Mere say of the wife she is willing to stay with husband would not suffice, divorce decree granted.

Hindu Marriage Act (1955), S.13(1)(ia) - Constitution of India, Art. I42-Divorce-Grant of by exercise of powers u/Art. 142 - Parties engaged in multifarious litigation including divorce proceeding for almost two decades - Stay of parties was only for about two months after marriage - Wife then left for Canada and also obtained Canadian Citizenship - Wife claiming that she had travelled to Canada as husband wanted immigration to Canada - However, she admitted that she had not taken any documents of husband with her - Relationship appears to have deteriorated to such an extent that both parties see little good in each other.

Though wife insists that she wants to live with husband, mere say of such willngness would not suffice - This is only to frustrate efforts of husband to get decree of divorce - Continuity of marriage is fruitless and causing emotional trauma and disturbance to both parties. Hence, decree of divorce granted.

The Supreme Court recently dissolved a marriage by exercising its inherent powers under Article 142 of the Constitution, even as it recognised that there is no statutory law for recognising irretrievable breakdown of marriage as a ground for divorce in India.

The Bench passed a judgment to this effect after taking note that the Supreme Court has earlier invoked its inherent powers under Article 142  to grant a divorce on the ground of irretrievable breakdown of marriage. Further, the Court took note that this was done"not only in cases where parties ultimately, before this Court, have agreed to do so but even otherwise." 

It was pointed out that,

"There is, thus, recognition of the futility of a completely failed marriage being continued only on paper ... 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. "

Citing the judgment of R. Srinivas Kumar v. R. Shametha,  the Bench added the caution that such powers are not exercised routinely. However, the same could be invoked "in rare cases, in view of the absence of legislation in this behalf, where it is found that marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably."

Factual Background

The appellant and the respondent got married in accordance with Hindu rites in the year 2000. The parties co-lived for a period of two months, after which the respondent-wife went to Canada, where she eventually obtained citizenship in 2002. The appellant alleged that the respondent went to Canada without his consent. The respondent returned to Indian only after she got her Canadian citizenship in 2002.

Even after coming back, there were continuous quarrels between the parties. Owing to the same, Panchayat had intervened and further asked the parties to reside separately from their family. Even this solution did not prove to be effective. Subsequently, the respondent left to Canada again.

This prompted the appellant to file for a divorce Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the ground of cruelty before the lower Court. The appellant contended that the loneliness and lack of co-habitation had caused him extreme physical and mental torture.

Despite his reluctance to go to Canada, he had signed the immigration papers in order to save his marriage, the appellant stated. However, the papers were never submitted. In fact, the appellant stated that the respondent herself had reached Canada on improper travel documents.

The respondent, in her arguments, blamed the appellant for abandoning her and made various other allegations relating to dowry, physical assault and extra-marital affairs.

She also claimed that she was forced to have an abortion when she was taken to a doctor once. The appellant denied this allegation and stated that the respondent was never pregnant.

After hearing the arguments from both sides, the Additional District Judge granted a decree of divorce against which an appeal was filed before the High Court of Punjab. Interestingly, the High Court set aside the decree of divorce, attributing various allegations exchanged between the parties to the wear and tear of marriage and "inflamed passions". The High Court judge had opined that these were not adequate to knock down the walls of marriage.

Aggrieved, the appellant-husband filed an appeal before the Supreme Court. The respondent-wife, in the meanwhile, expressed consent to continue to staying with the appellant.

What the Supreme Court observed

The Supreme Court found that the personal relationship between the parties seemed to have been greatly deteriorated and strained. As noted in the judgment,

"... the relationship appears to have deteriorated to such an extent that both parties see little good in each other; 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 ...

... 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."

The Bench noted that multiple efforts were made to mediate between the parties, but proved unsuccessful. As a last resort, a counselor was appointed in an attempt to fix the issue. The Court also took serious note of the critical opinion given by a marriage counsellor 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”

In view of these peculiar facts, the Bench remarked,  "on the ground of irretrievable breakdown of marriage, if this is not a fit case to grant divorce, what would be a fit case!"

It went on to eventually hold,

"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.  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."

The Court concluded on a hopeful note,

"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. "

The Court proceeded to award a decree of divorce and dissolved the marriage in the instant case, invoking its jurisdiction under Article 142. The Court also held that the appellant should continue to pay maintenance of Rs.7,500 per month, although the parties were granted liberty to move appropriate proceedings to enhance or reduce the amount.