MUNISH KAKKARversusNIDHI KAKKAR

                        [2019] 15 S.C.R. 169                             169


                        MUNISH KAKKAR                                    A
                                  v.
                         NIDHI KAKKAR
                   (Civil Appeal No. 9318 of 2014)
                       DECEMBER 17, 2019                                 B

     [SANJAY KISHAN KAUL AND K.M. JOSEPH, JJ.]
      Hindu Marriage Act, 1955:
       s. 13(1)(ia) – Petition seeking divorce – By husband –
Trial Court passed decree of divorce – High Court set aside the          C
decree – Appeal to Supreme Court – Held: The High Court has
brushed aside the allegations as wear and tear of marriage – But
the relationship between the parties has deteriorated to such an
extent that continuity of marriage is fruitless – Though the ground
of ‘irretrievable breakdown of marriage’ has not been inserted as a      D
ground for divorce under the Act, in exercise of jurisdiction u/Art.
142 of the Constitution, in order to put a quiet us to the dispute,
decree of divorce is granted – Constitution of India – Art. 142.
      Allowing the appeal, the Court
       HELD: 1. The High Court appears to have brushed aside             E
the allegations of extra marital affairs as also of a child out of the
wedlock as part of the wear and tear of marriage and as “inflamed
passions.” However, the fact remains that the the relationship
between the parties appears to have deteriorated to such an
extent that both parties see little good in each other, an aspect        F
supported by the counselor’s report; though the respondent
insists that she wants to stay with the appellant. Matrimonial
relationships require adjustments from both sides, and a
willingness to stay together. The mere say of such willingness
would not suffice. [Para 13][174-B-D]
                                                                         G
       2. It is no doubt true that the divorce legislations in India
are based on the ‘fault theory’, i.e., no party should take advantage
of his/her own fault, and that the ground of irretrievable breakdown
of marriage, as yet, has not been inserted in the divorce law,
                                                                         H
                                 169
170            SUPREME COURT REPORTS                      [2019] 15 S.C.R.


A     despite a debate on this aspect by the Law Commission in two
      reports. 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
B     a dispute in a manner which would befit the facts of the case.
      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. [Paras 14, 19 and
      21][174-E; 175-G; 176-C]

C           3. Not only is the continuity of the marriage in the present
      case is 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.
      [Para 20][175-G; 176-A]
D
              4. 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, separately. Thus, exercising jurisdiction under
      Article 142 of the Constitution of India, a decree of divorce is
E     granted and the marriage inter se the parties is dissolved forthwith.
      [Paras 22 and 23][176-D-E]
            7. The maintenance of Rs.7,500 per month should be
      continued to be paid by the appellant to the respondent, and it is
      open for the parties to move appropriate proceedings for either
F     enhancement of this maintenance or reduction and cessation
      thereof. We only hope that this aspect can also be reconciled
      between the parties once a decree of divorce is granted.
      [Para 24][176-F-G]
            R. Srinivas Kumar v. R. Shametha (2019) 9 SCC 409 –
G           relied on.
                             Case Law Reference
      (2019) 9 SCC 409                 relied on.             Para 19

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              MUNISH KAKKAR v. NIDHI KAKKAR                                   171


      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9318                     A
of 2014.
     From the Judgment and Order dated 10.02.2011 of the High Court
of Punjab & Haryana at Chandigarh in FAO No. 90-M of 2010(O&M)
     Manoj Swarup, Sr. Adv., Santosh Mishra, Neelmani Pant, Mukul
                                                                              B
Kumar, Advs. for the Appellant.
      Respondent-in-person.
      The Judgment of the Court was delivered by
      SANJAY KISHAN KAUL, J.
                                                                              C
       1. Marriages are said to be made in heaven. They are broken on
earth. We are faced with a scenario where for the better part of almost
two decades, the parties before us, who are husband and wife, have
been engaged in multifarious litigation, including a divorce proceeding,
which forms subject matter of the appeal before us.
                                                                              D
       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
                                                                              E
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     F
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         G
appear that the respondent was apparently interested in Canadian
citizenship and only after having achieved that, came back to India.
      3. 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              H
172             SUPREME COURT REPORTS                            [2019] 15 S.C.R.


A     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 Canada.
B            4. 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 16.5.2003.
             5. It is the appellant’s case that he had reasonable apprehension
      about the safety of his life and limb, and that the respondent was really
C     not interested in living with the appellant in India, away from Canada.
      The loneliness and lack of co-habitation is stated to have caused physical
      and mental torture. The appellant also sought to make out a case that
      the respondent was suffering from depression and was on medication.
      Despite the appellant’s stable job in India, the respondent kept on
      pressuring him to shift to Canada, and despite his reluctance he had
D
      signed the immigration papers in order to save his marriage. However,
      the papers were never submitted. In fact, he came to know that the
      respondent herself had reached Canada on improper travel documents
      and, thus, could not apply for the appellant’s immigration. It is the further
      submission of the appellant that all stridhan was taken away by the
E     respondent in April, 2001 itself. The appellant has alleged that the
      respondent was extremely suspicious and maligned his character in front
      of his colleagues on the basis of alleged liaisons with his colleagues.
             6. The respondent naturally had her own version and claimed to
      have travelled to Canada to meet his insistence of immigrating to Canada,
F     though she admitted that she had not taken any documents of the appellant
      with her to Canada. She, in fact, blamed the appellant of abandoning her
      and made various other allegations including of dowry, physical assault
      and extra-marital affairs. In respect of her continued stay in Canada she
      claims to have had an “insect bite”! In her testimony, she claims that an
      unconsented abortion took place when she was taken to a doctor, though
G     it is an admitted position that she never made a complaint in respect
      thereof. The version of the appellant is different, i.e., that she was taken
      for general medical treatment, and was in fact never pregnant.
            7. The Additional District Judge, Nawanshahr vide judgment and
      order dated 9.12.2009, granted a decree of divorce against which an
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              MUNISH KAKKAR v. NIDHI KAKKAR                                     173
                 [SANJAY KISHAN KAUL, J.]

appeal was filed before the High Court. The learned Single Judge vide           A
impugned order dated 10.2.2011, however, set aside the decree of divorce.
       8. We may note here that the trial court’s 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             B
termination of pregnancy.
       9. The learned Single Judge of the High Court, however, framed
six primary grounds to examine the case for dissolution of marriage. It is
the finding in the impugned order that while the parties did stay apart, no
sense of anger could be made out to display any real discord between            C
the parties herein; though there were adjustment issues. The learned
Judge took note of the allegations regarding extra-marital affairs made
by one another, including the allegation of having a child out of the
wedlock, but came to the conclusion that serious imputation could not be
attached to the same. The same were attributed to “inflamed passions”,
which resulted in these grave suggestions; but were opined to not knock         D
down the fundamental walls of marriage. It was concluded that neither
party had transgressed the limits in making imputations regarding each
other’s extra-marital affairs and, thus, this would not constitute cruelty.
The aspect of physical assault alleged by the parties was also said not to
have been established.                                                          E
       10. Insofar as the aspect of irretrievable breakdown of the marriage
is concerned, it was opined that since that did not form part of statutory
law in India, that could not be treated as a ground.
       11. It is relevant to note that at various times there were efforts
made to mediate the dispute, which failed. Multiple efforts have been           F
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       G
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 party.                                             H
174            SUPREME COURT REPORTS                          [2019] 15 S.C.R.


A           12. We had, thus, no option but to hear the parties at some length.
      Despite our query of whether the respondent would like to be assisted
      by a counsel, she refused the same and wanted to address the Court
      personally, having acquired a law degree herself.
              13. We have given our deep thought to the matter and to the
B     discussions in the trial court judgment and the High Court judgment.
      Learned single Judge appears to have brushed aside the allegations of
      extra marital affairs as also of a child out of the wedlock as part of the
      wear and tear of marriage and as “inflamed passions.” The fact, however,
      remains that the relationship appears to have deteriorated to such an
      extent that both parties see little good in each other, an aspect supported
C     by the counselor’s report; though the respondent insists that she wants
      to stay with the appellant. In our view, this insistence is only to somehow
      not let a decree of divorce be passed against the respondent. This is only
      to frustrate the endeavour of the appellant to get a decree of divorce,
      completely losing sight of the fact that matrimonial relationships require
D     adjustments from both sides, and a willingness to stay together. The
      mere say of such willingness would not suffice.
             14. It is no doubt true that the divorce legislations in India are
      based on the ‘fault theory’, i.e., no party should take advantage of his/
      her own fault, and that the ground of irretrievable breakdown of marriage,
E     as yet, has not been inserted in the divorce law, despite a debate on this
      aspect by the Law Commission in two reports.
              15. 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
F     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 paper.
              16. We have noticed above that all endeavours have been made
G     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 counselor’s report also
      opines so. The marriage is a dead letter.
            17. Much could be said about what the learned single Judge has
      observed as wear and tear of marriage and “inflamed passions”, but
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                 MUNISH KAKKAR v. NIDHI KAKKAR                                     175
                    [SANJAY KISHAN KAUL, J.]

wisdom requires us to not traverse that same path, as we feel that, on             A
the ground of irretrievable breakdown of marriage, if this is not a fit case
to grant divorce, what would be a fit case!
        18. 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            B
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.
                                                                                   C
         19. We may note that in a recent judgment of this Court, in
         R. Srinivas Kumar v. R. Shametha,1to 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       D
         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            E
         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     F
         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.                                                                G
         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

1
    (2019) 9 SCC 409                                                               H
176               SUPREME COURT REPORTS                        [2019] 15 S.C.R.


A              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.
B

              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,
C     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
D     battling each other, and there can always be hope, even at this age, for a
      better life, if not together, separately.
             23. 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.
E             24. The respondent is a qualified lawyer; she claims to have not
      gone back to her family in Canada, but stayed in India only to battle this
      litigation. The respondent is being paid Rs.7,500 per month by the
      appellant. With a law degree she would be able to meet her needs better,
      though she claims that her sole concentration has been on the inter se
F     dispute. Be that as it may, we are of the view that the maintenance of
      Rs.7,500 per month should be continued to be paid by the appellant to
      the respondent, and it is open for the parties to move appropriate
      proceedings for either enhancement of this maintenance or reduction
      and cessation thereof. We only hope that this aspect can also be
      reconciled between the parties once a decree of divorce is granted.
G
               25. The appeal is allowed leaving the parties to bear their own
      costs.


      Kalpana K. Tripathy                                           Appeal allowed.
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