Consent Of Parties Not Necessary To Dissolve Marriage On Ground Of Irretrievable Breakdown: Supreme Court

The Supreme Court observed that the consent of the parties is not necessary to order the dissolution of marriage on the ground of irretrievable breakdown under Article 142 of the Constitution.

In this case, the High Court reversed the decree of dissolution of the marriage between a couple. The Family Court had earlier allowed petition filed by the husband seeking divorce on the ground of cruelty. 

Referring to the facts of the case, the Apex Court bench noted that there is nothing which is made out to justify a decree of dissolution of marriage on the ground of cruelty. The  court noted that the parties have  been living separately since 18.01.2000, for more than 22 years.

Since this is not a case where both parties are agreeable for a dissolution by way of irretrievable breakdown of marriage. The issue therefore considered was whether the consent of the parties is necessary to order dissolution of marriage on the ground of irretrievable breakdown?

Referring to earlier judgments in R. Srinivas Kumar v. R. Shametha(2019) 9 SCC 409, Munish Kakkar v. Nidhi Kakkar  (2020) 14 SCC 657 , Sivasankaran v. Santhimeenal 2021 SCC Online SC 702, the court observed that the consent of the parties is not necessary to declare a marriage dissolved. In R. Srinivas Kumar, the court had observed thus:

"7. Now so far as 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 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 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."

Therefore, the bench declared the marriage dissolved while observing thus:

Not even the slightest possibility of rapprochement between the appellant and the respondent exists for reasons though which are entirely due to the actions of the appellant and for which the respondent cannot be blamed. The marriage between the appellant and the respondent has become dead. It can be described as a point of no return. There is no possibility of the appellant and the respondent stitching together any kind of a reasonable relationship as the tie between the parties has broken beyond repair and having regard to the facts of this case, we would think that it would be in the interest of justice and to do complete justice to the parties that we should pass an order dissolving the marriage between the appellant and the respondent.

Headnotes

Family Courts Act, 1984 - Section 19,20 - Limitation Act, 1963- Section 12, 29(2) - The period spent in obtaining the copy can be excluded in calculating the period of limitation to file matrimonial appeals under Family Courts Act - Nothing inconsistent in Section 12 read with Section 29(2) of the Limitation Act with Section 19 of the Family Courts Act - Section 20 will not override the provisions of Section 12 of the Limitation Act.

Limitation Act, 1963- Section 29(3) - Family Courts Act, 1984  - The word 'proceedings' within the meaning of Section 29(3) is to be confined to the original proceeding and not appellate proceedings. (Para 21,24)

Family Courts Act, 1984 -  Madras High Court  Family Courts (Procedure) Rules, 1996 - Rule 52 - A free copy may be supplied as per the requirement under the Family Courts Act but that is a far cry from holding that an appeal can be carried without a certified copy - Rejected argument that that an appeal can be maintained within thirty days even if it is in the absence of a certified copy. (Para 22, 23)

Hindu Marriage Act, 1956 - Section 15 - Filing of appeal must be treated as having been presented within the meaning of Section 15 of the Act. The argument that not only must the appellant file the appeal, or prefer the appeal or present the appeal, but he must also ensure that the appeal comes on the judicial side of the High Court is clearly without any basis. (Para 27)

Family Courts Act, 1984 - The Family Courts Act is not a standalone Act. It draws sustenance from Acts like the Hindu Marriage Act. This is for the reason that a petition within the meaning, for instance, of the Hindu Marriage Act, after a Family Court is established in India, is to be dealt with by the Family Court, on the grounds as provided under the Hindu Marriage Act. (Para 24)

Constitution of India, 1950 - Article 142 - Irretrievable breakdown of marriage - Consent of the parties is not necessary to declare a marriage dissolved. (29-31)

Summary: Affirmed the judgment of the High Court but refused to grant a decree of dissolution on the ground of cruelty - Invoking Article 142 of the Constitution the marriage declared as dissolved.

Case : N Rajendran vs S Valli  | CA 3293 OF 2012 | 3 Feb 2022

Citation: 2022 LiveLaw (SC) 224

Coram: Justices KM Joseph and Hrishikesh Roy

Counsel: Adv K.S Mahadevan for appellant, Adv Gautam Narayan for respondent