Case: MUNISH KAKKAR Vs. NIDHI KAKKAR

2. The marriage between the parties was solemnized at Jalandhar according to Hindu rites on 23.4.2000, where apparently the family of the appellant was based. The family of the respondent is stated to have been based in Canada. It appears from the allegations that the constant period of stay of the parties was only for about two months, with the respondent moving back and forth, but, undisputedly on 24.5.2001, the respondent left for Canada to be with her family. It is the case of the appellant that this was not with his consent, while on the other hand it is the case of the respondent that she was making an endeavour for immigration of the appellant to Canada, and at his behest. The respondent did not return to India till 16.8.2002, which was soon after she obtained Canadian citizenship on 6.8.2002. It is also an admitted position that during this time, no papers were filed with the Canadian authorities for immigration of the appellant and that the respondent puts the blame on incomplete papers sent by the appellant. As to why the papers could not be completed over such a long period of time is a moot point. It does appear that the respondent was apparently interested in Canadian citizenship and only after having achieved that, came back to India3. The parties resided for barely two and a half months together, when a fight is stated to have broken out between the parties and the respondent again left the company of the appellant. There was an intervention by the Panchayat and the parties were asked to reside separately from their family, in a rented accommodation, but that too did not last for more than a couple of months. The respondent is stated to have left the common residence on 15.4.2003 after an altercation and then again left for Canada4. The aforesaid resulted in the appellant filing a petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the ground of cruelty, on 16.5.20037. The Additional District Judge, Nawanshahr vide judgment and order dated 9.12.2009, granted a decree of divorce against which an appeal was filed before the High Court. The learned Single Judge vide impugned order dated 10.2.2011, however, set aside the decree of divorce.

Court's reasoning:
8. We may note here that the trial courts view was predicated on inter alia the continued character assassination by the respondent of the appellant, since she had neither been able to prove any extra-marital affair of the appellant, nor could she prove the factum of forcible termination of pregnancy11. It is relevant to note that at various times there were efforts made to mediate the dispute, which failed. Multiple efforts have been made even by this Court, but to no avail. In a last ditch effort, the parties were referred to a counselor after one of us, with the consent of the parties, had taken the matter in chambers. The counselor/psychologist, however, opined 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. There was also no family support from either side. This would also be apparent, in our view, from the fact that there are stated to be multiple cases filed by both set of family members against the opposite party15. We, however, find that there are various judicial pronouncements where this Court, in exercise of its powers under Article 142 of the Constitution of India, has granted divorce on the ground of irretrievable breakdown of marriage; not only in cases where parties ultimately, before this Court, have agreed to do so but even otherwise. There is, thus, recognition of the futility of a completely failed marriage being continued only on paper16. 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 counselors report also opines so. The marriage is a dead letter17. Much could be said about what the learned single Judge has observed as wear and tear of marriage and inflamed passions, but wisdom requires us to not traverse that same path, as we feel that, on the ground of irretrievable breakdown of marriage, if this is not a fit case to grant divorce, what would be a fit case!19. We may note that in a recent judgment of this Court, in R. Srinivas Kumar v. R. Shametha,(2019) 9 SCC 409  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 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 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 it20. 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 end21. 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 case22. 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, separately18. No doubt there is no consent of the respondent. But there is also, in real terms, no willingness of the parties, including of the respondent to live together. There are only bitter memories and angst against each other. This angst has got extended in the case of the respondent to somehow not permit the appellant to get a decree of divorce and live his life, forgetting that both parties would be able to live their lives in a better manner, separately, as both parties suffer from an obsession with legal proceedings, as reflected from the submissions before us.