SC passes decree of divorce not only in exercise of powers under Article 142 on account of irretrievable breakdown of marriage, but also on account of cruelty under Sec.13(1)(i-a) of Hindu Marriage Act

Read Judgment: Sivasankaran vs. Santhimeenal

Pankaj Bajpai

New Delhi, September 14, 2021: The Supreme Court has ruled that a decree of divorce dissolving the marriage between the parties be passed not only in exercise of powers under Article 142 of the Constitution of India on account of irretrievable breakdown of marriage, but also on account of cruelty u/s 13(1)(i-a) of the Hindu Marriage Act, 1955.

A Division Bench of Justice Sanjay Kishan Kaul and Justice Hrishikesh Roy observed that when the marriage has not taken off from its inception, there can hardly be any ‘wear and tear of marriage’ where parties have not been living together for a long period of time.

“We are faced with a marriage which never took off from the first day. The marriage was never consummated and the parties have been living separately from the date of marriage for almost 20 years. The appellant remarried after 6 years of the marriage, 5 years of which were spent in Trial Court proceedings. The marriage took place soon after the decree of divorce was granted. All mediation efforts have failed”, noted the Division Bench.

The observation came pursuant to a plea by a husband seeking divorce from his wife, when the marriage itself was never consummated.

The background of the case was that, after going through several rounds of litigation, the Trial court granted divorce on the ground of irretrievable breakdown of marriage, which was set aside by the Appellate Court. But later, in second appeal, the decree of divorce was restored.

However, a review petition filed by the wife contending that High Court lacked jurisdiction to grant a decree of divorce on the ground of irretrievable breakdown of marriage was allowed.

After considering the facts & circumstances, the Top Court opined that the submission on behalf of the respondent wife that unless there is a consent by both the parties, even in exercise of powers under Article 142 of the Constitution of India the marriage cannot be dissolved on the ground of irretrievable breakdown of marriage, has no substance.

The Top Court therefore said that if both the parties to the marriage agree for separation permanently and/or consent for divorce, in that case, certainly both the parties can move the competent court for a decree of divorce by mutual consent.

Only in a case where one of the parties do not agree and give consent, only then the powers under Article 142 of the Constitution of India are required to be invoked to do substantial justice between the parties, added the Court.

“In the present case, admittedly, the appellant husband and therespondent wife have been living separately for more than 22 years and it will not be possible for the parties to live together. Therefore, we are of the opinion that while protecting the interest of the respondent wife to compensate her by way of lump sum permanent alimony, this is a fit case to exercise the powers under Article 142 of the Constitution of India and to dissolve the marriage between the parties”, observed the Division Bench.

Therefore, taking recourse to the provisions of Article 142 of the Constitution, the Apex Court granted a decree of divorce and dissolved the marriage, observing 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.