Marriage has irretrievably broken down: Top Court invokes Article 142 of Constitution, grants divorce to couple living separately for almost 13 years
Justices B.R. Gavai & Prashant Kumar Mishra [24-01-2024]

Read Order: PRAKASHCHANDRA JOSHI VERSUS KUNTAL PRAKASHCHANDRA JOSHI @ KUNTAL VISANJI SHAH [SC-SLP(C) No. 21139/2021]

Tulip Kanth

New Delhi, January 25, 2023: Considering the fact the husband and wife had been residing separately for almost 13 years and the wife was not even responding to the summons issued by the Courts, the Supreme Courthas granted the decree of divorce and opined that the marriage had irretrievably broken down.

The facts in brief were that the marriage between the appellant and respondent was solemnized in the year 2004 as per the rituals of Hindu religion after having spent eight years in courtship. They are Indian citizens by birth. However, they acquired citizenship of Canada for financial gain and were living a normal matrimonial life in Canada. A male child was born from the wedlock.

In the year 2011, the appellant started experiencing medical problems such as constant back and shoulder pain as well as skin related problems, especially during summer due to rag weed allergy resulting into sleepless nights and miserable days. During the period of recession in Canada, the appellant lost his job and the couple along with the minor child returned to India. The respondent after wilfully staying at her matrimonial home, joined her parental house. After some time, when the appellant asked the respondent to resume cohabitation, the respondent refused to do so. The respondent was interested in returning to Canada for a better future.

The appellant expressed his unwillingness to shift toCanada owing to his health issues. Various attempts were made by the family of the parties to resolve the matrimonial discord between them but to no avail. The respondent left for Canada with her son. Thereafter, the appellant tried to contact the respondent requesting her to come and cohabit with him. It was neither responded to nor complied with.

The appellant preferred a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights which remained uncontested on behalf of the respondent. The appellant withdrew the petition for restitution of conjugal rights and filed a divorce petition on the ground of cruelty and desertion. The petition proceeded ex parteand the Family Court dismissed the petition of the appellant. The appellant moved to the High Court but his appeal was dismissed by holding that no case had been made out by the appellant for seeking a decree of divorce on the ground of either cruelty or desertion. Hence, the appellant approached the Top Court.

The issue before the Division Bench of Justice B.R. Gavai and Justice Prashant Kumar Mishra was whether a decree for divorce can be granted for the reason that the marriage has irretrievably broken down.

It was noticed by the Bench that in the proceedings initiated by the appellant for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, the respondent did not appear despite receiving the summons. Similarly, in the divorce proceedings also the respondent failed to enter appearance despite service of notice in the Trial Court, High Court and Supreme Court as well.

“Thus, it is apparent that the respondent does not wish to continue the marital chord and is not responding to court summons much less the request made by the appellant”, it said while further adding, “On the basis of the above factual matrix the present appears to be a case of irretrievable breakdown of marriage.”

Reliance was also placed upon the Apex Court’s judgment in Shilpa Sailesh vs. VarubnSreenivasan, whereby it was held that the Supreme Court, in exercise of power under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown.

In order to accord satisfaction as to whether the present is a fit case for exercise of power under Article 142 (1) of the Constitution of India to dissolve the marriage on the ground of irretrievable breakdown, the Bench noticed that the parties have been residing separately since February, 2011 and there have been no contact whatsoever between them during this long period of almost 13 years.

“The respondent-wife is not even responding to the summons issued by the courts. It seems she is no longer interested in continuing the marital 10 relations with the appellant. Therefore, we have no hesitation in holding that the present is a case of irretrievable breakdown of marriage as there is no possibility of the couple staying together”, the Bench held while allowing the appeal and dissolving the marriage between the parties on the ground of irretrievable breakdown in exercise of powers under Article 142(1) of the Constitution of India.