R. SRINIVAS KUMARversusR. SHAMETHA

                         [2019] 12 S.C.R. 873                         873


                     R. SRINIVAS KUMAR                                A
                                v.
                         R. SHAMETHA
                  (Civil Appeal No. 4696 of 2013)
                                                                      B
                       OCTOBER 04, 2019
      [SANJAY KISHAN KAUL AND M. R. SHAH, JJ.]
      Hindu Marriage Act, 1955:
       s. 13(1) – Petition under – On the grounds mentioned in s.     C
13(1)(ia) and (ib) – Also sought divorce on the ground of
irretrievable breakdown of marriage – Refused by courts below –
In appeal to Supreme Court sought divorce on the ground of
irretrievable breakdown of marriage in exercise of powers under
Art. 142 of the Constitution – Held: Supreme Court in exercise of
its inherent powers u/Art. 142 can dissolve the marriage on the       D
ground of irretrievable breakdown of marriage, even if the facts
of the case do not provide a ground in law on which divorce could
be granted – In the facts of the case, the marriage is dissolved on
the grounds of irretrievable breakdown of marriage in exercise
of power u/Art. 142 on the condition that husband pays a              E
permanent alimony quantified at Rs. twenty lakhs to the wife –
Constitution of India – Art. 142.
      Allowing the appeal, the Court
      HELD: 1. In exercise of powers under Article 142 of the
                                                                      F
Constitution of India, the marriage can be dissolved on the
ground of irretrievable breakdown of marriage. 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              G
consent, the powers under Article 142 of the Constitution of
India are required to be invoked to do the 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
                                                                      H
                               873
874           SUPREME COURT REPORTS                     [2019] 12 S.C.R.


A     to suffer financially in future and she may not have to depend
      upon others. [Para 6] [879-C-F]
            2. The Supreme Court 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
B     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.
C
      Therefore, 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. [Para 7] [879-F-H; 880-A]
D
            3. The application for divorce filed by the appellant-
      husband for dissolution of marriage is hereby allowed. The
      marriage between the appellant-husband and the respondent-wife
      is ordered to be dissolved in exercise of powers under Article
      142 of the Constitution of India on the condition and as agreed
E     by the counsel for the appellant-husband that the appellant-
      husband shall pay to the respondent-wife a lump sum permanent
      alimony, quantified at Rs.20,00,000/- (Rupees Twenty Lakhs) to
      be paid directly to the respondent-wife by way of demand draft
      within a period of eight weeks. Till the permanent alimony as
F     above is paid to the respondent-wife, the appellant-husband to
      continue to pay the maintenance as being paid to her. [Para 8]
      [880-B-C]
             Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 :
            [2006] 3 SCR 53 ; Samar Ghosh v. Jaya Ghosh (2007)
G           4 SCC 511 : [2007] 4 SCR 428 ; Sukhendu Das v.
            Rita Mukherjee (2017) 9 SCC 632 – relied on.
            Durga Prasad Tripathy v. Arundathi Tripathy (2005)
            7 SCC 353 : [2005] 2 Suppl. SCR 833 ; Sanghamitra
            Ghosh v. Kajal Kumar Ghosh (2007) 2 SCC 220 :
H           [2006] 9 Suppl. SCR 156 ; K. Srinivas Rao v. D.A.
            R. SRINIVAS KUMAR v. R. SHAMETHA                             875


      Deepa (2013) 5 SCC 226 : [2013] 2 SCR 126 ;                        A
      Chetna Dass v. Kamla Devi (2001) 4 SCC 250 : [2001]
      3 SCR 20 ; Vishnu Dutt Sharma v. Manju Sharma
      (2009) 6 SCC 379 : [2009] 3 SCR 891 ; Hitesh
      Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234 :
      [2001] 6 SCR 118 ; Darshan Gupta v. Radhika Gupta
                                                                         B
      (2013) 9 SCC 1 : [2013] 10 SCR 937 ; Manish Goel
      v. Rohini Goel (2010) 4 SCC 393 : [2010] 2 SCR 414
      – referred to.
                       Case Law Reference
[2005] 2 Suppl. SCR 833            referred to          Para 3.1         C
[2006] 3 SCR 53                    relied on            Para 3.1
[2006] 9 Suppl. SCR 156            referred to          Para 3.1
[2007] 4 SCR 428                   relied on            Para 3.1
[2013] 2 SCR 126                   referred to          Para 3.1         D
(2017) 9 SCC 632                   relied on            Para 3.1
[2001] 3 SCR 20                    referred to          Para 4.2
[2009] 3 SCR 891                   referred to          Para 4.2
[2001] 6 SCR 118                   referred to          Para 4.2
                                                                         E
[2013] 10 SCR 937                  referred to          Para 4.2
[2010] 2 SCR 414                   referred to          Para 4.2
      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4696
of 2013.
      From the Judgment and Order 06.02.2012 of the High Court of        F
Judicature. Andhra Pradesh at Hyderabad in C.M.A. No. 4142 of 2003.
       Guru Krishna Kumar, Sr. Adv., A. Karthik, Ms. Shruta Gopalan,
Ankit Jaglan, Advs. for the Appellant.
     Jayant Kumar Mehta, Ms. Anu Shrivastava, Advs. for the
                                                                         G
Respondent.
      The Judgment of the Court was delivered by
      M. R. SHAH, J.
      1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 06.02.2012 passed in C.M.A. No. 4142 of 2003 by          H
876            SUPREME COURT REPORTS                         [2019] 12 S.C.R.


A     the High Court of Judicature Andhra Pradesh at Hyderabad, by which
      the High Court has dismissed the said appeal preferred by the appellant-
      husband and has confirmed the judgment and order passed by the
      learned Family Court refusing to pass a decree of divorce against the
      respondent-wife, the appellant-husband has preferred the present
      appeal.
B
             2. That the marriage of the appellant and the respondent took
      place on 09.05.1993. That out of the said wedlock, the respondent gave
      birth to a male child on 29.08.1995. It appears that there were
      differences of opinion between the parties and according to the
      appellant-husband, cruelty was meted out to him. Up to 1997, many a
C     times, the respondent-wife stayed at her parental house. The appellant-
      husband filed a divorce petition in the year 1999 being O.P. No. 157 of
      1999 before the Family Court at Hyderabad. That the said petition was
      filed for a decree of divorce against the respondent-wife under Section
      13(1) (ia) and (ib) of the Hindu Marriage Act, 1955. That the learned
D     Family Court dismissed the said divorce petition by observing and holding
      that the appellant-husband has failed to prove the cruelty by the
      respondent-wife. The Family Court also refused to pass a decree of
      divorce on the ground of irretrievable breakdown of marriage.
              2.1 Feeling aggrieved and dissatisfied with the judgment and order
E     passed by the Family Court at Hyderabad dated 04.09.2003 in O.P. No.
      157 of 1999 dismissing the divorce petition, the appellant-husband
      preferred an appeal before the High Court. Before the High Court also,
      the appellant-husband sought a decree of divorce on the ground of
      irretrievable breakdown of marriage. By the impugned judgment and
      order, the High Court has dismissed the said appeal. Hence, the
F     appellant-husband is before this Court by way of the present appeal.
              3. Shri Guru Krishna Kumar, learned Senior Advocate appearing
      on behalf of the appellant-husband has made strenuous efforts to upset
      the findings recorded by both the courts below on cruelty. In the
      alternative, it is vehemently submitted by Shri Guru Krishna Kumar,
G     learned Senior Advocate appearing on behalf of the appellant-husband
      that both the appellant-husband and the respondent-wife are residing
      separately since last 22 years and that it is impossible to save the
      marriage and that there is no chance of marriage surviving and it is
      broken beyond repair. It is submitted that therefore as there is
H     irretrievable breakdown of marriage it is in the fitness of the things to
   R. SRINIVAS KUMAR v. R. SHAMETHA [M. R. SHAH, J.]                         877


dissolve the marriage even in exercise of the powers under Article 142       A
of the Constitution of India and to do substantial justice to the parties.
      3.1 In support of his alternative submission to dissolve the
marriage on the ground of irretrievable breakdown of marriage, learned
Senior Advocate has heavily relied upon the following decisions of this
Court, Durga Prasad Tripathy v. Arundathi Tripathy (2005) 7 SCC              B
353; Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558; Sanghamitra
Ghosh v. Kajal Kumar Ghosh (2007) 2 SCC 220; Samar Ghosh v.
Jaya Ghosh (2007) 4 SCC 511; K. Srinivas Rao v. D.A. Deepa
(2013) 5 SCC 226; and Sukhendu Das v. Rita Mukherjee (2017)
9 SCC 632.
                                                                             C
      3.2 Shri Guru Krishna Kumar, learned Senior Advocate appearing
on behalf of the appellant-husband has also stated at the Bar that the
appellant-husband is ready and willing to pay a reasonable permanent
alimony to the respondent-wife in case a decree of dissolution of
marriage is granted to the appellant-husband.
                                                                             D
       4. The present appeal is vehemently opposed by Shri Jayant
Kumar Mehta, learned Advocate appearing on behalf of the respondent-
wife. He has vehemently submitted that this is not a fit case to dissolve
the marriage between the appellant and the respondent on the ground
of irretrievable breakdown of marriage, in exercise of the powers under
                                                                             E
Article 142 of the Constitution of India.
        4.1 It is vehemently submitted by the learned Advocate appearing
on behalf of the respondent-wife that a decree of divorce cannot be
granted on the ground of irretrievable breakdown of marriage, if either
of the parties is not willing and has not consented to such dissolution.
                                                                             F
It is submitted that only in a case where both the parties to the marriage
agree and/or give consent, the marriage can be dissolved and a decree
of divorce can be passed on the ground of irretrievable breakdown of
marriage.
      4.2 Making the above submissions and relying upon the following
                                                                             G
decisions of this Court in the cases of Chetna Dass v. Kamla Devi
(2001 4 SCC 250; Vishnu Dutt Sharma v. Manju Sharma (2009)
6 SCC 379; Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC
234; Darshan Gupta v. Radhika Gupta (2013) 9 SCC 1; and
Manish Goel v. Rohini Goel (2010) 4 SCC 393, it is prayed to dismiss
the present appeal.                                                          H
878            SUPREME COURT REPORTS                         [2019] 12 S.C.R.


A            5. We have heard the learned counsel for the respective parties
      at length.
             5.1 At the outset, it is required to be noted and does not seem to
      be in dispute that since last 22 years both the appellant-husband and
      the respondent-wife are residing separately. It also appears that all
B     efforts to continue the marriage have failed and there is no possibility
      of re-union because of the strained relations between the parties. Thus,
      it appears that marriage between the appellant-husband and the
      respondent-wife has irretrievably broken down. In the case of Hitesh
      Bhatnagar (supra), it is noted by this Court that Courts can dissolve
      a marriage as irretrievably broken down only when it is impossible to
C
      save the marriage and all efforts are made in that regard and when
      the Court is convinced beyond any doubt that there is actually no chance
      of the marriage surviving and it is broken beyond repair.
             5.2 In the case of Naveen Kohli (supra), a three Judge Bench
      of this Court has observed as under:
D
            “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
E
            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.
F
            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
G           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
H           have been initiated by the appellant against the respondent, the
   R. SRINIVAS KUMAR v. R. SHAMETHA [M.R. SHAH, J.]                          879


      matrimonial bond between the parties is beyond repair. A               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 he fact and to
      declare defunct de jure what is already defunct de facto….”
                                                     [emphasis supplied]     B
      A similar view has been expressed in the case of Samar Ghosh
(supra).
      In the similar set of facts and circumstances of the case, this
Court in the case of Sukhendu Das (supra) has directed to dissolve
the marriage on the ground of irretrievable breakdown of marriage, in        C
exercise of powers under Article 142 of the Constitution of India.
       6. 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              D
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       E
to be invoked to do the 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.                                      F
       7. 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
                                                                             G
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   H
880            SUPREME COURT REPORTS                        [2019] 12 S.C.R.


A     142 of the Constitution of India and to dissolve the marriage between
      the parties.
            8. In view of the above and for the reasons stated above, the
      application for divorce filed by the appellant-husband for dissolution of
      marriage is hereby allowed. The marriage between the appellant-
B     husband and the respondent-wife is ordered to be dissolved in exercise
      of powers under Article 142 of the Constitution of India on the condition
      and as agreed by the learned Senior Advocate appearing on behalf of
      the appellant-husband that the appellant-husband shall pay to the
      respondent-wife a lump sum permanent alimony, quantified at
      Rs.20,00,000/- (Rupees Twenty Lakhs) to be paid directly to the
C     respondent-wife by way of demand draft within a period of eight weeks
      from today. Till the permanent alimony as above is paid to the
      respondent-wife, the appellant-husband to continue to pay the
      maintenance as being paid to her.
            9. The appeal is allowed in the aforesaid terms. No costs.
D

      Kalpana K. Tripathy                                       Appeal allowed.




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