Reportable

IN THE SUPREME COURT OF INDIA CIVILAPPELLATE JURISDICTION

CIVIL APPEAL NO.9318 OF 2014

MUNISH KAKKAR … Appellant

VERSUS

NIDHI KAKKAR …Respondent

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. Marriages are said to  be made in heaven.   They are  broken on

earth.  We are faced with a scenario where for the better part of almost

two decades, the parties before us, who are husband and wife, have been

engaged in multifarious litigation, including a divorce proceeding, which

forms subject matter of the appeal before us.

2. The  marriage  between  the  parties  was  solemnized  at  Jalandhar

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according to Hindu rites on 23.4.2000, where apparently the family of the

appellant was based.  The family of the respondent is stated to have been

based in Canada.  It appears from the allegations that the constant period

of stay of the parties was only for about two months, with the respondent

moving back and forth, but, undisputedly on 24.5.2001, the respondent

left for Canada to be with her family.  It is the case of the appellant that

this was not with his consent, while on the other hand it is the case of the

respondent  that  she was making an endeavour  for  immigration of  the

appellant to Canada, and at his behest.  The respondent did not return to

India  till  16.8.2002,  which  was  soon  after  she  obtained  Canadian

citizenship on 6.8.2002.  It is also an admitted position that during this

time, no papers were filed with the Canadian authorities for immigration

of the appellant and that the respondent puts the blame on incomplete

papers  sent  by  the  appellant.   As  to  why  the  papers  could  not  be

completed over such a long period of time is a moot point.  It does appear

that the respondent was apparently interested in Canadian citizenship and

only after having achieved that, came back to India.

3. The  parties  resided  for  barely  two and  a  half  months  together,

when a fight is stated to have broken out between the parties and the

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respondent  again  left  the  company  of  the  appellant.   There  was  an

intervention  by  the  Panchayat and  the  parties  were  asked  to  reside

separately from their family, in a rented accommodation, but that too did

not last for more than a couple of months.  The respondent is stated to

have left  the common residence on 15.4.2003 after  an altercation and

then again left for Canada.

4. The aforesaid resulted in the appellant filing a petition for divorce

under Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the ground

of cruelty, on 16.5.2003.

5. It is the appellant’s case that he had reasonable apprehension about

the safety of his life and limb, and that the respondent was really not

interested in living with the appellant in India, away from Canada.  The

loneliness and lack of co-habitation is stated to have caused physical and

mental torture.  The appellant also sought to make out a case that the

respondent  was  suffering  from  depression  and  was  on  medication.

Despite  the  appellant’s  stable  job  in  India,  the  respondent  kept  on

pressuring  him to  shift  to  Canada,  and  despite  his  reluctance  he  had

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signed the immigration papers in order to save his marriage.  However,

the  papers  were never  submitted.   In  fact,  he  came to know that  the

respondent  herself  had reached Canada on improper  travel  documents

and,  thus,  could  not  apply  for  the  appellant’s  immigration.   It  is  the

further submission of the appellant that all  stridhan was taken away by

the respondent in April, 2001 itself.  The appellant has alleged that the

respondent was extremely suspicious and maligned his character in front

of his colleagues on the basis of alleged liaisons with his colleagues.

6. The respondent naturally had her own version and claimed to have

travelled  to  Canada  to  meet  his  insistence  of  immigrating  to  Canada,

though  she  admitted  that  she  had  not  taken  any  documents  of  the

appellant  with  her  to  Canada.   She,  in  fact,  blamed  the  appellant  of

abandoning her and made various other allegations including of dowry,

physical assault and extra-marital affairs.  In respect of her continued stay

in Canada she claims to have had an “insect bite”!  In her testimony, she

claims that an unconsented abortion took place when she was taken to a

doctor, though it is an admitted position that she never made a complaint

in respect thereof.  The version of the appellant is different, i.e., that she

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was taken for general medical treatment, and was in fact never pregnant.

7. The  Additional  District  Judge,  Nawanshahr  vide judgment  and

order  dated  9.12.2009,  granted  a  decree  of  divorce  against  which  an

appeal was filed before the High Court.  The learned Single Judge vide

impugned  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 on

inter alia the continued character assassination by the respondent of the

appellant,  since  she  had  neither  been  able  to  prove  any  extra-marital

affair  of  the  appellant,  nor  could  she  prove  the  factum  of  forcible

termination of pregnancy.

9. The learned Single Judge of the High Court, however, framed six

primary grounds to examine the case for dissolution of marriage.  It is the

finding in the impugned order that while the parties did stay apart, no

sense of anger could be made out to display any real discord between the

parties herein; though there were adjustment issues.  The learned Judge

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took note of the allegations regarding extra-marital affairs made by one

another, including the allegation of having a child out of the wedlock, but

came to the conclusion that serious imputation could not be attached to

the  same.   The  same  were  attributed  to  “inflamed  passions”,  which

resulted in these grave suggestions; but were opined to not knock down

the fundamental walls of marriage.  It was concluded that neither party

had transgressed the limits in making imputations regarding each other’s

extra-marital  affairs  and,  thus,  this  would  not  constitute  cruelty.   The

aspect of physical assault alleged by the parties was also said not to have

been established.

10. Insofar as the aspect of irretrievable breakdown of the marriage is

concerned, it was opined that since that did not form part of statutory law

in India, that could not be treated as a ground.

11. It is relevant to note that at various times there were efforts made

to mediate the dispute, which failed.  Multiple efforts have been made

even by this Court, but to no avail.  In a last ditch effort, the parties were

referred to a counselor after one of us, with the consent of the parties, had

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taken  the  matter  in  chambers.   The  counselor/psychologist,  however,

opined that the separation of sixteen (16) years since 2003 had made both

the parties bitter and cynical about the relationship and there was no sign

of any affection or bonding on either side.  The parties apparently had no

history of pleasant time and only feelings of resentment arising from the

several court cases.  There was also no family support from either side.

This would also be apparent, in our view, from the fact that there are

stated to be multiple cases filed by both set of family members against

the opposite party.

12. We had,  thus,  no option but to hear the parties at  some length.

Despite our query of whether the respondent would like to be assisted by

a  counsel,  she  refused  the  same  and  wanted  to  address  the  Court

personally, having acquired a law degree herself.

13. We  have  given  our  deep  thought  to  the  matter  and  to  the

discussions  in  the  trial  court  judgment  and the  High Court  judgment.

Learned single Judge appears to have brushed aside the allegations of

extra marital affairs as also of a child out of the wedlock as part of the

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wear and tear of marriage and as “inflamed passions.”  The fact, however,

remains  that  the  relationship  appears  to  have  deteriorated  to  such  an

extent that both parties see little good in each other, an aspect supported

by the counselor’s report; though the respondent insists that she wants to

stay with the appellant.  In our view, this insistence is only to somehow

not let a decree of divorce be passed against the respondent.  This is only

to frustrate the endeavour of  the appellant  to get a decree of  divorce,

completely losing sight of the fact that matrimonial relationships require

adjustments  from both sides,  and a  willingness  to  stay together.   The

mere say of such willingness would not suffice.

14. It is no doubt true that the divorce legislations in India are based 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, as yet,

has not been inserted in the divorce law, despite a debate on this aspect

by the Law Commission in two reports.

15. We, however, find that there are various judicial pronouncements

where  this  Court,  in  exercise  of  its  powers  under  Article  142  of  the

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Constitution of India, has granted divorce on the ground of irretrievable

breakdown of marriage; not only in cases where parties ultimately, before

this  Court,  have agreed to  do so but  even otherwise.   There is,  thus,

recognition of the futility of a completely failed marriage being continued

only on paper.

16. We have noticed  above  that  all  endeavours  have  been made to

persuade the parties to live together, which have not succeeded.  For that,

it would not be appropriate to blame one or the other party, but the fact is

that nothing remains in this marriage.  The counselor’s report also opines

so.  The marriage is a dead letter.

17. Much  could  be  said  about  what  the  learned  single  Judge  has

observed  as  wear  and  tear  of  marriage  and  “inflamed  passions”,  but

wisdom requires us to not traverse that same path, as we feel that, on the

ground of irretrievable breakdown of marriage, if this is not a fit case to

grant divorce, what would be a fit case!

18. No doubt there is no consent of the respondent.  But there is also,

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in real terms, no willingness of the parties, including of the respondent to

live together.   There  are  only bitter  memories and angst  against  each

other.   This  angst  has  got  extended  in  the  case  of  the  respondent  to

somehow not permit the appellant to get a decree of divorce and “live his

life”, forgetting that both parties would be able to live their lives in a

better manner, separately, as both parties suffer from an obsession with

legal proceedings, as reflected from the submissions before us.

19. We may note that in a recent judgment of this Court, in R. Srinivas

Kumar v. R. Shametha,1to which one of us (Sanjay Kishan Kaul, J.) is a

party, divorce was granted on the ground of irretrievable breakdown of

marriage, after examining various judicial pronouncements.  It has been

noted that such powers are exercised not in routine, but in rare cases, in

view of the absence of legislation in this behalf, where it is found that a

marriage is  totally unworkable,  emotionally dead,  beyond salvage and

has broken down irretrievably.  That was a case where parties had been

living apart for the last twenty-two (22) years and a re-union was found

to be impossible.  We are conscious of the fact that this Court has also

extended caution from time to time on this aspect, apart from noticing

1(2019) 9 SCC 409

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that it is only this Court which can do so, in exercise of its powers under

Article 142 of the Constitution of India.  If parties agree, they can always

go back to the trial court for a motion by mutual consent, or this Court

has exercised jurisdiction at times to put the matter at rest quickly.  But

that has not been the only circumstance in which a decree of divorce has

been granted by this Court. In numerous cases, where a marriage is found

to be a dead letter, the Court has exercised its extraordinary power under

Article 142 of the Constitution of India to bring an end to it.

20. We  do  believe  that  not  only  is  the  continuity  of  this  marriage

fruitless, but it  is  causing further emotional trauma and disturbance to

both the parties.  This is even reflected in the manner of responses of the

parties in the Court.  The sooner this comes to an end, the better it would

be,  for  both the parties.   Our only hope is that  with the end of these

proceedings,  which culminate  in  divorce between the  parties,  the two

sides would see the senselessness of continuing other legal proceedings

and make an endeavour to even bring those to an end.

21. The provisions of Article 142 of the Constitution provide a unique

power  to  the  Supreme  Court,  to  do  “complete  justice”  between  the

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parties, i.e., where at times law or statute may not provide a remedy, the

Court can extend itself to put a quietus to a dispute in a manner which

would befit the facts of the case.  It is with this objective that we find 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 permit the

parties to go their own way in life after having spent two decades battling

each other, and there can always be hope, even at this age, for a better

life, if not together, separately.

23. We,  thus,  exercising  our  jurisdiction  under  Article  142  of  the

Constitution of India, grant a decree of divorce and dissolve the marriage

inter se the parties forthwith.

24. The respondent is a qualified lawyer; she claims to have not gone

back  to  her  family  in  Canada,  but  stayed  in  India  only  to  battle  this

litigation.   The  respondent  is  being  paid  Rs.7,500  per  month  by  the

appellant.  With a law degree she would be able to meet her needs better,

though she claims that her sole concentration has been on the  inter se

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dispute.  Be that as it may, we are of the view that the maintenance of

Rs.7,500 per month should be continued to be paid by the appellant to the

respondent, and it is open for the parties to move appropriate proceedings

for either enhancement of this maintenance or reduction and cessation

thereof.  We only hope that this aspect can also be reconciled between the

parties once a decree of divorce is granted.

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

...……………………………J. [Sanjay Kishan Kaul]

...……………………………J. [K.M. Joseph]

New Delhi. December 17, 2019.

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