SIVASANKARAN versus SANTHIMEENAL
[2021] 6 S.C.R. 169, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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SIVASANKARAN
v.
SANTHIMEENAL
(Civil Appeal Nos. 4984-4985 of 2021)
SEPTEMBER 13, 2021
[SANJAY KISHAN KAUL AND HRISHIKESH ROY, JJ.]
Hindu Law – Divorce – Cruelty – Subsequent conduct –
Continued allegations and litigative proceedings – Irretrievable
breakdown of marriage – Parties living separately from the date
of marriage for almost 20 years – Appellant-husband had
remarried after grant of divorce by trial court – Divorce decree
set aside by appellate court – Held: The marriage never took off
from the first day and was never consummated – Continuing acts
of respondent-wife amounted to cruelty even if the same had not
arisen as a cause prior to institution of the divorce petition – Her
conduct showed disintegration of marital unity and thus
disintegration of the marriage – All mediation efforts had failed –
Divorce granted not only in exercise of powers u/Art. 142 of the
Constitution 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 in light of subsequent conduct of respondent-wife during
pendency of judicial proceedings at various stages – Hindu
Marriage Act, 1955 – s.13(1)(i-a) – Constitution of India, 1950 –
Art. 142.
Hindu Law – Divorce – Cruelty – Mental cruelty – Wife filing
multiple cases in courts against the husband – Held: Such repeated
filing of cases itself amounts to mental cruelty.
Hindu Law – Divorce – Irretrievable breakdown of marriage
as a ground for divorce –
Legislature’s reluctance to introduce
irretrievable breakdown as a ground for divorce, even though there
may have been a change in social norms over a period of time –
In appropriate cases, Supreme Court has granted decrees of
divorce exercising its unique jurisdiction u/Art.142 of the
Constitution, to do complete justice between the parties –
Constitution of India, 1950 – Art. 142.
   [2021] 6 S.C.R. 169
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Disposing of the appeals, the Court
HELD: 1.1. Irretrievable breakdown of marriage as a
ground for divorce.
In appropriate cases, this Court has granted decrees of
divorce exercising its unique jurisdiction under Article 142 of
the Constitution, to do complete justice between the parties.
Such a course is being followed in varied kinds of cases, for
instance where there are inter se allegations between the parties,
in order to put a quietus to the matter, the parties withdraw
these allegations and by mutual consent, this court itself grants
divorce. There are also cases where the parties accept that there
is an irretrievable breakdown of marriage and themselves
request for a decree of divorce. One of the more difficult
situations is where, in the opinion of the court, there is
irretrievable breakdown of marriage but only one of the parties
is willing to acknowledge the same and accept divorce on that
account, while the other side seeks to oppose it even if it means
carrying on with the marriage. [Para 5][177-D-F]
1.2. The ground which is often taken to oppose such a
decree of divorce, apart from the absence of legislative mandate,
is that the very institution of marriage is distinctly understood
in diferent countries. Under the Hindu Law, it is sacramental in
character and is supposed to be an eternal union of two people
- society at large does not accept divorce, given the heightened
importance of marriage as a
social institution in India. Or at
least, it is far more difficult for women to retain social acceptance
after a decree of divorce. This, coupled with the law’s failure to
guarantee economic and financial security to women in the event
of a breakdown of marriage; is stated to be the reason for the
legislature’s reluctance to introduce irretrievable breakdown as
a ground for divorce – even though there may have been a
change in social norms over a period of time. Not all persons
come from the same social background, and having a uniform
legislative enactment is thus, stated to be difficult. It is in these
circumstances that this court has been exercising its jurisdiction,
despite such reservations, under Article 142 of the Constitution.
[Para 6][177-G-H; 178-A-B]
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2.1. Pendency of reference before Constitution Bench:
There is a reference to a Constitution Bench of this Court
in Shilpa Sailesh v. Varun Sreenivasan, order dated 29-06-2016
[T.P.(C) No.1118/2014] on two grounds – (a) what could be the
broad parameters for exercise of powers under Article 142 of
the Constitution to dissolve the marriage between consenting
parties without referring the parties to the family court to wait
for the period prescribed under Section 13-B of the Hindu
Marriage Act, and (b) whether the exercise of such jurisdiction
under Article 142 should be made at all or whether it should be
left to be determined on the facts of each case. However, the
reference is limited to cases of divorce on mutual consent, and
it raises the issue of whether the period prescribed under
s.13-B of the Act is mandatory. [Paras 8, 9][178-F-G; 179-A-B]
2.2. The present case involves a divorce petition filed
under s.13(1)(i-a) of the Hindu Marriage Act, and at no point of
time have both parties been amenable to a divorce on mutual
consent. Lack of consent to divorce in the present matter is also
apparent from the subsequent conduct of one of the parties. The
case at hand is therefore not covered by the questions referred
to the Constitution Bench in T.P. (C) No. 1118/2014. Further,
despite the reference order dated 29.06.2016, there have been
various instances where this court has exercised its powers to
grant divorce in such circumstances. [Paras 9 and
10][179-B-
D]
2.3. Marriage is a tie between two parties. If this tie is
not working under any circumstances, there is no purpose in
postponing the inevitability of the situation merely because of
the pendency of the reference. [Para 14][183-C]
3.1. However, there are many subsequent circumstances
which have arisen in the present case. It is noticed that:
(a) The respondent has resorted to filing multiple cases
in courts against the appellant. Such repeated filing of cases
itself has been held in judicial pronouncements to amount to
mental cruelty.
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(b) Respondent filed W.P. No.20407/2013 praying for a writ
of mandamus to initiate disciplinary action against the appellant,
who was working as an Asst. Professor in the Department of
History in Government Arts College, Karur. This writ petition
was dismissed on 6.6.2019.
(c) The respondent sought some information from the
College vide an RTI application dated 3.6.2013. She claimed the
information received from the college was insufficient and filed
an appeal.
(d) The respondent thereafter filed Writ Petition No. 9516/
2014. The Madras High Court opined, in terms of the judgment
dated 3.3.2016, that the respondent had raised unnecessary
queries. Her queries sought information about her husband’s
remarriage or whether he was living with somebody else, well
known to her, and the proceedings were found to be an abuse
of the process of the RTI Act.
(e) The respondent made representations to the college
authorities seeking initiation of disciplinary proceedings against
the appellant. It was not confined to even those college
authorities, but she made representations even to the Director
of Collegiate Education and the Secretary, Department of Higher
Education (Tamil Nadu). Thus, she sought to somehow ensure
that the appellant loses his job. Filing of such complaints seeking
removal of one’s spouse from job has been opined as amounting
to mental cruelty. [Para 15][183-D-G; 184-A-F]
3.2. Further, on having succeeded before
the first appellate
court, the respondent lodged a criminal complaint against the
appellant under Section 494 IPC even though her appeal was
pending before the High Court. She sought to array and accuse
even the persons who had attended the second marriage. The
High Court quashed the criminal proceedings in terms of order
dated 18.2.2019. [Para 16][184-G; 185-A]
3.3. There are episodes of further harassment by the
respondent even at the place of work of the appellant including
insulting the appellant in front of students and professors, as is
apparent from the judgment of the Trial Court. She is stated to
have threatened the appellant of physical harm in front of his
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colleagues as per the testimony of PW.3 and complained to the
appellant’s employer threatening to file a criminal complaint
against him (PW.3). The first appellate court somehow brushed
aside these incidents as having not been fully established on a
perception of wear and tear of marriage. The moot point is that
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. The parties,
undisputedly, never lived together even for a day. [Para 17][185-
B-C]
4.1. On facts, the marriage 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. [Para 18][185-D-E]
4.2. The continuing acts of the respondent would amount
to cruelty even if the same had not arisen as a cause prior to
the institution of the petition. This conduct shows disintegration
of marital unity and thus disintegration of the marriage. In fact,
there was no initial integration itself which would allow
disintegration afterwards. The fact that there have been
continued allegations and litigative proceedings and that can
amount to cruelty is an aspect taken note of by this
court. [Para
19][185-E-G]
4.3. This is one case where both the ground of
irretrievable breakdown of marriage and the ground of cruelty
on account of subsequent facts would favour the grant of decree
of divorce in favour of the appellant. Thus, a decree of divorce
dissolving the marriage between the parties be passed not only
in exercise of powers under Article 142 of the Constitution on
account of irretrievable breakdown of marriage, but also on
account of cruelty under Section 13(1)(i-a) of the Act in light of
the subsequent conduct of the respondent during the pendency
of judicial proceedings at various stages. The decree of divorce
is, accordingly, passed. Marriage stands dissolved. [Paras 20,
21 and 22][186-A-C]
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K. Srinivas Rao v. DA Deepa (2013) 5 SCC 226 :
[2013] 2 SCR 126 ; Naveen Kohli v. Neelu Kohli
(2006) 4 SCC 558 : [2006] 3 SCR 53 ; Vishwanath
Agrawal v. Sarla Vishwanath Agrawal (2012) SCC
Online SC 489 ; A. Jayachandra v. Aneel Kaur, (2005)
2 SCC 22 : [2004] 6 Suppl. SCR 599 ; Malathi Ravi
v. B.V. Ravi, (2014) 7 SCC 640 : [2014] 6 SCR 218 –
relied on.
Shilpa Sailesh v. Varun Sreenivasan [Order of
Supreme Court dated 29.06.2016] ; R. Srinivas
Kumar v. R. Shametha (2019) 9 SCC 409 : [2019] 12
SCR 873 ; Munish Kakkar v. Nidhi Kakkar (2020) 14
SCC 657 ; Hitesh Bhatnagar v. Deepa Bhatnagar
(2011) 5 SCC 234 : [2011] 6 SCR 118 ; Sukhendu Das
v. Rita Mukherjee (2017) 9 SCC 632 ; Parveen Mehta
v. Inderjit Mehta (2002) 5 SCC 706 – referred to.
Case Law Reference
(2017) 9 SCC 632
referred to
Para 7
(2002) 5 SCC 706
referred to
Para 7
[2019] 12 SCR 873
referred to
Para 11
(2020) 14 SCC 657
referred to
Para 11
[2011] 6 SCR 118
referred to
Para 12
[2013] 2 SCR 126
relied on
Para 15
[2006] 3 SCR 53
relied on
Para 15
[2004] 6 Suppl. SCR 599
relied on
Para 19
[2014] 6 SCR 218
relied on
Para 19
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.4984-
4985 of 2021.
From the Judgment and Order dated 25.02.2019 of the High
Court of Madras at Madurai Bench in Rev.Aplc (MD) Nos.193 and
194 of 2018 in CMSA (MD) Nos.42 and 43 of 2013.
Ms. V. Mohana, Sr. Adv., S. Gowthaman, Advs. for the Appellant.
S. Nagamuthu, Sr. Adv., M. P. Parthiban, A. S.
Vairawan,
R.Sudhakaran, Ms. Shalini Mishra, T. Hari Hara Sudhan, Vikash G. R.,
Advs. for the Respondent.
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The Judgment of the Court was delivered by
SANJAY KISHAN KAUL, J.
1. The appellant-husband and the respondent-wife resolved to
tie the marital knot by solemnising their marriage as per the Hindu rites
and customs on 7.2.2002. It appears there was a crash landing at the
take-of stage itself! The appellant claims that the respondent’s view
was that she had been coerced into marrying the appellant without giving
her consent, and left the marriage hall late at night and went to
Pudukkottai. An endeavour by the relatives of the appellant to persuade
her on the very next day to  live  with  the  appellant  was  not  fruitful.
The  marriage  was  never consummated. As the marriage did not work
out since its inception, the appellant issued a notice dated 25.02.2002
seeking divorce on the ground of cruelty under Section 13(1)(i-a) of
the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’).
Surprisingly, the respondent filed a petition for restitution of conjugal
rights soon thereafter. Respondent’s case was that the appellant and
his family demanded dowry and, on being unable to oblige, the appellant’s
brothers took him away from the Respondent’s company, rendering
consummation of the marriage impossible. She claims that it was the
appellant who refused to cohabit with her. In these circumstances,
appellant filed HMOP 24/2003 on 05.03.2003 under Section 13(1)(i-a)
of the Act, which was later re-numbered as HMOP 10/2005. Post-trial,
a decree of divorce
was granted after almost 5 years on 17.3.2008 on
the ground of irretrievable breakdown of marriage. The appellant did
not waste much time and got married a second time on 23.3.2008 after
6 days. The respondent preferred an appeal before the Addl. District
Judge, Pudukkottai. It is her  case that she filed an appeal on 1.7.2008,
within the period of limitation after obtaining all the requisite papers;
but the appeal was renumbered as CMA No.5 and 7 of 2011. The
appellate court set aside the decree of divorce  while allowing the
petition for restitution of conjugal rights. The third round took place
before the High Court in second appeal and, in terms of judgment dated
14.9.2018, the decree of divorce granted by the trial court was restored.
Thus, each stage of scrutiny took 5 years, and 15 years passed in the
litigation. In this period, the battle between the parties continued. This
inter alia posed a question mark on the status of the second marriage
of the appellant. The matter, however, did not end at this. The respondent
filed a review petition inter alia on the ground that it was not within
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the jurisdiction of the High Court or the trial court to grant a decree of
divorce on the ground of irretrievable breakdown of marriage. The High
Court noticed some  aspects of alleged cruelty and dissolved the
marriage by passing a decree of divorce on the ground of irretrievable
breakdown of marriage. Thus, the review petition was allowed by the
impugned order dated 25.2.2019, which has been assailed in the present
appeal.
2. The endeavour to find a solution through mediation or any
acceptable solution between the parties did not succeed. According to
the learned counsel for the parties, the respondent was not willing to
concede the decree of divorce on any terms even though both the
parties are educated and living their separate lives now for almost two
decades. In fact, learned counsel for the respondent even stated that
she was not disturbed by nor wanted to afect the status of the second
marriage; but was unwilling to concede to a scenario where her
marriage with the appellant came to an end even though in view of the
financial status of the parties no maintenance was being claimed. In
these circumstances, we are called upon to take a  view of the matter
in the given factual scenario and the subsequent developments, which
are material, during the pendency of the proceedings at various stages
of the judicial process.
3. We have examined the rival contentions of the parties and we
have little doubt that this is
one marriage which has not worked and
cannot work.
This is not only on account of the fact that the appellant has
married a second time but also because the parties are so troubled by
each other that they are not willing to even think of living together. This,
despite the fact that the respondent keeps on claiming that she is and
was always willing to live with him.
4. Insofar as irretrievable breakdown of marriage is concerned,
no doubt, it does not exist as a ground of divorce under the Act. The
issue has been debated by the Law Commission in its various reports.
Breakdown of marriage was incidentally considered by the Law
Commission in its 59th report (1974), but the Commission made no
specific recommendations in this regard. Thereafter in its 71st report
(1978), the Law Commission departed from the fault theory of divorce
to recognise situations where a marriage has completely broken down
and there is no possibility of reconciliation. Neither party need
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individually be at fault for such a breakdown of the marriage – it may
be the result of prolonged separation, clash of personalities, or
incompatibility of the couple. As the Law Commission pithily noted, such
marriages are ‘merely a shell out of which the substance is gone’. For
such situations, the Commission recommended that the law be amended
to provide for ‘irretrievable breakdown of marriage’ as an additional
ground of divorce. This recommendation was reiterated by the Law
Commission in its 217th Report in 2010, after undertaking a suo moto
study of the legal issues involved. So far, the Law Commission’s
recommendations have not been implemented. In 2010, the government
introduced the Marriage Laws (Amendment) Bill, 2010, which inter alia
proposed to add irretrievable breakdown of marriage as a new ground
for divorce in both the Hindu Marriage Act, 1955 and the Special
Marriage Act, 1954. After receiving suggestions from relevant
stakeholders, the bill was amended and re- introduced as the Marriage
Laws (Amendment) Bill, 2013. This bill was never passed.
5. The result is that, in appropriate cases, this court has granted
decrees of divorce exercising its unique jurisdiction under Article 142
of the Constitution of India, to do complete justice between the parties.
Such a course is being followed in varied kinds of cases, for instance
where there are inter se allegations between the parties, in order to
put a quietus to the matter, the parties
withdraw these allegations and
by mutual consent, this court itself grants divorce. There are also cases
where the parties accept  that there is an irretrievable breakdown of
marriage and themselves request for a decree of divorce. One of the
more difficult situations is where, in the opinion of the court, there is
irretrievable breakdown of marriage but only one of the parties is willing
to acknowledge the same and accept divorce on that account, while
the other side seeks to oppose it even if it means carrying on with the
marriage.
6. The ground which is often taken to oppose such a decree of
divorce, apart from the absence of legislative mandate, is that the very
institution of marriage is distinctly understood in diferent countries. Under
the Hindu  Law, it is sacramental in character and is supposed to be
an eternal union of two people - society at large does not accept divorce,
given the heightened importance of marriage as a social institution in
India. Or at least, it is far more difficult for women to retain social
acceptance after a decree of divorce. This, coupled with the law’s failure
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to guarantee economic and financial security to women in the event of
a breakdown of marriage; is stated to be the reason for the legislature’s
reluctance to introduce irretrievable breakdown as a ground for divorce
– even though there may have been a change in social norms over a
period of time. Not all persons come from the same social background,
and having a uniform legislative enactment is thus, stated to be difficult.
It is in these circumstances that this court has been exercising its
jurisdiction, despite such reservations, under Article 142 of the
Constitution of India.
7. A marriage is more than a seemingly simple union between
two individuals. As a social institution, all marriages have legal, economic,
cultural, and religious ramifications. The norms of a marriage and the
varying degrees of legitimacy it may acquire are dictated by factors
such as marriage and divorce laws, prevailing social norms, and religious
dictates. Functionally, marriages are seen as a site for the propagation
of social and cultural capital as they help in identifying kinship ties,
regulating sexual behaviour, and consolidating property and social
prestige. Families are arranged on the idea of a mutual expectation of
support and amity which is meant to be experienced and acknowledged
amongst its members. Once this amity breaks apart, the results can be
highly devastating and stigmatizing. The primary efects of such
breakdown are
felt especially by women, who may find it hard to
guarantee the same degree of social adjustment and support that they
enjoyed while they were married.
8. We may notice that the aforesaid exercise has produced
diferent judicial thought processes which have resulted in a reference
to a Constitution Bench of this Court in T.P.(C) No.1118/2014.1 The
reference is on two grounds – (a) what could be the broad parameters
for exercise of powers under Article 142 of the Constitution to dissolve
the marriage between consenting parties without referring the parties
to the family court to wait for the period prescribed under Section 13-
B of the Act, and (b) whether the exercise of such jurisdiction under
Article 142 should be made at all or whether it should be left to be
determined on the facts of each case.
9. In fact, this has been the bedrock of the submissions of the
learned counsel for the respondent who has strongly opposed any
1 Shilpa Sailesh v. Varun Sreenivasan; order dated 29.06.2016.
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endeavour by this court to exercise jurisdiction under Article 142 of the
Constitution to give a decree of divorce on account of irretrievable
breakdown of marriage in the absence of consent of the parties.
However, we must note that the remit of the questions referred in TP
(C) No. 1118/2014 is rather specific. The reference is limited to cases
of divorce on mutual consent, and it raises the issue of whether the
period prescribed under S. 13-B of the Act is mandatory. The present
case involves a divorce petition filed under S. 13(1)(i-a) of the Act, and
at no point of time have both parties been amenable to a divorce on
mutual consent. Lack of consent to divorce in the present matter is
also apparent from the subsequent conduct of one of the parties, as
discussed later in this judgment. The case at hand is therefore, in our
opinion, not covered by the questions referred to the Constitution Bench
in T.P. (C) No. 1118/2014.
10. We may further note that despite the reference order dated
29.06.2016, there have been various instances where this court has
exercised its powers to grant divorce in such circumstances.
11. We may initially refer to two judicial pronouncements in R.
Srinivas Kumar v. R. Shametha2 and Munish Kakkar v. Nidhi
Kakkar3 where it has been clearly opined that there is no necessity of
consent by both the parties for exercise of powers under Article 142
of the Constitution of India to dissolve the marriage on the ground of
irretrievable
breakdown of marriage.
12. In R. Srinivas Kumar,4 the parties had been living apart for
22 years and all endeavours to save the marriage had failed. We may
note that in Hitesh Bhatnagar v. Deepa Bhatnagar5, it was opined
by this Court that courts can dissolve a marriage as irretrievably broken
down only when it is impossible to save the marriage, all eforts have
been made in that regard, the Court is convinced beyond any doubt that
there is actually no chance of the marriage surviving, and it is broken
beyond repair. It could be useful to reproduce the observations made
in para 5.2 to para 8 as under:
“5.2. In Naveen Kohli [Naveen Kohli v. Neelu Kohli, (2006)
4 SCC 558] , a three-Judge Bench of this Court has observed
as under :
2 (2019) 9 SCC 409.
3 (2020) 14 SCC 657.
4 Supra
5 (2011) 5 SCC 234.
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“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 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 the fact and to declare defunct de jure what is
already defunct de facto.”
(emphasis supplied)
A similar view has been expressed in Samar Ghosh [Samar
Ghosh v. Jaya Ghosh, (2007) 4 SCC 511].
6. In the similar set of facts and circumstances of the case, this
Court in Sukhendu Das [Sukhendu Das v. Rita Mukherjee,
(2017) 9 SCC 632 : (2017) 4 SCC (Civ) 714] has directed to
dissolve the marriage on the ground of irretrievable breakdown
of marriage, in exercise of powers under Article 142 of the
Constitution of India.
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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 sufer financially in future and she
may not have to depend upon others.
8. 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
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 appellant husband and the
respondent 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.”
13. In Munish Kakkar case6, the following observations were
made:
“19. We may note that in a recent judgment of this Court, in
R. Srinivas Kumar v. R. Shametha, to which one of us (Sanjay
Kishan Kaul, J.) is a party, divorce was granted on the ground
of irretrievable breakdown of marriage, after examining various
6 supra
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judicial pronouncements. It has been noted that such powers are
exercised not in routine, but in  rare cases, in view of the absence
of legislation in this behalf, where it is found that a marriage is
totally unworkable, emotionally dead, beyond salvage and has
broken down irretrievably. That was a case where parties had
been living apart for the last twenty-two (22) years and a
re-union was found to be impossible. We are conscious of the
fact that this Court has also extended caution from time to time
on this aspect, apart from noticing 1(2019) 9 SCC 409 10 that it
is only this Court which can do so, in exercise of its powers under
Article 142 of the Constitution of India. If parties agree, they
can always go back to the trial court for a motion by mutual
consent, or this Court has exercised jurisdiction at times to put
the matter at rest quickly. But that has not been the only
circumstance in which a decree of divorce has been granted by
this Court. 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.
20.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.
21. The provisions of Article 142 of the Constitution provide a
unique power to the Supreme Court, to do “complete justice”
between the parties, i.e., where at times law or statute may not
provide a remedy, the Court can extend itself to put a quietus to
a dispute in a manner which would befit the facts of the case. It
is with this objective that we find it appropriate to take recourse
to this provision in the present case.
22. 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
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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 aforesaid are two illustrative cases but there are many more
spread over diferent periods of time.7
14. We are conscious that the Constitution Bench is examining
the larger issue but that reference has been pending for the last five
years. Living together is not a compulsory exercise. But marriage is a
tie between two parties. If this tie is not working under any
circumstances, we see  no purpose in postponing the inevitability of the
situation merely because of the pendency of the reference.
15. However, the aforesaid is not the only issue under which the
given facts of a case can be examined. No doubt, the courts below did
not find adequate material to come to the conclusion that the appellant
was entitled to divorce on grounds of cruelty. However, there are many
subsequent circumstances which have arisen in the present case which
necessitated the examination of this aspect. The question, thus, is
whether the respondent’s conduct after the initial trigger for divorce
amounts to mental cruelty. On the basis of material on record, we
endeavour to deal with this aspect and, in that behalf, we notice the
following:
(a) The respondent has resorted to filing multiple cases in
courts against the appellant. It may be noticed that
such
repeated filing of cases itself has been held in judicial
pronouncements to amount to mental cruelty.8
(b) Respondent filed W.P. No.20407/2013 praying for a writ
of mandamus to initiate disciplinary action against the
appellant, who was working as an Asst. Professor in
the Department of History in Government Arts College,
Karur. This writ petition was dismissed on 6.6.2019.
7 Sukhendu Das v. Rita Mukherjee (2017) 9 SCC 632; Parveen Mehta v. Inderjit
Mehta (2002) 5 SCC 706.
8 K. Srinivas Rao v. DA Deepa (2013) 5 SCC 226; Naveen Kohli v. Neelu Kohli
(2006) 4 SCC 558; Vishwanath Agrawal v. Sarla Vishwanath Agrawal (2012)
SCCOnline SC 489.
SIVASANKARAN v. SANTHIMEENAL
[SANJAY KISHAN KAUL, J.]
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(c) The respondent sought some information from the
College vide an RTI application dated 3.6.2013. She
claimed the information received from the college was
insufficient and filed an appeal. She sought the service
records pertaining to the appellant, apart from other
documents such as the identity card issued to the
appellant under the Star Health Insurance Scheme and
prior permission obtained by the appellant for purchasing
a piece of property owned by the Tamil Nadu Housing
Board etc.
(d) The respondent thereafter filed Writ Petition No. 9516/
2014. Even the information already furnished to her was
again sought for. The Madras High Court opined, in
terms of the judgment dated 3.3.2016, that the
respondent had raised unnecessary queries. Her queries
sought information about her husband’s remarriage or
whether he was living with somebody else, well known
to her, and the proceedings were found to be an abuse
of the process of the RTI Act.
(e) The respondent made representations to the college
authorities seeking initiation of disciplinary proceedings
against the appellant. It was  not confined to even those
college authorities, but she made representations even
to the Director of Collegiate Education and the
Secretary, Department of Higher Education (Tamil
Nadu). She sought disciplinary proceedings against the
appellant on account of the second marriage despite the
fact that the second marriage took place soon after
the
decree of divorce. Thus, she sought to somehow ensure
that the appellant loses his job. Filing of such complaints
seeking removal of one’s spouse from job has been
opined as amounting to mental cruelty.9
16. On having succeeded before the first appellate court, the
respondent lodged a criminal complaint against the appellant under
Section 494 IPC even though her appeal was pending before the High
Court. She sought to array and accuse even the persons who had
9 K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
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attended the second marriage. The High Court quashed the criminal
proceedings in terms of order dated 18.2.2019.
17. There are episodes of further harassment by the respondent
even at the place of work of the appellant including insulting the
appellant in front of students and professors, as is apparent from the
judgment of the Trial Court. She is stated to have threatened the
appellant of physical harm in front of his colleagues as per the testimony
of PW.3 and complained to the appellant’s employer threatening to file
a criminal complaint against him (PW.3). The first appellate court
somehow brushed aside these incidents as having not been fully
established on a perception of wear and tear of marriage. The moot
point is that the marriage has not taken of 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. The parties, undisputedly,
never lived together even for a day.
18. We are, thus, faced with a marriage which never took of 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 eforts have
failed.
19. In view of the legal position which we have referred to
aforesaid, these
continuing acts of the respondent would amount to
cruelty even if the same had not arisen as a cause prior to the institution
of the petition, as was found by the Trial Court. This conduct shows
disintegration of marital unity and  thus disintegration of the marriage.10
In fact, there was no initial integration itself which would allow
disintegration afterwards. The fact that there have been continued
allegations and litigative proceedings and that can amount to cruelty is
an aspect taken note of by this court.11 The marriage having not taken
of from its inception and 5 years having been spent in the Trial Court,
it is difficult to accept that the marriage soon after the decree of divorce,
within 6 days, albeit 6 years after the initial inception of marriage,
amounts to conduct which can be held against the appellant.
10 A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22
11 Malathi Ravi v. B.V. Ravi, (2014) 7 SCC 640
SIVASANKARAN v. SANTHIMEENAL
[SANJAY KISHAN KAUL, J.]
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20. In the conspectus of all the aforesaid facts, this is one case
where both the ground of irretrievable breakdown of marriage and the
ground of cruelty on account of subsequent facts would favour the grant
of decree of divorce in favour of the appellant.
21. We are, thus, of the view 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 under
Section 13(1)(i-a) of the Act in light of the subsequent conduct of the
respondent during the pendency of judicial proceedings at various
stages.
22. The   decree  of  divorce   is,  accordingly,  passed. Marriage
stands dissolved.
23. The appeals are allowed in the aforesaid terms leaving the
parties to bear their own costs.
Bibhuti Bhushan Bose
Appeals allowed.