SIVASANKARAN versus SANTHIMEENAL

SIVASANKARAN

SANTHIMEENAL

(Civil Appeal Nos. 4984-4985 of 2021)

SEPTEMBER 13, 2021

[SANJAY KISHAN KAUL AND HRISHIKESH ROY, JJ.]

Hindu Law – Divorce – Cruelty – Subsequent conduct –Continued allegations and litigative proceedings – Irretrievablebreakdown of marriage – Parties living separately from the dateof marriage for almost 20 years – Appellant-husband hadremarried after grant of divorce by trial court – Divorce decreeset aside by appellate court – Held: The marriage never took offfrom the first day and was never consummated – Continuing actsof respondent-wife amounted to cruelty even if the same had notarisen as cause prior to institution of the divorce petition – Herconduct showed disintegration of marital unity and thusdisintegration of the marriage – All mediation efforts had failed –Divorce granted not only in exercise of powers u/Art. 142 of theConstitution on account of irretrievable breakdown of marriage,but also on account of cruelty u/s.13(1)(i-a) of the Hindu MarriageAct, 1955 in light of subsequent conduct of respondent-wife duringpendency of judicial proceedings at various stages – HinduMarriage Act, 1955 – s.13(1)(i-a) – Constitution of India, 1950 –Art. 142.

Hindu Law – Divorce – Cruelty – Mental cruelty – Wife filingmultiple cases in courts against the husband – Held: Such repeatedfiling of cases itself amounts to mental cruelty.

Hindu Law – Divorce – Irretrievable breakdown of marriageas ground for divorce – Legislature’s reluctance to introduceirretrievable breakdown as ground for divorce, even though theremay have been change in social norms over period of time –In appropriate cases, Supreme Court has granted decrees ofdivorce exercising its unique jurisdiction u/Art.142 of theConstitution, to do complete justice between the parties –Constitution of India, 1950 – Art. 142.

170SUPREME COURT REPORTS

ADisposing of the appeals, the CourtHELD: 1.1. Irretrievable breakdown of marriage as aground for divorce.

In appropriate cases, this Court has granted decrees ofdivorce exercising its unique jurisdiction under Article 142 ofBthe Constitution, to do complete justice between the parties.Such course is being followed in varied kinds of cases, forinstance where there are inter se allegations between the parties,in order to put quietus to the matter, the parties withdrawthese allegations and by mutual consent, this court itself grantsCdivorce. There are also cases where the parties accept that thereis an irretrievable breakdown of marriage and themselvesrequest for decree of divorce. One of the more difficultsituations is where, in the opinion of the court, there isirretrievable breakdown of marriage but only one of the partiesDis willing to acknowledge the same and accept divorce on thataccount, while the other side seeks to oppose it even if it meanscarrying on with the marriage. [Para 5][177-D-F]1.2. The ground which is often taken to oppose such adecree of divorce, apart from the absence of legislative mandate,Eis that the very institution of marriage is distinctly understoodin diferent countries. Under the Hindu Law, it is sacramental incharacter and is supposed to be an eternal union of two people- society at large does not accept divorce, given the heightenedimportance of marriage as social institution in India. Or atleast, it is far more difficult for women to retain social acceptanceFafter decree of divorce. This, coupled with the law’s failure toguarantee economic and financial security to women in the eventof breakdown of marriage; is stated to be the reason for thelegislature’s reluctance to introduce irretrievable breakdown asa ground for divorce – even though there may have been aGchange in social norms over period of time. Not all personscome from the same social background, and having uniformlegislative enactment is thus, stated to be difficult. It is in thesecircumstances that this court has been exercising its jurisdiction,despite such reservations, under Article 142 of the Constitution.H[Para 6][177-G-H; 178-A-B]

2.1. Pendency of reference before Constitution Bench:

There is reference to Constitution Bench of this Courtin Shilpa Sailesh v. Varun Sreenivasan, order dated 29-06-2016[T.P.(C) No.1118/2014] on two grounds – (a) what could be thebroad parameters for exercise of powers under Article 142 ofthe Constitution to dissolve the marriage between consentingparties without referring the parties to the family court to waitfor the period prescribed under Section 13-B of the HinduMarriage Act, and (b) whether the exercise of such jurisdictionunder Article 142 should be made at all or whether it should beleft to be determined on the facts of each case. However, thereference is limited to cases of divorce on mutual consent, andit raises the issue of whether the period prescribed unders.13-B of the Act is mandatory. [Paras 8, 9][178-F-G; 179-A-B]

2.2. The present case involves divorce petition filedunder s.13(1)(i-a) of the Hindu Marriage Act, and at no point oftime have both parties been amenable to divorce on mutualconsent. Lack of consent to divorce in the present matter is alsoapparent from the subsequent conduct of one of the parties. Thecase at hand is therefore not covered by the questions referredto the Constitution Bench in T.P. (C) No. 1118/2014. Further,despite the reference order dated 29.06.2016, there have beenvarious instances where this court has exercised its powers togrant divorce in such circumstances. [Paras 9 and 10][179-B-D]

2.3. Marriage is tie between two parties. If this tie isnot working under any circumstances, there is no purpose inpostponing the inevitability of the situation merely because ofthe pendency of the reference. [Para 14][183-C]

3.1. However, there are many subsequent circumstanceswhich have arisen in the present case. It is noticed that:

(a) The respondent has resorted to filing multiple casesin courts against the appellant. Such repeated filing of casesitself has been held in judicial pronouncements to amount tomental cruelty.

(b) Respondent filed W.P. No.20407/2013 praying for writof mandamus to initiate disciplinary action against the appellant,who was working as an Asst. Professor in the Department ofHistory in Government Arts College, Karur. This writ petitionwas dismissed on 6.6.2019.

B(c) The respondent sought some information from theCollege vide an RTI application dated 3.6.2013. She claimed theinformation received from the college was insufficient and filedan appeal.

(d) The respondent thereafter filed Writ Petition No. 9516/C2014. The Madras High Court opined, in terms of the judgmentdated 3.3.2016, that the respondent had raised unnecessaryqueries. Her queries sought information about her husband’sremarriage or whether he was living with somebody else, wellknown to her, and the proceedings were found to be an abuseof the process of the RTI Act.D

(e) The respondent made representations to the collegeauthorities seeking initiation of disciplinary proceedings againstthe appellant. It was not confined to even those collegeauthorities, but she made representations even to the Directorof Collegiate Education and the Secretary, Department of HigherEEducation (Tamil Nadu). Thus, she sought to somehow ensurethat the appellant loses his job. Filing of such complaints seekingremoval of one’s spouse from job has been opined as amountingto mental cruelty. [Para 15][183-D-G; 184-A-F]

3.2. Further, on having succeeded before the first appellateFcourt, the respondent lodged criminal complaint against theappellant under Section 494 IPC even though her appeal waspending before the High Court. She sought to array and accuseeven the persons who had attended the second marriage. TheHigh Court quashed the criminal proceedings in terms of orderGdated 18.2.2019. [Para 16][184-G; 185-A]

3.3. There are episodes of further harassment by therespondent even at the place of work of the appellant includinginsulting the appellant in front of students and professors, as isapparent from the judgment of the Trial Court. She is stated tohave threatened the appellant of physical harm in front of hisH

colleagues as per the testimony of PW.3 and complained to theappellant’s employer threatening to file criminal complaintagainst him (PW.3). The first appellate court somehow brushedaside these incidents as having not been fully established on aperception of wear and tear of marriage. The moot point is thatthe marriage has not taken off from its inception. There canhardly be any ‘wear and tear of marriage’ where parties havenot been living together for long period of time. The parties,undisputedly, never lived together even for day. [Para 17][185-B-C]

4.1. On facts, the marriage never took off from the firstday. The marriage was never consummated and the parties havebeen living separately from the date of marriage for almost 20years. The appellant remarried after 6 years of the marriage, 5years of which were spent in Trial Court proceedings. Themarriage took place soon after the decree of divorce wasgranted. All mediation efforts have failed. [Para 18][185-D-E]

4.2. The continuing acts of the respondent would amountto cruelty even if the same had not arisen as cause prior tothe institution of the petition. This conduct shows disintegrationof marital unity and thus disintegration of the marriage. In fact,there was no initial integration itself which would allowdisintegration afterwards. The fact that there have beencontinued allegations and litigative proceedings and that canamount to cruelty is an aspect taken note of by this court. [Para19][185-E-G]

4.3. This is one case where both the ground ofirretrievable breakdown of marriage and the ground of crueltyon account of subsequent facts would favour the grant of decreeof divorce in favour of the appellant. Thus, decree of divorcedissolving the marriage between the parties be passed not onlyin exercise of powers under Article 142 of the Constitution onaccount of irretrievable breakdown of marriage, but also onaccount of cruelty under Section 13(1)(i-a) of the Act in light ofthe subsequent conduct of the respondent during the pendencyof judicial proceedings at various stages. The decree of divorceis, accordingly, passed. Marriage stands dissolved. [Paras 20,21 and 22][186-A-C]

[2021] 6 S.C.R.

AK. Srinivas Rao v. DA Deepa (2013) 5 SCC 226 :[2013] 2 SCR 126 ; Naveen Kohli v. Neelu Kohli(2006) 4 SCC 558 : [2006] 3 SCR 53 ; VishwanathAgrawal v. Sarla Vishwanath Agrawal (2012) SCCOnline SC 489 ; A. Jayachandra v. Aneel Kaur, (2005)2 SCC 22 : [2004] 6 Suppl. SCR 599 ; Malathi RaviBv. B.V. Ravi, (2014) 7 SCC 640 : [2014] 6 SCR 218 –relied on.

Shilpa Sailesh v. Varun Sreenivasan [Order ofSupreme Court dated 29.06.2016] ; R. SrinivasKumar v. R. Shametha (2019) 9 SCC 409 : [2019] 12CSCR 873 ; Munish Kakkar v. Nidhi Kakkar (2020) 14SCC 657 ; Hitesh Bhatnagar v. Deepa Bhatnagar(2011) 5 SCC 234 : [2011] 6 SCR 118 ; Sukhendu Dasv. Rita Mukherjee (2017) 9 SCC 632 ; Parveen Mehtav. Inderjit Mehta (2002) 5 SCC 706 – referred to.

DCase Law Reference

From the Judgment and Order dated 25.02.2019 of the HighGCourt of Madras at Madurai Bench in Rev.Aplc (MD) Nos.193 and194 of 2018 in CMSA (MD) Nos.42 and 43 of 2013.

Ms. V. Mohana, Sr. Adv., S. Gowthaman, Advs. for the Appellant.

S. Nagamuthu, Sr. Adv., M. P. Parthiban, A. S. Vairawan,R.Sudhakaran, Ms. Shalini Mishra, T. Hari Hara Sudhan, Vikash G. R.,HAdvs. for the Respondent.

The Judgment of the Court was delivered by

SANJAY KISHAN KAUL, J.

1. The appellant-husband and the respondent-wife resolved totie the marital knot by solemnising their marriage as per the Hindu ritesand customs on 7.2.2002. It appears there was crash landing at thetake-of stage itself! The appellant claims that the respondent’s viewwas that she had been coerced into marrying the appellant without givingher consent, and left the marriage hall late at night and went toPudukkottai. An endeavour by the relatives of the appellant to persuadeher on the very next day to live with the appellant was not fruitful.The marriage was never consummated. As the marriage did not workout since its inception, the appellant issued notice dated 25.02.2002seeking divorce on the ground of cruelty under Section 13(1)(i-a) ofthe Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’).Surprisingly, the respondent filed petition for restitution of conjugalrights soon thereafter. Respondent’s case was that the appellant andhis family demanded dowry and, on being unable to oblige, the appellant’sbrothers took him away from the Respondent’s company, renderingconsummation of the marriage impossible. She claims that it was theappellant 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 onthe ground of irretrievable breakdown of marriage. The appellant didnot waste much time and got married second time on 23.3.2008 after6 days. The respondent preferred an appeal before the Addl. DistrictJudge, 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. Theappellate court set aside the decree of divorce while allowing thepetition for restitution of conjugal rights. The third round took placebefore the High Court in second appeal and, in terms of judgment dated14.9.2018, the decree of divorce granted by the trial court was restored.Thus, each stage of scrutiny took 5 years, and 15 years passed in thelitigation. In this period, the battle between the parties continued. Thisinter alia posed question mark on the status of the second marriageof the appellant. The matter, however, did not end at this. The respondentfiled review petition inter alia on the ground that it was not within

Athe jurisdiction of the High Court or the trial court to grant decree ofdivorce on the ground of irretrievable breakdown of marriage. The HighCourt noticed some aspects of alleged cruelty and dissolved themarriage by passing decree of divorce on the ground of irretrievablebreakdown of marriage. Thus, the review petition was allowed by theBimpugned order dated 25.2.2019, which has been assailed in the presentappeal.

2. The endeavour to find solution through mediation or anyacceptable solution between the parties did not succeed. According tothe learned counsel for the parties, the respondent was not willing toconcede the decree of divorce on any terms even though both theCparties are educated and living their separate lives now for almost twodecades. In fact, learned counsel for the respondent even stated thatshe was not disturbed by nor wanted to afect the status of the secondmarriage; but was unwilling to concede to scenario where hermarriage with the appellant came to an end even though in view of theDfinancial status of the parties no maintenance was being claimed. Inthese circumstances, we are called upon to take view of the matterin the given factual scenario and the subsequent developments, whichare material, during the pendency of the proceedings at various stagesof the judicial process.

E3. We have examined the rival contentions of the parties and wehave little doubt that this is one marriage which has not worked andcannot work.

This is not only on account of the fact that the appellant hasmarried second time but also because the parties are so troubled byFeach 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 andwas always willing to live with him.

4. Insofar as irretrievable breakdown of marriage is concerned,no doubt, it does not exist as ground of divorce under the Act. TheGissue has been debated by the Law Commission in its various reports.Breakdown of marriage was incidentally considered by the LawCommission in its 59[th] report (1974), but the Commission made nospecific recommendations in this regard. Thereafter in its 71[st] report(1978), the Law Commission departed from the fault theory of divorceto recognise situations where marriage has completely broken downHand there is no possibility of reconciliation. Neither party need

individually be at fault for such breakdown of the marriage – it maybe the result of prolonged separation, clash of personalities, orincompatibility of the couple. As the Law Commission pithily noted, suchmarriages are ‘merely shell out of which the substance is gone’. Forsuch situations, the Commission recommended that the law be amendedto provide for ‘irretrievable breakdown of marriage’ as an additionalground of divorce. This recommendation was reiterated by the LawCommission in its 217[th] Report in 2010, after undertaking suo motostudy of the legal issues involved. So far, the Law Commission’srecommendations have not been implemented. In 2010, the governmentintroduced the Marriage Laws (Amendment) Bill, 2010, which inter aliaproposed to add irretrievable breakdown of marriage as new groundfor divorce in both the Hindu Marriage Act, 1955 and the SpecialMarriage Act, 1954. After receiving suggestions from relevantstakeholders, the bill was amended and re- introduced as the MarriageLaws (Amendment) Bill, 2013. This bill was never passed.5. The result is that, in appropriate cases, this court has granteddecrees of divorce exercising its unique jurisdiction under Article 142of the Constitution of India, to do complete justice between the parties.Such course is being followed in varied kinds of cases, for instancewhere there are inter se allegations between the parties, in order toput quietus to the matter, the parties withdraw these allegations andby mutual consent, this court itself grants divorce. There are also caseswhere the parties accept that there is an irretrievable breakdown ofmarriage and themselves request for decree of divorce. One of themore difficult situations is where, in the opinion of the court, there isirretrievable breakdown of marriage but only one of the parties is willingto acknowledge the same and accept divorce on that account, whilethe other side seeks to oppose it even if it means carrying on with themarriage.

6. The ground which is often taken to oppose such decree ofdivorce, apart from the absence of legislative mandate, is that the veryinstitution of marriage is distinctly understood in diferent countries. Underthe Hindu Law, it is sacramental in character and is supposed to bean eternal union of two people - society at large does not accept divorce,given the heightened importance of marriage as social institution inIndia. Or at least, it is far more difficult for women to retain socialacceptance after decree of divorce. This, coupled with the law’s failure

Ato guarantee economic and financial security to women in the event ofa breakdown of marriage; is stated to be the reason for the legislature’sreluctance to introduce irretrievable breakdown as ground for divorce– even though there may have been change in social norms over aperiod of time. Not all persons come from the same social background,and having uniform legislative enactment is thus, stated to be difficult.BIt is in these circumstances that this court has been exercising itsjurisdiction, despite such reservations, under Article 142 of theConstitution of India.

7. marriage is more than seemingly simple union betweentwo individuals. As social institution, all marriages have legal, economic,Ccultural, and religious ramifications. The norms of marriage and thevarying degrees of legitimacy it may acquire are dictated by factorssuch as marriage and divorce laws, prevailing social norms, and religiousdictates. Functionally, marriages are seen as site for the propagationof social and cultural capital as they help in identifying kinship ties,Dregulating sexual behaviour, and consolidating property and socialprestige. Families are arranged on the idea of mutual expectation ofsupport and amity which is meant to be experienced and acknowledgedamongst its members. Once this amity breaks apart, the results can behighly devastating and stigmatizing. The primary efects of suchbreakdown are felt especially by women, who may find it hard toEguarantee the same degree of social adjustment and support that theyenjoyed while they were married.

8. We may notice that the aforesaid exercise has produceddiferent judicial thought processes which have resulted in referenceto Constitution Bench of this Court in T.P.(C) No.1118/2014.[1] TheFreference is on two grounds – (a) what could be the broad parametersfor exercise of powers under Article 142 of the Constitution to dissolvethe marriage between consenting partieswithout referring the partiesto the family court to wait for the period prescribed under Section 13-B of the Act, and (b) whether the exercise of such jurisdiction underGArticle 142 should be made at all or whether it should be left to bedetermined on the facts of each case.

9. In fact, this has been the bedrock of the submissions of thelearned counsel for the respondent who has strongly opposed any

endeavour by this court to exercise jurisdiction under Article 142 of theConstitution to give decree of divorce on account of irretrievablebreakdown 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 casesof divorce on mutual consent, and it raises the issue of whether theperiod prescribed under S. 13-B of the Act is mandatory. The presentcase involves divorce petition filed under S. 13(1)(i-a) of the Act, andat no point of time have both parties been amenable to divorce onmutual consent. Lack of consent to divorce in the present matter isalso apparent from the subsequent conduct of one of the parties, asdiscussed later in this judgment. The case at hand is therefore, in ouropinion, not covered by the questions referred to the Constitution Benchin T.P. (C) No. 1118/2014.

10. We may further note that despite the reference order dated29.06.2016, there have been various instances where this court hasexercised 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. NidhiKakkar[3]where it has been clearly opined that there is no necessity ofconsent by both the parties for exercise of powers under Article 142of the Constitution of India to dissolve the marriage on the ground ofirretrievable breakdown of marriage.

12. In R. Srinivas Kumar,[4]the parties had been living apart for22 years and all endeavours to save the marriage had failed. We maynote that in Hitesh Bhatnagar v. Deepa Bhatnagar[5], it was opinedby this Court that courts can dissolve marriage as irretrievably brokendown only when it is impossible to save the marriage, all eforts havebeen made in that regard, the Court is convinced beyond any doubt thatthere is actually no chance of the marriage surviving, and it is brokenbeyond repair. It could be useful to reproduce the observations madein para 5.2 to para 8 as under:

“5.2. In Naveen Kohli [Naveen Kohli v. Neelu Kohli, (2006)4 SCC 558] , three-Judge Bench of this Court has observedas under :

2 (2019) 9 SCC 409.

3 (2020) 14 SCC 657.

4 Supra

5 (2011) 5 SCC 234.

“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 ofcontinuous separation, it may fairly be surmised that thematrimonial bond is beyond repair. The marriage becomes afiction, though supported by legal tie. By refusing to severthat tie the law in such cases does not serve the sanctity ofmarriage; on the contrary, it shows scant regard for thefeelings and emotions of the parties.

85.Undoubtedly, it is the obligation of the court and allconcerned that the marriage status should, as far as possible,as long as possible and whenever possible, be maintained, butwhen the marriage is totally dead, in that event, nothing isgained by trying to keep the parties tied forever to marriagewhich in fact has ceased to exist. …

86.In view of the fact that the parties have been livingseparately for more than 10 years and very large numberof aforementioned criminal and civil proceedings have beeninitiated by the respondent against the appellant and someproceedings have been initiated by the appellant against therespondent, the matrimonial bond between the parties isbeyond repair. 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 therecognition of the fact and to declare defunct de jure what isalready defunct de facto.”

(emphasis supplied)

similar view has been expressed in Samar Ghosh [SamarGhosh v. Jaya Ghosh, (2007) 4 SCC 511].

6. In the similar set of facts and circumstances of the case, thisCourt in Sukhendu Das [Sukhendu Das v. Rita Mukherjee,(2017) 9 SCC 632 : (2017) 4 SCC (Civ) 714] has directed todissolve the marriage on the ground of irretrievable breakdownof marriage, in exercise of powers under Article 142 of theConstitution of India.

7. Now so far as submission on behalf of the respondent wifethat unless there is consent by both the parties, even in exerciseof powers under Article 142 of the Constitution of India themarriage cannot be dissolved on the ground of irretrievablebreakdown of marriage is concerned, the aforesaid has nosubstance. If both the parties to the marriage agree for separationpermanently and/or consent for divorce, in that case, certainlyboth the parties can move the competent court for decree ofdivorce by mutual consent. Only in case where one of theparties do not agree and give consent, only then the powers underArticle 142 of the Constitution of India are required to be invokedto do substantial justice between the parties, considering the factsand circumstances of the case. However, at the same time, theinterest of the wife is also required to be protected financiallyso that she may not have to sufer financially in future and shemay not have to depend upon others.

8. This Court, in series of judgments, has exercised its inherentpowers under Article 142 of the Constitution of India fordissolution of marriage where the Court finds that the marriageis totally unworkable, emotionally dead, beyond salvage and hasbroken down irretrievably, even if the facts of the case do notprovide ground in law on which the divorce could be granted.In the present 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.Therefore, we are of the opinion that while protecting the interestof the respondent wife to compensate her by way of lump sumpermanent alimony, this is fit case to exercise the powers underArticle 142 of the Constitution of India and to dissolve themarriage between the parties.”

13. In Munish Kakkar case[6], the following observations weremade:

“19. We may note that in recent judgment of this Court, inR. Srinivas Kumar v. R. Shametha, to which one of us (SanjayKishan Kaul, J.) is party, divorce was granted on the groundof irretrievable breakdown of marriage, after examining various

6 supra

judicial 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 are-union was found to be impossible. We are conscious of thefact that this Court has also extended caution from time to timeon this aspect, apart from noticing 1(2019) 9 SCC 409 10 that itis only this Court which can do so, in exercise of its powers underArticle 142 of the Constitution of India. If parties agree, theycan always go back to the trial court for motion by mutualconsent, or this Court has exercised jurisdiction at times to putthe matter at rest quickly. But that has not been the onlycircumstance in which decree of divorce has been granted bythis Court. In numerous cases, where marriage is found to bea dead letter, the Court has exercised its extraordinary powerunder Article 142 of the Constitution of India to bring an end toit.

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 ofEresponses of the parties in the Court. The sooner this comes toan end, the better it would be, for both the parties. Our only hopeis that with the end of these proceedings, which culminate indivorce between the parties, the two sides would see thesenselessness of continuing other legal proceedings and make anFendeavour to even 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”between the parties, i.e., where at times law or statute may notprovide remedy, the Court can extend itself to put quietus toGa dispute in manner which would befit the facts of the case. Itis with this objective that we find it appropriate to take recourseto 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 twodecades battling each other, and there can always be hope, even

at this age, for better life, if not together, separately. We, thus,exercising our jurisdiction under Article 142 of the Constitutionof India, grant decree of divorce and dissolve the marriage interse the parties forthwith.”

The aforesaid are two illustrative cases but there are many morespread over diferent periods of time.[7]

14. We are conscious that the Constitution Bench is examiningthe larger issue but that reference has been pending for the last fiveyears. Living together is not compulsory exercise. But marriage is atie between two parties. If this tie is not working under anycircumstances, we see no purpose in postponing the inevitability of thesituation merely because of the pendency of the reference.

15. However, the aforesaid is not the only issue under which thegiven facts of case can be examined. No doubt, the courts below didnot find adequate material to come to the conclusion that the appellantwas entitled to divorce on grounds of cruelty. However, there are manysubsequent circumstances which have arisen in the present case whichnecessitated the examination of this aspect. The question, thus, iswhether the respondent’s conduct after the initial trigger for divorceamounts to mental cruelty. On the basis of material on record, weendeavour to deal with this aspect and, in that behalf, we notice thefollowing:

(a) The respondent has resorted to filing multiple cases incourts against the appellant. It may be noticed that suchrepeated filing of cases itself has been held in judicialpronouncements to amount to mental cruelty.[8]

(b) Respondent filed W.P. No.20407/2013 praying for writof mandamus to initiate disciplinary action against theappellant, who was working as an Asst. Professor inthe Department of History in Government Arts College,Karur. This writ petition was dismissed on 6.6.2019.

7 Sukhendu Das v. Rita Mukherjee (2017) 9 SCC 632; Parveen Mehta v. InderjitMehta (2002) 5 SCC 706.

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.

A(c) The respondent sought some information from theCollege vide an RTI application dated 3.6.2013. Sheclaimed the information received from the college wasinsufficient and filed an appeal. She sought the servicerecords pertaining to the appellant, apart from otherdocuments such as the identity card issued to theBappellant under the Star Health Insurance Scheme andprior permission obtained by the appellant for purchasinga piece of property owned by the Tamil Nadu HousingBoard etc.

(d) The respondent thereafter filed Writ Petition No. 9516/C2014. Even the information already furnished to her wasagain sought for. The Madras High Court opined, interms of the judgment dated 3.3.2016, that therespondent had raised unnecessary queries. Her queriessought information about her husband’s remarriage orDwhether he was living with somebody else, well knownto her, and the proceedings were found to be an abuseof the process of the RTI Act.

(e) The respondent made representations to the collegeauthorities seeking initiation of disciplinary proceedingsEagainst the appellant. It was not confined to even thosecollege authorities, but she made representations evento the Director of Collegiate Education and theSecretary, Department of Higher Education (TamilNadu). She sought disciplinary proceedings against theappellant on account of the second marriage despite theFfact that the second marriage took place soon after thedecree of divorce. Thus, she sought to somehow ensurethat the appellant loses his job. Filing of such complaintsseeking removal of one’s spouse from job has beenopined as amounting to mental cruelty.[9]

G16. On having succeeded before the first appellate court, therespondent lodged criminal complaint against the appellant underSection 494 IPC even though her appeal was pending before the HighCourt. She sought to array and accuse even the persons who had

H9 K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.

attended the second marriage. The High Court quashed the criminalproceedings in terms of order dated 18.2.2019.

17. There are episodes of further harassment by the respondenteven at the place of work of the appellant including insulting theappellant in front of students and professors, as is apparent from thejudgment of the Trial Court. She is stated to have threatened theappellant of physical harm in front of his colleagues as per the testimonyof PW.3 and complained to the appellant’s employer threatening to filea criminal complaint against him (PW.3). The first appellate courtsomehow brushed aside these incidents as having not been fullyestablished on perception of wear and tear of marriage. The mootpoint is that the marriage has not taken of from its inception. Therecan hardly be any ‘wear and tear of marriage’ where parties have notbeen living together for long period of time. The parties, undisputedly,never lived together even for day.

18. We are, thus, faced with marriage which never took of fromthe first day. The marriage was never consummated and the partieshave been living separately from the date of marriage for almost 20years. The appellant remarried after 6 years of the marriage, 5 yearsof which were spent in Trial Court proceedings. The marriage took placesoon after the decree of divorce was granted. All mediation eforts havefailed.

19. In view of the legal position which we have referred toaforesaid, these continuing acts of the respondent would amount tocruelty even if the same had not arisen as cause prior to the institutionof the petition, as was found by the Trial Court. This conduct showsdisintegration of marital unity and thus disintegration of the marriage.[10]In fact, there was no initial integration itself which would allowdisintegration afterwards. The fact that there have been continuedallegations and litigative proceedings and that can amount to cruelty isan aspect taken note of by this court.[11] The marriage having not takenof 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.

10 A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22

11 Malathi Ravi v. B.V. Ravi, (2014) 7 SCC 640

A20. In the conspectus of all the aforesaid facts, this is one casewhere both the ground of irretrievable breakdown of marriage and theground of cruelty on account of subsequent facts would favour the grantof decree of divorce in favour of the appellant.

21. We are, thus, of the view that decree of divorce dissolvingBthe marriage between the parties be passed not only in exercise ofpowers under Article 142 of the Constitution of India on account ofirretrievable breakdown of marriage, but also on account of cruelty underSection 13(1)(i-a) of the Act in light of the subsequent conduct of therespondent during the pendency of judicial proceedings at variousstages.C

22. The decree of divorce is, accordingly, passed. Marriagestands dissolved.

23. The appeals are allowed in the aforesaid terms leaving theparties to bear their own costs.

Bibhuti Bhushan Bose

Appeals allowed.