good in each other, an aspect supportedCby the counselor’s report; though the respondent insists that she wantsto stay with the appellant. In our view, this insistence is only to somehownot let decree of divorce be passed against the respondent. This is onlyto frustrate the endeavour of the appellant to get decree of divorce,completely losing sight of the fact that matrimonial relationships requireDadjustments from both sides, and willingness to stay together. Themere say of such willingness would not suffice.

14. It is no doubt true that the divorce legislations in India arebased on the ‘fault theory’, i.e., no party should take advantage of his/her own fault, and that the ground of irretrievable breakdown of marriage,Eas yet, has not been inserted in the divorce law, despite debate on thisaspect by the Law Commission in two reports.

15. We, however, find that there are various judicialpronouncements where this Court, in exercise of its powers under Article142 of the Constitution of India, has granted divorce on the ground ofFirretrievable breakdown of marriage; not only in cases where partiesultimately, before this Court, have agreed to do so but even otherwise.There is, thus, recognition of the futility of completely failed marriagebeing continued only on paper.

16. We have noticed above that all endeavours have been madeGto persuade the parties to live together, which have not succeeded. Forthat, it would not be appropriate to blame one or the other party, but thefact is that nothing remains in this marriage. The counselor’s report alsoopines so. The marriage is dead letter.

17. Much could be said about what the learned single Judge hasobserved as wear and tear of marriage and “inflamed passions”, butH

wisdom requires us to not traverse that same path, as we feel that, onthe ground of irretrievable breakdown of marriage, if this is not fit caseto grant divorce, what would be fit case!

18. No doubt there is no consent of the respondent. But there isalso, in real terms, no willingness of the parties, including of the respondentto live together. There are only bitter memories and angst against eachother. This angst has got extended in the case of the respondent tosomehow not permit the appellant to get decree of divorce and “livehis life”, forgetting that both parties would be able to live their lives in abetter manner, separately, as both parties suffer from an obsession withlegal proceedings, as reflected from the submissions before us.19. We may note that in recent judgment of this Court, inR. Srinivas Kumar v. R. Shametha,[1]to which one of us (SanjayKishan Kaul, J.) is party, divorce was granted on the ground ofirretrievable breakdown of marriage, after examining variousjudicial pronouncements. It has been noted that such powers areexercised not in routine, but in rare cases, in view of the absenceof legislation in this behalf, where it is found that marriage istotally unworkable, emotionally dead, beyond salvage and hasbroken down irretrievably. That was case where parties hadbeen living apart for the last twenty-two (22) years and re-union was found to be impossible. We are conscious of the factthat this Court has also extended caution from time to time on thisaspect, apart from noticing that it is only this Court which can doso, in exercise of its powers under Article 142 of the Constitutionof India. If parties agree, they can always go back to the trialcourt for motion by mutual consent, or this Court has exercisedjurisdiction at times to put the matter at rest quickly. But that hasnot been the only circumstance in which decree of divorce hasbeen granted by this Court. In numerous cases, where marriageis found to be dead letter, the Court has exercised its extraordinarypower under Article 142 of the Constitution of India to bring anend to it.

20. We do believe that not only is the continuity of this marriagefruitless, but it is causing further emotional trauma and disturbanceto both the parties. This is even reflected in the manner of

responses of the parties in the Court. The sooner this comes to anend, the better it would be, for both the parties. Our only hope isthat with the end of these proceedings, which culminate in divorcebetween the parties, the two sides would see the senselessnessof continuing other legal proceedings and make an endeavour toeven bring those to an end.

21. The provisions of Article 142 of the Constitution provide aunique power to the Supreme Court, to do “complete justice” betweenthe parties, i.e., where at times law or statute may not provide remedy,Cthe Court can extend itself to put quietus to dispute in mannerwhich would befit the facts of the case. It is with this objective that wefind 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 permitthe parties to go their own way in life after having spent two decadesDbattling each other, and there can always be hope, even at this age, for abetter life, if not together, separately.

23. We, thus, exercising our jurisdiction under Article 142 of theConstitution of India, grant decree of divorce and dissolve the marriageinter se the parties forthwith.

24. The respondent is qualified lawyer; she claims to have notgone back to her family in Canada, but stayed in India only to battle thislitigation. The respondent is being paid Rs.7,500 per month by theappellant. With law degree she would be able to meet her needs better,though she claims that her sole concentration has been on the inter seFdispute. Be that as it may, we are of the view that the maintenance ofRs.7,500 per month should be continued to be paid by the appellant tothe respondent, and it is open for the parties to move appropriateproceedings for either enhancement of this maintenance or reductionand cessation thereof. We only hope that this aspect can also bereconciled between the parties once decree of divorce is granted.

25. The appeal is allowed leaving the parties to bear their owncosts.

Kalpana K. Tripathy