India has one of the lowest divorce rates, not because couples are living happily together forever. The same is largely a result due to the most inhuman notion that “Hindu Marriage is Sacrosanct”, even if marriage has broken down beyond repair.
A contested divorce in nearly impossible in India, unless the matter reaches top court after a period of two decades, as in the case below.
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. The apex court granted divorce to the husband after 22-years of separation.
Case:
The appellant husband and the respondent wife were married as per the Hindu rites and customs on 29.08.1999. According to the appellant, there were certain differences between his sister and the respondent’s brother, who were married to each other, which led to the appellant’s sister returning to her parental house. Further, the case of the appellant is that the respondent left the appellant on 18.01.2000 and returned to her parental home. She did not return home.
She stood accused of cruelty and accordingly, the divorce petition was filed by the husband on 05.03.2001 seeking dissolution. The Family Court allowed the petition by its decree dated 23.07.2004. An appeal was carried by the respondent before the Madras High Court under Section 19 of the Family Courts Act, 1984 and it was filed on 09.09.2004.
According to the appellant, since the period for filing an appeal by the respondent had expired, he re-married on 31.10.2004 on the strength of the decree of dissolution dated 23.07.2004. He was served with the notice in the matter in May, 2005. Respondent, in fact, filed a petition seeking restitution of conjugal rights under Section 9 of the Hindu Marriage Act on 27.12.2004 and the same is still pending.
A child was born on 29.08.2000 after the wife left her matrimonial home.
The 6 (2020) 14 SCC 657 7 2021 SCC Online SC 702 37 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.
Family Court
The Family Court allowed the petition by its decree dated 23.07.2004. An appeal was carried by the respondent before the Madras High Court under Section 19 of the Family Courts Act, 1984 and it was filed on 09.09.2004. According to the appellant, since the period for filing an appeal by the respondent had expired, he re-married on 31.10.2004 on the strength of the decree of dissolution dated 23.07.2004.
Madras High Court
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.
Supreme Court
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.
Alimony Awarded to Wife
While granting the decree, the Supreme Court also awarded permanent alimony to the wife, despite living separately for 22-years. The court said,
While we affirm the judgment of the High Court and refuse to grant a decree of dissolution on the ground of cruelty by the respondent, we in exercise of our power under Article 142 of the Constitution declare the marriage between the appellant and the respondent as dissolved.
This will be on condition that the appellant will pay a sum of Rs.20,000,00/- (Rupees twenty lakhs) to the respondent by way of a demand draft within a period of eight weeks from today.
We further make it clear that this will be without prejudice to all the rights available to the son who was born in the marriage between the appellant and the respondent under law in regard to property rights.
Till the amount is paid as aforesaid, the appellant will continue to be liable to pay Rs.7000/- per month to the respondent.
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READ JUDGEMENT | Consent Of Spouse Not Necessary Under Article 142 | Supreme Court Grants Divorce To Husband After 22-Years Of Separation
— Voice For Men India (@voiceformenind) February 28, 2022
▪️Rs 20 Lakh Alimony awarded to protect the interest of the Wife financially@narendramodi @AmitShah @KirenRijiju https://t.co/yCaLUgEbMb
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