R. SRINIVAS KUMAR versus R. SHAMETHA

[2019] 12 S.C.R. 873

R. SRINIVAS KUMAR

R. SHAMETHA

(Civil Appeal No. 4696 of 2013)

OCTOBER 04, 2019

[SANJAY KISHAN KAUL AND M. R. SHAH, JJ.]

Hindu Marriage Act, 1955:

s. 13(1)– Petition under – On the grounds mentioned in s.13(1)(ia) and (ib) – Also sought divorce on the ground ofirretrievable breakdown of marriage – Refused by courts below –In appeal to Supreme Court sought divorce on the ground ofirretrievable breakdown of marriage in exercise of powers underArt. 142 of the Constitution – Held: Supreme Court in exercise ofits inherent powers u/Art. 142 can dissolve the marriage on theground of irretrievable breakdown of marriage, even if the factsof the case do not provide ground in law on which divorce couldbe granted – In the facts of the case, the marriage is dissolved onthe grounds of irretrievable breakdown of marriage in exerciseof power u/Art. 142 on the condition that husband pays apermanent alimony quantified at Rs. twenty lakhs to the wife –Constitution of India – Art. 142.

Allowing the appeal, the Court

HELD: 1. In exercise of powers under Article 142 of theConstitution of India, the marriage can be dissolved on theground of irretrievable breakdown of marriage. If both the partiesto the marriage agree for separation permanently and/or consentfor divorce, in that case, certainly both the parties can move thecompetent court for decree of divorce by mutual consent. Onlyin case where one of the parties do not agree and giveconsent, the powers under Article 142 of the Constitution ofIndia are required to be invoked to do the substantial Justicebetween the parties, considering the facts and circumstances ofthe case. However, at the same time, the interest of the wife isalso required to be protected financially so that she may not have

CDE

FGH

Ato suffer financially in future and she may not have to dependupon others. [Para 6] [879-C-F]

2. The Supreme Court has exercised its inherent powersunder Article 142 of the Constitution of India for dissolution ofa marriage where the Court finds that the marriage is totallyBunworkable, emotionally dead, beyond salvage and has brokendown irretrievably, even if the facts of the case do not providea ground in law on which the divorce could be granted. In thepresent case, admittedly, the appellant-husband and therespondent-wife have been living separately for more than 22years and it will not be possible for the parties to live together.CTherefore, while protecting the interest of the respondent-wifeto compensate her by way of lump sum permanent alimony, thisis fit case to exercise the powers under Article 142 of theConstitution of India and to dissolve the marriage between theparties. [Para 7] [879-F-H; 880-A]

3. The application for divorce filed by the appellant-husband for dissolution of marriage is hereby allowed. Themarriage between the appellant-husband and the respondent-wifeis ordered to be dissolved in exercise of powers under Article142 of the Constitution of India on the condition and as agreedEby the counsel for the appellant-husband that the appellant-husband shall pay to the respondent-wife lump sum permanentalimony, quantified at Rs.20,00,000/- (Rupees Twenty Lakhs) tobe paid directly to the respondent-wife by way of demand draftwithin period of eight weeks. Till the permanent alimony asFabove is paid to the respondent-wife, the appellant-husband tocontinue to pay the maintenance as being paid to her. [Para 8][880-B-C]

Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 :[2006] 3 SCR 53 ;Samar Ghosh v. Jaya Ghosh(2007)G4 SCC 511 : [2007] 4 SCR 428 ;Sukhendu Das v.Rita Mukherjee (2017) 9 SCC 632 – relied on.

Durga Prasad Tripathy v. Arundathi Tripathy (2005)7 SCC 353 : [2005] 2 Suppl. SCR 833 ;SanghamitraGhosh v. Kajal Kumar Ghosh (2007) 2 SCC 220 :H[2006] 9 Suppl. SCR 156 ; K. Srinivas Rao v. D.A.

R. SRINIVAS KUMAR v. R. SHAMETHA

Deepa (2013) 5 SCC 226 : [2013] 2 SCR 126 ;Chetna Dass v. Kamla Devi (2001) 4 SCC 250 : [2001]3 SCR 20 ; Vishnu Dutt Sharma v. Manju Sharma(2009) 6 SCC 379 : [2009] 3 SCR 891 ; HiteshBhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234 :[2001] 6 SCR 118 ; Darshan Gupta v. Radhika Gupta(2013) 9 SCC 1 : [2013] 10 SCR 937 ; Manish Goelv. Rohini Goel(2010) 4 SCC 393 : [2010] 2 SCR 414– referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4696of 2013.

From the Judgment and Order 06.02.2012 of the High Court ofJudicature. Andhra Pradesh at Hyderabad in C.M.A. No. 4142 of 2003.

Guru Krishna Kumar, Sr. Adv., A. Karthik, Ms. Shruta Gopalan,Ankit Jaglan, Advs. for the Appellant.

Jayant Kumar Mehta, Ms. Anu Shrivastava, Advs. for theGRespondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 06.02.2012 passed in C.M.A. No. 4142 of 2003 by

Athe High Court of Judicature Andhra Pradesh at Hyderabad, by whichthe High Court has dismissed the said appeal preferred by the appellant-husband and has confirmed the judgment and order passed by thelearned Family Court refusing to pass decree of divorce against therespondent-wife, the appellant-husband has preferred the presentappeal.B

2. That the marriage of the appellant and the respondent tookplace on 09.05.1993. That out of the said wedlock, the respondent gavebirth to male child on 29.08.1995. It appears that there weredifferences of opinion between the parties and according to theappellant-husband, cruelty was meted out to him. Up to 1997, many aCtimes, the respondent-wife stayed at her parental house. The appellant-husband filed divorce petition in the year 1999 being O.P. No. 157 of1999 before the Family Court at Hyderabad. That the said petition wasfiled for decree of divorce against the respondent-wife under Section13(1) (ia) and (ib) of the Hindu Marriage Act, 1955. That the learnedDFamily Court dismissed the said divorce petition by observing and holdingthat the appellant-husband has failed to prove the cruelty by therespondent-wife. The Family Court also refused to pass decree ofdivorce on the ground of irretrievable breakdown of marriage.

2.1 Feeling aggrieved and dissatisfied with the judgment and orderEpassed by the Family Court at Hyderabad dated 04.09.2003 in O.P. No.157 of 1999 dismissing the divorce petition, the appellant-husbandpreferred an appeal before the High Court. Before the High Court also,the appellant-husband sought decree of divorce on the ground ofirretrievable breakdown of marriage. By the impugned judgment andorder, the High Court has dismissed the said appeal. Hence, theFappellant-husband is before this Court by way of the present appeal.

3. Shri Guru Krishna Kumar, learned Senior Advocate appearingon behalf of the appellant-husband has made strenuous efforts to upsetthe findings recorded by both the courts below on cruelty. In thealternative, it is vehemently submitted by Shri Guru Krishna Kumar,Glearned Senior Advocate appearing on behalf of the appellant-husbandthat both the appellant-husband and the respondent-wife are residingseparately since last 22 years and that it is impossible to save themarriage and that there is no chance of marriage surviving and it isbroken beyond repair. It is submitted that therefore as there isHirretrievable breakdown of marriage it is in the fitness of the things to

dissolve the marriage even in exercise of the powers under Article 142of the Constitution of India and to do substantial justice to the parties.

3.1 In support of his alternative submission to dissolve themarriage on the ground of irretrievable breakdown of marriage, learnedSenior Advocate has heavily relied upon the following decisions of thisCourt, Durga Prasad Tripathy v. Arundathi Tripathy (2005) 7 SCC353; Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558; SanghamitraGhosh v. Kajal Kumar Ghosh (2007) 2 SCC 220; Samar Ghosh v.Jaya Ghosh (2007) 4 SCC 511; K. Srinivas Rao v. D.A. Deepa(2013) 5 SCC 226; and Sukhendu Das v. Rita Mukherjee (2017)9 SCC 632.

3.2 Shri Guru Krishna Kumar, learned Senior Advocate appearingon behalf of the appellant-husband has also stated at the Bar that theappellant-husband is ready and willing to pay reasonable permanentalimony to the respondent-wife in case decree of dissolution ofmarriage is granted to the appellant-husband.

4. The present appeal is vehemently opposed by Shri JayantKumar Mehta, learned Advocate appearing on behalf of the respondent-wife. He has vehemently submitted that this is not fit case to dissolvethe marriage between the appellant and the respondent on the groundof irretrievable breakdown of marriage, in exercise of the powers underArticle 142 of the Constitution of India.

4.1 It is vehemently submitted by the learned Advocate appearingon behalf of the respondent-wife that decree of divorce cannot begranted on the ground of irretrievable breakdown of marriage, if eitherof the parties is not willing and has not consented to such dissolution.It is submitted that only in case where both the parties to the marriageagree and/or give consent, the marriage can be dissolved and decreeof divorce can be passed on the ground of irretrievable breakdown ofmarriage.

4.2 Making the above submissions and relying upon the followingdecisions of this Court in the cases of Chetna Dass v. Kamla Devi(2001 4 SCC 250; Vishnu Dutt Sharma v. Manju Sharma (2009)6 SCC 379; Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC234; Darshan Gupta v. Radhika Gupta (2013) 9 SCC 1; andManish Goel v. Rohini Goel (2010) 4 SCC 393, it is prayed to dismissthe present appeal.

A5. We have heard the learned counsel for the respective partiesat length.

5.1 At the outset, it is required to be noted and does not seem tobe in dispute that since last 22 years both the appellant-husband andthe respondent-wife are residing separately. It also appears that allBefforts to continue the marriage have failed and there is no possibilityof re-union because of the strained relations between the parties. Thus,it appears that marriage between the appellant-husband and therespondent-wife has irretrievably broken down. In the case of HiteshBhatnagar (supra), it is noted by this Court that Courts can dissolvea marriage as irretrievably broken down only when it is impossible toCsave the marriage and all efforts are made in that regard and whenthe Court is convinced beyond any doubt that there is actually no chanceof the marriage surviving and it is broken beyond repair.

5.2 In the case of Naveen Kohli (supra), three Judge Benchof this Court has observed as under:D

“74.……Once the marriage has broken down beyond repair, itwould be unrealistic for the law not to take notice of that fact,and it would be harmful to society and injurious to the interestsof the parties. Where there has been long period of continuousseparation, it may fairly be surmised that the matrimonial bondis beyond repair. The marriage becomes fiction, thoughsupported by legal tie. By refusing to sever that tie the law insuch cases does not serve the sanctity of marriage; on thecontrary, it shows scant regard for the feelings and emotions ofthe parties.

85. Undoubtedly, it is the obligation of the court and all concernedthat the marriage status should, as far as possible, as long aspossible and whenever possible, be maintained, but when themarriage is totally dead, in that event, nothing is gained by tryingto keep the parties tied forever to marriage which in fact hasGceased to exist….

86. In view of the fact that the parties have been living separatelyfor more than 10 years and very large number ofaforementioned criminal and civil proceedings have been initiatedby the respondent against the appellant and some proceedingshave been initiated by the appellant against the respondent, the

matrimonial bond between the parties is beyond repair. Amarriage between the parties is only in name. The marriage hasbeen wrecked beyond the hope of salvage, public interest andinterest of all concerned lies in the recognition of he fact and todeclare defunct de jure what is already defunct de facto….”

[emphasis supplied]

similar view has been expressed in the case of Samar Ghosh(supra).

In the similar set of facts and circumstances of the case, thisCourt in the case of Sukhendu Das (supra) has directed to dissolvethe marriage on the ground of irretrievable breakdown of marriage, inexercise of powers under Article 142 of the Constitution of India.

6. Now so far as submission on behalf of the respondent-wifethat unless there is consent by both the parties, even in exercise ofpowers under Article 142 of the Constitution of India the marriagecannot be dissolved on the ground of irretrievable breakdown ofmarriage is concerned, the aforesaid has no substance. If both theparties to the marriage agree for separation permanently and/or consentfor divorce, in that case, certainly both the parties can move thecompetent court for decree of divorce by mutual consent. Only in acase where one of the parties do not agree and give consent, only thenthe powers under Article 142 of the Constitution of India are requiredto be invoked to do the substantial Justice between the parties,considering the facts and circumstances of the case. However, at thesame time, the interest of the wife is also required to be protectedfinancially so that she may not have to suffer financially in future andshe may not have to depend upon others.

7. This Court, in series of judgments, has exercised its inherentpowers under Article 142 of the Constitution of India for dissolution ofa 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 ground in law on whichthe divorce could be granted. In the present case, admittedly, theappellant-husband and the respondent-wife have been living separatelyfor more than 22 years and it will not be possible for the parties to livetogether. Therefore, we are of the opinion that while protecting theinterest of the respondent-wife to compensate her by way of lump sumpermanent alimony, this is fit case to exercise the powers under Article

A142 of the Constitution of India and to dissolve the marriage betweenthe parties.

8. In view of the above and for the reasons stated above, theapplication for divorce filed by the appellant-husband for dissolution ofmarriage is hereby allowed. The marriage between the appellant-Bhusband and the respondent-wife is ordered to be dissolved in exerciseof powers under Article 142 of the Constitution of India on the conditionand as agreed by the learned Senior Advocate appearing on behalf ofthe appellant-husband that the appellant-husband shall pay to therespondent-wife lump sum permanent alimony, quantified atRs.20,00,000/- (Rupees Twenty Lakhs) to be paid directly to theCrespondent-wife by way of demand draft within period of eight weeksfrom today. Till the permanent alimony as above is paid to therespondent-wife, the appellant-husband to continue to pay themaintenance as being paid to her.