Civil Appeal No. 4984-4985 of 2021
Date of Judgement:
13 September 2021
Justice Sanjay Kishan Kaul
Justice Hrishikesh Roy
Appellant – Sivasankaran
Respondent – Santhimeenal
Courts can exercise the unique jurisdiction conferred upon it by Article 142 of the Constitution to render justice. It shall do soonly when mediation or any other efforts have failed and the court is of the view that the marriage is irreparable, and if it is continued, it will affect both the parties or any one of the parties severely.
- Section 13(1)(i-a) of the Hindu Marriage Act, 1955 - Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnization of the marriage, treated the petitioner with cruelty.
- Section 13B of the Hindu Marriage Act, 1955 - Divorce by mutual consent.
- Article 142 of the Constitution of India - The Supreme Court, in the exercise of its jurisdiction, may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
- The marriage between the appellant (husband) and respondent (wife) was solemnised on 07.02.2002. The appellant claimed that the respondent ran away from the marriage hall on the night of same day as she was forced into this marriage without her consent. When he and his relative persuaded her to come back, it is stated that she refused to act. As the marriage was in limbo, the appellant issued a notice seeking divorce on 25.02.2002 citing cruelty under Section 13(1)(i-a) of the Hindu Marriage Act.
- The respondent filed a petition for restitution of conjugal rights. She alleged that she left from the marriage hall as the appellant and his relatives demanded dowry and started to mentally harass her and on being unable to oblige, the appellant was taken away from her company and alleged that appellant refused to cohabit for the same.
- After the appellant had filed for divorce,the Trial Court granted them divorce after almost 5 years. The appellant had remarried within 6 days of the Trial Court’s decree. The respondent preferred an appeal before the Additional District Judge, wherein the court set aside the decree of divorce and allowed the petition for restitution of conjugal rights. The appellant made an appeal before the Madras High Court where the divorce decree by the Trial Court was upheld on 14.09.2018. As this litigation was going on for 15 years, the validity of the appellant’s second marriage was impacted.
- The respondent filed a Revision Petition before the High Court contending that the Trial Court and the High Court does not have jurisdiction to grant divorce on the ground of irreparable breakdown of marriage. The High Court allowed this petition and hence the appellant came before the Supreme Court.
- The Apex Court, referring to Sukendhu Das v. Reetha Mukherji (2017) observed that it can dissolve the marriage if it is of the view, by taking into consideration the facts and circumstances of the case that the marriage cannot be retrieved and is irreparable, by the powers conferred to it under Article 142 of the Constitution.
- The respondent contended that consent of the parties is a prerequisite before employing the power conferred under Article 142. The Court, finding no merit in this, did not accept this contention because if there was consent from both the parties, it would not have come before this Court. Only when there is disagreement, where one party wishes for a divorce and other is against the idea, the Court will exercise its power under Article 142 of the Constitution.
- This Court, while acknowledging the findings of the lower court that there was no material evidence for providing divorce on the grounds of cruelty, noted that situation has progressed and subsequent events required careful analysis of the issue.
- It was observed that the respondent filed a Writ Petition seeking disciplinary action against the appellant who was employed as Assistant Professor in Government Arts College, Karur. She also filed multiple RTIs seeking information of the appellant. She filed another Writ Petition seeking information she already requested for earlier. She demanded disciplinary proceedings be taken against the appellant at his workplace. It was stated by the witness that she insulted the appellant before his students and also threatened him with physical harm.
- It was held that filing multiple cases amounts to mental cruelty.After careful consideration of facts and circumstances of the case, the court held that this is a case wherein it is both an irreparable marriage and cruelty would be a ground for the divorce in favour of the appellant.
- Can the courts exercise its power under Article 142 of the Constitution to grant divorce?
- If it has the power, is consent of both required while exercising the power?
- Article 142 of the Constitution provides that the Supreme Court can exercise its power may pass such order or decree for rendering justice in any matter pending before it. A brief perusal of the Article reveals that the scope of this Article is wide in nature of its coverage. The words ‘complete justice’ in the Article also include where the legislature is silent upon the subject-matter, the Courts shall pass necessary orders or decrees to render justice.
- Irretrievable breakdown of marriage is not provided as ground for divorce. This is because the prevailing social norms attached to an individual matrimonial life plays a major role in conduct of marital life. Under the Hindu law, act of divorce is looked down upon because of its importance as a social institution. The economic and social pressures which a woman faces are different after the end of the union. For the above stated reasons, even though the Law Commission recommended and analysed it, it could not be brought into effect by the legislature as marriage is considered as a sacrosanct institution.
- It is also noted that courts can exercise this power only when the marriage is irretrievably broken and cannot be brought back into life and all other efforts to repair them has failed. In this particular case, soon after the marriage, they got separated and did not cohabit for even one day and after the trial court’s decree, which was given after five years, the appellant was married for the second time and there was no effort for integration in the interregnum.
- In MunishKakkar v. Nidhi Kakkar (2020), the Court observed that these powers are exercised in routine but only on rarest occasion. In the absence of the Legislature, wherein the marriage is absolutely unworkable and is impossible for a reunion, the courts shall decide upon the same. If it was allowed to continue, it would cause trauma and difficulties in the life of both the parties.
- This court, citing K. Srinivasa Rao v. DA Deepa (2013), held that repetitive filing of cases can be ground for divorce under mental cruelty.
Scope of Article 142 of the Constitution is wide and the Courts can pass orders and decrees to render timely justice. If it is observed that there is no chance of repairing the marriage, there seems no point in stalling the issue as it be counterintuitive. Dissolving the marriage would allow the parties to move on and improve their lives. While doing so, the condition of the wife should be forgotten and necessary compensation should be paid by the husband. So, only in rarest occasion this court shall exercise its power to dissolve the marriage and render complete justice.
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Interesting Questions to Analyse
1. Under what condition or occasion, the Supreme Court can exercise its jurisdiction under Article 142 of the Constitution to dissolve a marriage?
2. If the divorce is prayed for by mutual consent of the parties, can the court exercise its power under Article 142 of the Constitution to dissolve the marriage before the stipulated time provided in Section 13B of the Hindu Marriage Act, 1955?