REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4696 OF 2013

R. Srinivas Kumar …Appellant

Versus

R. Shametha …Respondent

J U D G M E N T

M.R. SHAH, J.

Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 06.02.2012 passed in C.M.A. No. 4142

of  2003  by the  High  Court of Judicature  Andhra  Pradesh at

Hyderabad,  by  which the  High  Court  has  dismissed the said

appeal  preferred by  the  appellant­husband and has confirmed

the judgment and order passed  by the learned  Family  Court

refusing to pass a decree of divorce against the respondent­wife,

the appellant­husband has preferred the present appeal.

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2. That the marriage of the appellant and the respondent took

place on 09.05.1993.   That out of the said wedlock, the

respondent gave birth to a male child on 29.08.1995.  It appears

that there were differences of  opinion between the parties and

according to the  appellant­husband,  cruelty  was meted out to

him.   Up to 1997, many a times, the respondent­wife stayed at

her parental house.   The appellant­husband filed a divorce

petition in the year 1999 being O.P. No. 157 of 1999 before the

Family Court at Hyderabad.  That the said petition was filed for a

decree of divorce against the respondent­wife under Section 13(1)

(ia) and (ib) of the Hindu Marriage Act, 1955.   That the learned

Family  Court  dismissed  the  said  divorce  petition  by  observing

and holding that the appellant­husband has failed to prove the

cruelty by the respondent­wife.  The Family Court also refused to

pass a decree of divorce on the ground of irretrievable breakdown

of marriage.

2.1 Feeling  aggrieved and dissatisfied  with the judgment  and

order passed by the Family Court at Hyderabad dated

04.09.2003 in O.P. No. 157 of 1999 dismissing the divorce

petition, the appellant­husband preferred an appeal  before  the

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High Court.   Before the High Court also, the appellant­husband

sought a decree of divorce on the ground of irretrievable

breakdown of marriage.   By the impugned judgment and order,

the High Court has dismissed the said appeal.   Hence, the

appellant­husband  is  before this  Court  by  way of the  present

appeal.

3. Shri Guru Krishna Kumar, learned Senior Advocate

appearing on behalf of the appellant­husband has made

strenuous efforts to upset the findings recorded by both the

courts below on cruelty.   In the alternative, it is vehemently

submitted by Shri Guru Krishna Kumar, learned Senior Advocate

appearing on behalf of the appellant­husband that both the

appellant­husband and the respondent­wife are residing

separately since last 22 years and that it is impossible to save the

marriage and that there is no chance of marriage surviving and it

is broken beyond repair.  It is submitted that therefore as there is

irretrievable  breakdown of  marriage it is in the fitness  of the

things to dissolve the marriage even  in exercise of the powers

under Article 142 of the Constitution of India and to do

substantial justice to the parties.

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3.1 In support of his alternative submission to dissolve the

marriage on the ground of irretrievable breakdown of marriage,

learned  Senior  Advocate  has  heavily relied  upon  the following

decisions of this Court,  Durga Prasad Tripathy v. Arundathi

Tripathy (2005) 7 SCC 353; Naveen Kohli v. Neelu Kohli (2006) 4

SCC 558; Sanghamitra Ghosh v. Kajal Kumar Ghosh (2007) 2 SCC

220; Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511; K. Srinivas

Rao v. D.A. Deepa (2013) 5 SCC 226; and Sukhendu Das v. Rita

Mukherjee (2017) 9 SCC 632.

3.2 Shri Guru Krishna Kumar, learned Senior Advocate

appearing on behalf of the appellant­husband has also stated at

the Bar that the appellant­husband is ready and willing to pay a

reasonable permanent alimony to the respondent­wife in case a

decree of  dissolution  of  marriage is granted to the  appellant­

husband.

4. The present appeal is vehemently opposed by Shri Jayant

Kumar Mehta, learned Advocate appearing on behalf of the

respondent­wife. He has vehemently submitted that this is not a

fit case to dissolve the marriage between the appellant and the

respondent on the ground of irretrievable breakdown of marriage,

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in exercise of the powers under Article 142 of the Constitution of

India.

4.1 It is vehemently submitted by the learned Advocate

appearing on behalf of the respondent­wife that a decree of

divorce cannot be granted on the ground of irretrievable

breakdown of marriage, if either of the parties is not willing and

has not consented to such dissolution.  It is submitted that only

in a case where both the parties to the marriage agree and/or

give consent, the marriage can be dissolved and a decree of

divorce can be passed on the ground of irretrievable breakdown

of marriage.

4.2 Making the above submissions and relying upon the

following decisions of this Court in the cases of  Chetna Dass v.

Kamla Devi (2001 4 SCC 250; Vishnu Dutt Sharma v. Manju

Sharma (2009) 6 SCC 379; Hitesh Bhatnagar v. Deepa Bhatnagar

(2011) 5 SCC 234; Darshan Gupta v. Radhika Gupta (2013) 9 SCC

1; and Manish Goel v. Rohini Goel (2010) 4 SCC 393, it is prayed

to dismiss the present appeal.

5. We have heard the learned counsel for the respective parties

at length.

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5.1 At the outset, it is required to be noted and does not seem

to  be in  dispute that since last  22  years  both the  appellant­

husband and the respondent­wife are residing separately. It also

appears that all efforts to continue the marriage have failed and

there is no possibility of re­union because of the strained

relations between the parties.  Thus, it  appears  that  marriage

between the appellant­husband and the respondent­wife has

irretrievably broken down.   In the case of  Hitesh Bhatnagar

(supra), it is noted  by this  Court that  Courts can  dissolve a

marriage as irretrievably broken down only when it is impossible

to save the marriage and all efforts are made in that regard and

when  the  Court is convinced  beyond  any  doubt that there is

actually  no chance of the marriage surviving and  it is  broken

beyond repair.

5.2 In the case of Naveen Kohli (supra), a three Judge Bench of

this Court has observed as under:

“74. ……Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and  injurious to  the interests  of the  parties.  Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie.   By refusing to sever that tie

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the  law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.

85. Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to  a  marriage  which in fact  has ceased to exist….

86. In  view of the fact that the  parties  have  been living  separately for  more than 10  years  and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A 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 the recognition of  he  fact  and to declare defunct  de  jure what is already defunct de facto….”

[emphasis supplied]

A similar view  has been expressed in the case of  Samar

Ghosh (supra).  

In the similar set of facts and circumstances of the case, this

Court in the case of  Sukhendu Das (supra)  has directed to

dissolve the marriage on the ground of irretrievable breakdown of

marriage, in exercise of powers under Article 142 of the

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Constitution of India.  6. Now so far as submission on behalf of

the respondent­wife 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 is concerned, the

aforesaid has no substance.   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 the substantial Justice between the

parties, considering the facts and circumstances of the case.

However, at the same time, the interest of the wife is also required

to be protected  financially  so that  she may not  have  to  suffer

financially in future and she may not have to depend upon

others.

7. This Court, in a series of judgments, has exercised its

inherent powers under Article 142 of the Constitution of India for

dissolution of a marriage where the Court finds that the marriage

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is totally unworkable, emotionally dead, beyond salvage and has

broken down irretrievably,  even  if the  facts of the case do not

provide a ground in law on which the divorce could be granted.

In the present case, admittedly, the appellant­husband and the

respondent­wife 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 respondent­wife 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.

8. In view of the above and for the reasons stated above, the

application for divorce filed by the appellant­husband for

dissolution of marriage is hereby allowed.  The marriage between

the appellant­husband and the respondent­wife is ordered to be

dissolved in exercise of powers under Article 142 of the

Constitution of India on the condition and as agreed by the

learned  Senior  Advocate  appearing  on  behalf of the  appellant­

husband that the appellant­husband shall pay to the respondent­

wife a lump sum permanent alimony, quantified at

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Rs.20,00,000/­ (Rupees Twenty Lakhs) to be paid directly to the

respondent­wife by way of demand draft within a period of eight

weeks from today.  Till the permanent alimony as above is paid to

the respondent­wife, the appellant­husband to continue to  pay

the maintenance as being paid to her.

9. The appeal is allowed in the aforesaid terms.  No costs.

……………………………………..J. [SANJAY KISHAN KAUL]

NEW DELHI; …………………………………….J. OCTOBER 04, 2019. [M.R. SHAH]

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