Marriage Had Not Taken Off From The Very Beginning, Living Apart For More Than 19 Years': SC Grants Divorce For Irretrievable Break Down Of Marriage

The Supreme Court on Wednesday exercised its powers under Article 142 of the Constitution to grant divorce to a couple on account of irretrievable break down of marriage. The Court noted that the marriage had 'not taken off from the very beginning' and that the couple had been living separately for more than 19 years.

A Bench comprising Justices Sanjay Kishan Kaul and M.M Sundresh observed,

"If the parties have not been able to subserve the very objective of marriage of companionship for each other from the very inception and have been living apart for more than 19 years, we are of the view that if this is not an irretrievable break down of marriage then what would be the situation of that kind"

Pursuant to a perusal of the record, the Court opined that 'there was little doubt; that the couple had problems in their marriage from the very beginning'.

The marriage had taken place on June 9, 2002 and on June 29, 2002 a case under Section 498A (cruelty) and Section 406 (criminal breach of trust) of the Indian Penal Code had been registered by the wife i.e. the appellant against the husband. The wife had further alleged that she had not been permitted to enter her marital home on account of her inability to satisfy the dowry demands. Subsequently, a divorce petition had been filed on September 9, 2003.

The Bench further placed reliance on a recent judgment of the Apex Court in Sivasankaran v. Santhimeenal wherein it had been held that repeated filing of cases and complaints against a spouse would amount to 'cruelty' for the purpose of granting divorce under Hindu Marriage Act. It had also been observed that there had been disintegration of marital unity thus leading to the disintegration of the marriage.

Opining that the facts of the aforementioned case and the instant case are similar in nature, the Bench observed,

"In the facts of the case, we had found both cruelty made out as also the marriage not having taken off from the very inception for almost 20 years, somewhat similar in the present case. We thus observed that there was disintegration of marital unity and thus disintegration of the marriage and went out to notice that there was no initial integration itself which would really allow disintegration afterwards. The position is not different in this case. We are thus of the view that it is appropriate that the parties formally part company having actually lived apart for about 19 years."

Background 

In the instant case, marriage had been solemnised between the parties on June 9, 2002 as per Hindu rites but there had been problems in the marriage from the very inception due to the family members of the husband.

On June 9, 2003 the wife (appellant) had filed a petition on grounds of cruelty and desertion under Section 13 of the Hindu Marriage Act, 1955. However, the petition had been dismissed on January 1, 2006 on the ground that the brother of the wife had deposed against her.

However, the appellant claimed that the testimonies of her own brother, Subhash Chand and sister-in-law Rani Devi in whose presence the harassment of the appellant had taken place were not given due consideration. Instead, the testimony of her other brother who stays separately from the family and is not even on talking terms with her parents was given credence, the appellant alleged.

The order of the trial court had been subsequently challenged but the appeal had been dismissed by the High Court vide impugned judgment dated November 5, 2009.

The parties thereafter were sent for mediation by the Apex Court vide order dated September 10, 2010 but no consensus had been reached.

The trial court had directed the husband to pay a monthly maintenance amount of Rs 800 however, on September 23, 2021 the counsel appearing for the appellant apprised the Court that the appellant had agreed to go through a mutual consent divorce with all allegations made earlier withdrawn. She had also decided to not claim any maintenance henceforth.

However, on September 28, 2021 the counsel appearing for the respondent informed the Court that the respondent was unwilling to go ahead with a mutual consent divorce as suggested by the appellant.

Accordingly, the Court proceeded to adjudicate upon the matter after noting that 'even the mutual consent divorce is not acceptable to the respondent'.

The Court thus granted a decree of divorce to the parties by ruling,

"We are thus of the view that a decree of divorce dissolving the marriage between the parties be passed in exercise of powers under Section 142 of the Constitution of India on account of irretrievable break down of marriage, but we make it clear that in view of what had been offered by the appellant in Court, the appellant will not claim any maintenance or any other amounts from the respondent henceforth."

Case Title: Poonam v. Surendra Kumar

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