DR. NIRMAL SINGH PANESARversusMRS. PARAMJIT KAUR PANESAR @ AJINDER KAUR PANESAR

                 [2023] 13 S.C.R. 832 : 2023 INSC 896



                            CASE DETAILS

                   DR. NIRMAL SINGH PANESAR
                                     v.
               MRS. PARAMJIT KAUR PANESAR @
                  AJINDER KAUR PANESAR
                     (Civil Appeal No.2045 of 2011)
                          OCTOBER 10, 2023
      [ANIRUDDHA BOSE AND BELA M. TRIVEDI, JJ.]
                             HEADNOTES
     Issue for consideration: Should the irretrievable breakdown of
marriage necessarily result in the dissolution of marriage in exercise of
powers under Article 142 of the Constitution of India, when such is not a
ground for divorce under the Hindu Marriage Act 1955.
     Hindu Marriage Act, 1955 – s.13(1)(ia) and s.13(1)(ib) – District
Court granted the decree of divorce, as prayed for by the appellant-
husband, however, the Single Bench of the High Court reversed
the same and the Division Bench of the High Court confirmed the
judgment – Propriety:
      Held: Appellant-husband had failed to prove that the respondent-
wife had treated the appellant with “Cruelty” or that the respondent had
“Deserted” the petitioner as contemplated in s.13(1)(ia) and s.13(1)(ib)
respectively of the said Act – There is no dispute that the parties are
staying separate since last many years and all the efforts to bring them
together have failed – The Court can depart from the procedure as well as
the substantive laws, and exercise its discretion u/Art. 142 for dissolving
the marriage between the parties by balancing out the equities between
the conflicting claims of the parties, however, such discretion should
be exercised with great care and caution – The institution of marriage
occupies an important place and plays an important role in the society –
Therefore, it would not be desirable to accept the formula of “irretrievable
break down of marriage” as a strait-jacket formula for the grant of relief
of divorce u/Art. 142 of the Constitution of India – In the instant case,
                                    832
DR. NIRMAL SINGH PANESAR v. MRS. PARAMJIT KAUR PANESAR @               833
                  AJINDER KAUR PANESAR


the appellant-husband is aged about 89 years and respondent-wife is aged
about 82 years – The respondent all throughout her life has maintained
the sacred relationship since 1963 and has taken care of her three children
all these years, despite the fact that the appellant-husband had exhibited
total hostility towards them – The respondent is still ready and willing
to take care of her husband and does not wish to leave him alone at this
stage of life – She has also expressed her sentiments that she does not
want to die with the stigma of being a “divorcee” woman – The Court is
of the opinion that exercising the discretion in favour of the appellant u/
Art. 142 by dissolving the marriage between parties on the ground that the
marriage has irretrievably broken down, would not be doing “complete
justice” to the parties, would rather be doing injustice to the respondent
– Submission of the appellant to dissolve the marriage on the ground of
irretrievable break down of marriage, rejected. [Paras 14, 15, 17, 18, 19]
     Hindu Marriage Act, 1955 – Cruelty – Interpretation of:
     Held: The interpretation of the word “cruelty” is that it has to be
construed and interpreted considering the type of life the parties are
accustomed to; or their economic and social conditions and their culture
and human values to which they attach importance – Each case has to be
decided on its own merits. [Para 10]

       LIST OF CITATIONS AND OTHER REFERENCES

     Shilpa Sailesh v. Varun Sreenivasan 2023 SCC Online SC 544 –
followed.
     Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 : [2006] 3 SCR 53;
Bipin Chandra JaiSinghBai Shah v. Prabhavati AIR 1957 SC 176 : [1956]
SCR 838; Lachman UtamChand Kirpalani v. Meena alias Mota AIR 1964
SC 40 : [1964] SCR 331; Debananda Tamuli v. Kakumoni Kataky (2022)
5 SCC 459 – relied on.
      OTHER CASE DETAILS INCLUDING IMPUGNED
             ORDER AND APPEARANCES

    CIVIL APPELLATE JURISDICTION: CIVIL APPEAL NO.2045
OF 2011.
834          SUPREME COURT REPORTS                        [2023] 13 S.C.R.


     From the Judgment and Order dated 18.02.2009 of the High Court
of Punjab & Haryana at Chandigarh in LPA No.195 of 2001 in FAO No.
44 of 2000.
      Appearances:
    Vipin Gogia, Ms. Jaspreet Gogia, Karanvir Gogia, Advs. for the
Appellant.
      Ms. Madhurima Tatia, Rajendra Mal Tatia, Advs. for the Respondent.

       JUDGMENT / ORDER OF THE SUPREME COURT

                               JUDGMENT
      BELA M. TRIVEDI, J.
      1. “Should the irretrievable breakdown of marriage necessarily result
in the dissolution of marriage in exercise of powers under Article 142 of the
Constitution of India, when such is not a ground for divorce under the Hindu
Marriage Act 1955?” - is the question posed before us.
      2. The appellant is a qualified doctor, and was Commissioned Air Force
Officer. He retired on 30.04.1990 as Wing Commander. The respondent is also
a qualified teacher, who was working in a Central School, and has retired now.
The appellant had filed the Divorce proceedings on 12.03.1996 before the
District Court, Chandigarh on two grounds, namely ‘cruelty’ and ‘desertion’
as contemplated in Section 13(1)(ia) and 13(1)(ib) respectively of the Hindu
Marriage Act 1955 (hereinafter referred to as the said Act).
      3. The instant appeal is directed against the judgment and order dated
18.02.2009 passed by the High Court of Punjab and Haryana at Chandigarh
in LPA No. 195/2001 in FAO No. 44-M/2000 preferred by the appellant-
husband, whereby the Division Bench of the High Court while dismissing the
said LPA, had confirmed the judgment and decree dated 21.12.2000 passed by
the Single Bench in the FAO No.44-M of 2000. The said FAO No. 44-M/2000
was preferred by the respondent-wife, against the judgment and decree dated
05.02.2000 passed by the District Judge, Chandigarh (hereinafter referred to
as the District Court) in HMA No.63 of 1996, which had vide the said decree
dated 05.02.2000 allowed the HMA filed by the appellant-husband, and
dissolved the marriage between the parties under Section 13 of the said Act.
DR. NIRMAL SINGH PANESAR v. MRS. PARAMJIT KAUR PANESAR @                   835
        AJINDER KAUR PANESAR [BELA M. TRIVEDI, J.]


      4. It is not disputed that the parties had married as per the Sikh rites
on 10.03.1963 at Amritsar. The marriage was consummated and they were
blessed with three children- two daughters - Harpreet Kaur and Rupdaman
Kaur (both married now), and one son- Kunwarjit Singh Panesar. As per the
case of the appellant, he was serving in the Indian army and the respondent
was serving as a teacher in Central School in Amritsar. Till January 1984,
the relations between the parties were normal. The acrimony in their
relationship appears to have developed when the appellant was posted at
Madras in January 1984 and the respondent did not join him, and preferred
to stay initially with the parents of the appellant and thereafter with her son.
Despite sincere efforts having been made by the parties, the differences and
disputes could not be resolved, which ultimately led the appellant to file
Divorce proceedings in the District Court.
     5. As stated hereinabove, the District Court granted the decree of
divorce, as prayed for by the appellant however the Single Bench of the
High Court reversed the same and the Division Bench of the High Court
confirmed the judgment and order passed by the Single Bench vide the
impugned order.
      6. At the outset, it may be stated that both the parties are in the late
evening of their lives, in as much as the appellant is aged about 87 years
and the respondent is aged about 82 years. The Court considering the age of
the parties, had expected them to sit together and explore the possibility of
an amicable settlement, however the same having failed, the Court had no
option but to hear the respective learned counsels for the parties on merits.
      7. Mr. Vipin Gogia, the learned advocate appearing for the appellant
submitted that the High Court had committed gross error in reversing the
well-reasoned decree of divorce granted by the District Court, which had
concluded that the respondent had treated the appellant with cruelty and
had deserted the appellant without any reasonable cause as alleged in the
divorce petition. According to him, the acts of the respondent in not joining
the appellant when he was transferred to Madras, and thereafter not taking
care of the appellant though he had a heart problem, and subsequently
making complaints to the Air Force Authorities against the appellant to
malign his image, were the acts of “Cruelty,” entitling the appellant to a
decree of divorce, in view of the decision in case of Naveen Kohli vs. Neelu
836           SUPREME COURT REPORTS                          [2023] 13 S.C.R.


Kohli1. He alternatively submitted that the parties are staying separate since
the time the appellant had filed the Divorce petition in the District Court,
and that the marriage having been irretrievably broken down, the Court
should exercise the powers under Article 142 of the Constitution of India
and grant a decree of divorce. In this regard, he has heavily relied upon the
recent decision of the Constitution Bench in the case of Shilpa Sailesh vs.
Varun Sreenivasan2.
      8. Per contra, the learned advocate Ms. Madhurima Tatia for the
respondent submitted that the respondent being an aged lady does not want
to die with the stigma of a “Divorcee.” According to her, the respondent had
made all efforts to respect the sacred relationship between the parties all
through out and is still ready to look after the appellant with the assistance of
her son. Mere long period of separation could not tantamount to irretrievable
break down of the marriage. She lastly submitted that the appellant having
failed to make out any ground either of cruelty or desertion, the Court may
not interfere with the concurrent findings recorded by the Single Bench and
the Division Bench of the High Court in this regard.
      9. We have given anxious thought and consideration to the submissions
made by the learned advocates for the parties in the light of the evidence
on record. There could not be any disagreement with the proposition of
law canvassed by the learned counsel for the appellant that the allegations
of ‘cruelty’ and ‘desertion’ are legitimate grounds for seeking a decree of
divorce under Section 13(1) of the said Act. It is well accepted proposition
that “cruelty” is a course or conduct of one party which adversely affects the
other. The “cruelty” may be mental or physical, intentional, or unintentional.
This court in Naveen Kohli (supra) has summarised the principles of law
on “cruelty” as under: -
      “46. The principles of law which have been crystallised by a series of
      judgments of this Court are recapitulated as under:
      In Sirajmohmedkhan
      Janmohamadkhan v. Hafizunnisa


1
      (2006) 4 SCC 558
2
      2023 SCC Online SC 544
DR. NIRMAL SINGH PANESAR v. MRS. PARAMJIT KAUR PANESAR @               837
        AJINDER KAUR PANESAR [BELA M. TRIVEDI, J.]


    Yasinkhan [(1981) 4 SCC 250 : 1981 SCC (Cri) 829] this Court stated
    that the concept of legal cruelty changes according to the changes
    and advancement of social concept and standards of living. With the
    advancement of our social conceptions, this feature has obtained
    legislative recognition, that a second marriage is a sufficient ground
    for separate residence and maintenance. Moreover, to establish legal
    cruelty, it is not necessary that physical violence should be used.
    Continuous ill-treatment, cessation of marital intercourse, studied
    neglect, indifference on the part of the husband, and an assertion
    on the part of the husband that the wife is unchaste are all factors
    which lead to mental or legal cruelty.
    47. In Shobha Rani v. Madhukar Reddi [(1988) 1 SCC 105 : 1988
    SCC (Cri) 60] this Court had an occasion to examine the concept
    of cruelty. The word “cruelty” has not been defined in the Hindu
    Marriage Act. It has been used in Section 13(1)(i-a) of the Act in the
    context of human conduct or behaviour in relation to or in respect
    of matrimonial duties or obligations. It is a course of conduct of one
    which is adversely affecting the other. The cruelty may be mental
    or physical, intentional or unintentional. If it is physical, it is a
    question of fact and degree. If it is mental, the enquiry must begin as
    to the nature of the cruel treatment and then as to the impact of such
    treatment on the mind of the spouse. Whether it caused reasonable
    apprehension that it would be harmful or injurious to live with the
    other, ultimately, is a matter of inference to be drawn by taking into
    account the nature of the conduct and its effect on the complaining
    spouse. There may, however, be cases where the conduct complained
    of itself is bad enough and per se unlawful or illegal. Then the impact
    or the injurious effect on the other spouse need not be enquired
    into or considered. In such cases, the cruelty will be established if
    the conduct itself is proved or admitted. The absence of intention
    should not make any difference in the case, if by ordinary sense in
    human affairs, the act complained of could otherwise be regarded
    as cruelty. Intention is not a necessary element in cruelty. The relief
    to the party cannot be denied on the ground that there has been no
    deliberate or wilful ill-treatment.
838            SUPREME COURT REPORTS                        [2023] 13 S.C.R.


       48. The cruelty alleged may largely depend upon the type of life the
       parties are accustomed to or their economic and social conditions
       and their culture and human values to which they attach importance.
       Each case has to be decided on its own merits.
       49. ……..
       50. …….
       51. …….
       52. This Court in Savitri Pandey v. Prem Chandra Pandey [(2002)
       2 SCC 73] stated that mental cruelty is the conduct of other spouse
       which causes mental suffering or fear to the matrimonial life of the
       other. “Cruelty”, therefore, postulates a treatment of the petitioner
       with such cruelty as to cause a reasonable apprehension in his or her
       mind that it would be harmful or injurious for the petitioner to live
       with the other party. Cruelty, however, has to be distinguished from
       the ordinary wear and tear of family life. It cannot be decided on the
       basis of the sensitivity of the petitioner and has to be adjudged on the
       basis of the course of conduct which would, in general, be dangerous
       for a spouse to live with the other.”
      10. The crux of the various decisions of this Court on the interpretation
of the word “cruelty” is that it has to be construed and interpreted considering
the type of life the parties are accustomed to; or their economic and
social conditions and their culture and human values to which they attach
importance. Each case has to be decided on its own merits.
      11. Similarly, the law is also well settled as to what could be said to
be “Desertion” in the divorce proceedings filed under Section 13 of the said
Act. The expression “Desertion” had come up under the judicial scrutiny of
this Court in BipinChandra JaiSinghBai Shah vs. Prabhavati3, which was
again considered in case of Lachman UtamChand Kirpalani vs. Meena
alias Mota4. This Court collating the observations made in the earlier
decisions, stated its view as under: -



3
      AIR 1957 SC 176
4
      AIR 1964 SC 40
    DR. NIRMAL SINGH PANESAR v. MRS. PARAMJIT KAUR PANESAR @                     839
            AJINDER KAUR PANESAR [BELA M. TRIVEDI, J.]


        “Collating the aforesaid observations, the view of this Court may be stated
        thus: Heavy burden lies upon a petitioner who seeks divorce on the ground
        of desertion to prove four essential conditions, namely, (1) the factum of
        separation; (2) animus deserendi; (3) absence of his or her consent; and
        (4) absence of his or her conduct giving reasonable cause to the deserting
        spouse to leave the matrimonial home.”
       12. Recently, in Debananda Tamuli vs. Kakumoni Kataky5, the Court
referring the decision in case of Lachman UtamChand Kirpalani (supra) observed
as under: -
        “7. We have given careful consideration to her submissions. Firstly, we deal
        with the issue of desertion. The learned counsel appearing for the appellant
        relied upon the decision of this Court in Lachman Utamchand Kirpalani
        [Lachman Utamchand Kirpalani v. Meena, (1964) 4 SCR 331 : AIR 1964
        SC 40] which has been consistently followed in several decisions of this
        Court. The law consistently laid down by this Court is that desertion means
        the intentional abandonment of one spouse by the other without the consent
        of the other and without a reasonable cause. The deserted spouse must prove
        that there is a factum of separation and there is an intention on the part of
        deserting spouse to bring the cohabitation to a permanent end. In other words,
        there should be animus deserendi on the part of the deserting spouse. There
        must be an absence of consent on the part of the deserted spouse and the
        conduct of the deserted spouse should not give a reasonable cause to the
        deserting spouse to leave the matrimonial home. The view taken by this
        Court has been incorporated in the Explanation added to sub-section (1) of
        Section 13 by Act 68 of 1976. The said Explanation reads thus:
        “13. Divorce. — (1) *       *   *
        Explanation. —In this sub-section, the expression “desertion” means
        the desertion of the petitioner by the other party to the marriage without
        reasonable cause and without the consent or against the wish of such party,
        and includes the wilful neglect of the petitioner by the other party to the
        marriage, and its grammatical variations and cognate expressions shall be
        construed accordingly.””


5
       (2022) 5 SCC 459
840           SUPREME COURT REPORTS                          [2023] 13 S.C.R.


      “8. The reasons for a dispute between husband and wife are always
      very complex. Every matrimonial dispute is different from another.
      Whether a case of desertion is established or not will depend on the
      peculiar facts of each case. It is a matter of drawing an inference based
      on the facts brought on record by way of evidence.”
      13. Coming back to the facts of the present case, the Single Bench of
the High Court holding that the appellant-petitioner had failed to prove the
grounds of “cruelty” and “desertion” as contemplated in Section 13(1) of
the said Act, had reversed the decree of divorce passed by the Trial Court.
The Division Bench vide the impugned order confirmed the order passed
by the Single Bench and observed by holding as under: -
      “16. Coming now to the facts of the present case, it is undisputed that
      the wife continued to live with the husband without any grievance for
      21 years and gave birth to three children. She looked after the children.
      One daughter was married in the year 1984 before separation. The
      grievance put-forward by the husband for the first time was that the
      wife did not join him when he was transferred to Madras. The parties
      were settled at Amritsar and lived there for 21 years where children
      and parents of the appellant were also living. Case of the wife is that
      the husband got himself transferred of his own volition. At this stage
      of life when there were three grown up children and the wife had
      been living with the husband for 21 years, if unilateral decision was
      taken by the husband and the wife expressed her opposition, could it
      be held that the wife deserted the husband or treated him with cruelty.
      We have already referred to the settled principles on the subject. If the
      wife did not agree to have herself transferred to Madras, in the given
      situation, it could not be held that the wife wanted to bring cohabitation
      permanently to an end without reasonable cause. This did not show
      any animus deserendi nor it could be held that the wife was cruel to
      the husband. Taking an overall view of the matter, it cannot be held
      that the view taken by the learned Single Judge is not a possible view
      so as to call for interference in an appeal under Letters Patent. The fact
      remains that the wife continued to look after the children and arrange
      their marriages. There is nothing to show that the husband made any
      effort to join the wife, who was living in the matrimonial home or to
DR. NIRMAL SINGH PANESAR v. MRS. PARAMJIT KAUR PANESAR @                  841
        AJINDER KAUR PANESAR [BELA M. TRIVEDI, J.]


     look after any of the children. The burden of proof is on the appellant
     to prove desertion and cruelty.”
     “17. Learned counsel for the appellant refers to Exh.A-8, which is
     a letter addressed to the wife, in response to her representation for
     maintenance. The contents of the letter are as under: -
           “2. lt is informed that we have tried our best to help you both to
           reconcile in the long-term interest of the welfare of the family
           and children. Accordingly, it is learnt that Wg Cdr. N.S. Panesar,
           in good faith and on our counsel signed for reconciliation. But it
           seems that you are not ready to reconcile even in the interest of
           children. Under the circumstances, there is no other alternative
           for this HQ except to advice you to redress your grievance, if
           any, in the Court of law. However, on moral and humanitarian
           grounds we have counselled your husband to continue remitting
           Rs.800/- p.m. till the matter is settled to mutual satisfaction.”
     He also refers to Exh.A-17, which is letter written by the son of the
     appellant, asking the appellant to send money to the Court.”
     “18. Next contention raised is that the jewellery should not be given
     to the wife. Learned counsel for the appellant suggested that a grand-
     daughter of the appellant should visit the appellant, in which case,
     the appellant will have no objection to the jewellery being given
     to the grand daughter. Learned counsel for the wife states that the
     grand-daughters will visit the appellant as often as possible and also
     depending on desire and attitude of the appellant but not as a condition
     for finding of learned Single Judge to be upheld. Finding of learned
     Single Judge in this regard is as under: -
           “ ... This is a fit case to hand over the jewellery which was given
           to appellant (wife) at the time of marriage and thus, l -direct the
           Manager, Bank of Baroda, Sector 22, Chandigarh to hand over
           all the jewellery to the appellant lying in the locker ... “”
     14. Having regard to the observations made by the Single Bench
and Division Bench of the High Court, we do not propose to take any
different view. Suffice it to say that the appellant had failed to prove that the
respondent had treated the appellant with “Cruelty” or that the respondent
842           SUPREME COURT REPORTS                          [2023] 13 S.C.R.


had “Deserted” the petitioner as contemplated in Section 13(1)(ia) and 13(1)
(ib) respectively of the said Act.
       15. This brings us to advert to the submission made by the appellant
for granting the decree of divorce on the ground that the marriage has
irretrievably broken down. There is no dispute that the parties are staying
separate since last many years and all the efforts to bring them together
have failed. Under the circumstances one may presume that the marriage
is emotionally dead and beyond salvation and that there is an irretrievable
break down of marriage between the parties. However, the question is, should
the irretrievable break down of marriage necessarily result into a decree of
divorce to be granted under Article 142 of the Constitution of India?
     16. Recently, the Constitution Bench of this Court in the case of Shilpa
Shailesh vs. Varun Sreenivasan (supra) while adumbrating the issue with
regard to irretrievable break down of marriage and passing of decree of
divorce under Article 142 of the Constitution, observed as under: -
      “41. Having said so, we wish to clearly state that grant of divorce on
      the ground of irretrievable breakdown of marriage by this Court is not a
      matter of right, but a discretion which is to be exercised with great care
      and caution, keeping in mind several factors ensuring that ‘complete
      justice’ is done to both parties. It is obvious that this Court should be
      fully convinced and satisfied that the marriage is totally unworkable,
      emotionally dead and beyond salvation and, therefore, dissolution
      of marriage is the right solution and the only way forward. That the
      marriage has irretrievably broken down is to be factually determined
      and firmly established. For this, several factors are to be considered
      such as the period of time the parties had cohabited after marriage;
      when the parties had last cohabited; the nature of allegations made
      by the parties against each other and their family members; the orders
      passed in the legal proceedings from time to time, cumulative impact
      on the personal relationship; whether, and how many attempts were
      made to settle the disputes by intervention of the court or through
      mediation, and when the last attempt was made, etc. The period of
      separation should be sufficiently long, and anything above six years
      or more will be a relevant factor. But these facts have to be evaluated
      keeping in view the economic and social status of the parties, including
DR. NIRMAL SINGH PANESAR v. MRS. PARAMJIT KAUR PANESAR @                843
        AJINDER KAUR PANESAR [BELA M. TRIVEDI, J.]


    their educational qualifications, whether the parties have any children,
    their age, educational qualification, and whether the other spouse and
    children are dependent, in which event how and in what manner the
    party seeking divorce intends to take care and provide for the spouse
    or the children. Question of custody and welfare of minor children,
    provision for fair and adequate alimony for the wife, and economic
    rights of the children and other pending matters, if any, are relevant
    considerations. We would not like to codify the factors so as to curtail
    exercise of jurisdiction under Article 142(1) of the Constitution of
    India, which is situation specific. Some of the factors mentioned can
    be taken as illustrative, and worthy of consideration.
    42-49. ………
    50. In view of the aforesaid discussion, we decide this reference by
    answering the questions framed in the following manner:
         (i) The scope and ambit of power and jurisdiction of this Court
         under Article 142(1) of the Constitution of India.
         This question as to the power and jurisdiction of this Court under
         Article 142(1) of the Constitution of India is answered in terms of
         paragraphs 8 to 13, inter alia, holding that this Court can depart
         from the procedure as well as the substantive laws, as long as
         the decision is exercised based on considerations of fundamental
         general and specific public policy. While deciding whether to
         exercise discretion, this Court must consider the substantive
         provisions as enacted and not ignore the same, albeit this Court
         acts as a problem solver by balancing out equities between the
         conflicting claims. This power is to be exercised in a ‘cause or
         matter’.
         (ii) In view of, and depending upon the findings of this bench
         on the first question, whether this Court, while hearing a
         transfer petition, or in any other proceedings, can exercise
         power under Article 142(1) of the Constitution, in view of the
         settlement between the parties, and grant a decree of divorce by
         mutual consent dispensing with the period and the procedure
         prescribed under Section 13-B of the Hindu Marriage Act, and
844     SUPREME COURT REPORTS                      [2023] 13 S.C.R.


      also quash and dispose of other/connected proceedings
      under the Domestic Violence Act, Section 125 of the Cr.
      P.C., or criminal prosecution primarily under Section 498-
      A and other provisions of the I.P.C. If the answer to this
      question is in the affirmative, in which cases and under what
      circumstances should this Court exercise jurisdiction under
      Article 142 of the Constitution of India is an ancillary issue
      to be decided.
      In view of our findings on the first question, this question
      has to be answered in the affirmative, inter alia, holding that
      this Court, in view of settlement between the parties, has
      the discretion to dissolve the marriage by passing a decree
      of divorce by mutual consent, without being bound by the
      procedural requirement to move the second motion. This
      power should be exercised with care and caution, keeping in
      mind the factors stated in Amardeep Singh (supra) and Amit
      Kumar (supra). This Court can also, in exercise of power
      under Article 142(1) of the Constitution of India, quash and
      set aside other proceedings and orders, including criminal
      proceedings.
      iii) Whether this Court can grant divorce in exercise of power
      under Article 142(1) of the Constitution of India when there
      is complete and irretrievable breakdown of marriage in spite
      of the other spouses opposing the prayer?
      This question is also answered in the affirmative, inter
      alia, holding that this Court, in exercise of power under
      Article 142(1) of the Constitution of India, has the discretion
      to dissolve the marriage on the ground of its irretrievable
      breakdown. This discretionary power is to be exercised to
      do ‘complete justice’ to the parties, wherein this Court is
      satisfied that the facts established show that the marriage
      has completely failed and there is no possibility that the
      parties will cohabit together, and continuation of the formal
      legal relationship is unjustified. The Court, as a court of
      equity, is required to also balance the circumstances and
DR. NIRMAL SINGH PANESAR v. MRS. PARAMJIT KAUR PANESAR @                      845
        AJINDER KAUR PANESAR [BELA M. TRIVEDI, J.]


            the background in which the party opposing the dissolution
            is placed.”
      17. In view of the afore-stated decision of the Constitution Bench, there
remains no shadow of doubt that this Court can depart from the procedure
as well as the substantive laws, and exercise its discretion under Article 142
for dissolving the marriage between the parties by balancing out the equities
between the conflicting claims of the parties, however, such discretion
should be exercised with great care and caution. It has also laid down that
this discretionary power could be exercised for dissolving the marriage on
the ground of its irretrievable break down to do “complete justice,” though
one of the spouses opposes the prayer for dissolution of marriage.
      18. However, in our opinion, one should not be oblivious to the fact
that the institution of marriage occupies an important place and plays an
important role in the society. Despite the increasing trend of filing the
Divorce proceedings in the courts of law, the institution of marriage is still
considered to be a pious, spiritual, and invaluable emotional life-net between
the husband and the wife in the Indian society. It is governed not only by the
letters of law but by the social norms as well. So many other relationships
stem from and thrive on the matrimonial relationships in the society.
Therefore, it would not be desirable to accept the formula of “irretrievable
break down of marriage” as a strait-jacket formula for the grant of relief of
divorce under Article 142 of the Constitution of India.
      19. So far as the facts of the present case are concerned, as stated earlier,
the appellant-husband is aged about 89 years and respondent-wife is aged
about 82 years. The respondent all throughout her life has maintained the
sacred relationship since 1963 and has taken care of her three children all
these years, despite the fact that the appellant-husband had exhibited total
hostility towards them. The respondent is still ready and willing to take care
of her husband and does not wish to leave him alone at this stage of life.
She has also expressed her sentiments that she does not want to die with
the stigma of being a “divorcee” woman. In contemporary society, it may
not constitute to be stigma but here we are concerned with the respondent’s
own sentiment. Under the circumstances, considering and respecting the
sentiments of the respondent wife, the Court is of the opinion that exercising
the discretion in favour of the appellant under Article 142 by dissolving the
846            SUPREME COURT REPORTS                     [2023] 13 S.C.R.


marriage between parties on the ground that the marriage has irretrievably
broken down, would not be doing “complete justice” to the parties, would
rather be doing injustice to the respondent. In that view of the matter, we
are not inclined to accept the submission of the appellant to dissolve the
marriage on the ground of irretrievable break down of marriage.
      20. The appeal therefore is dismissed.




Headnotes prepared by:                                      Appeal dismissed.
Ankit Gyan