SIVASANKARANversusSANTHIMEENAL

                         [2021] 6 S.C.R. 169                           169


                        SIVASANKARAN                                   A
                                 v.
                        SANTHIMEENAL
               (Civil Appeal Nos. 4984-4985 of 2021)
                      SEPTEMBER 13, 2021                               B
  [SANJAY KISHAN KAUL AND HRISHIKESH ROY, JJ.]
       Hindu Law – Divorce – Cruelty – Subsequent conduct –
Continued allegations and litigative proceedings – Irretrievable
breakdown of marriage – Parties living separately from the date        C
of marriage for almost 20 years – Appellant-husband had
remarried after grant of divorce by trial court – Divorce decree
set aside by appellate court – Held: The marriage never took off
from the first day and was never consummated – Continuing acts
of respondent-wife amounted to cruelty even if the same had not
arisen as a cause prior to institution of the divorce petition – Her   D
conduct showed disintegration of marital unity and thus
disintegration of the marriage – All mediation efforts had failed –
Divorce granted not only in exercise of powers u/Art. 142 of the
Constitution on account of irretrievable breakdown of marriage,
but also on account of cruelty u/s.13(1)(i-a) of the Hindu Marriage    E
Act, 1955 in light of subsequent conduct of respondent-wife during
pendency of judicial proceedings at various stages – Hindu
Marriage Act, 1955 – s.13(1)(i-a) – Constitution of India, 1950 –
Art. 142.
       Hindu Law – Divorce – Cruelty – Mental cruelty – Wife filing    F
multiple cases in courts against the husband – Held: Such repeated
filing of cases itself amounts to mental cruelty.
       Hindu Law – Divorce – Irretrievable breakdown of marriage
as a ground for divorce – Legislature’s reluctance to introduce
irretrievable breakdown as a ground for divorce, even though there     G
may have been a change in social norms over a period of time –
In appropriate cases, Supreme Court has granted decrees of
divorce exercising its unique jurisdiction u/Art.142 of the
Constitution, to do complete justice between the parties –
Constitution of India, 1950 – Art. 142.
                                                                       H
                                169
170            SUPREME COURT REPORTS                      [2021] 6 S.C.R.


A           Disposing of the appeals, the Court
           HELD: 1.1. Irretrievable breakdown of marriage as a
      ground for divorce.
             In appropriate cases, this Court has granted decrees of
      divorce exercising its unique jurisdiction under Article 142 of
B
      the Constitution, to do complete justice between the parties.
      Such a course is being followed in varied kinds of cases, for
      instance where there are inter se allegations between the parties,
      in order to put a quietus to the matter, the parties withdraw
      these allegations and by mutual consent, this court itself grants
C     divorce. There are also cases where the parties accept that there
      is an irretrievable breakdown of marriage and themselves
      request for a decree of divorce. One of the more difficult
      situations is w here, in the opinion of the court, there is
      irretrievable breakdown of marriage but only one of the parties
D     is willing to acknowledge the same and accept divorce on that
      account, while the other side seeks to oppose it even if it means
      carrying on with the marriage. [Para 5][177-D-F]
             1.2. The ground which is often taken to oppose such a
      decree of divorce, apart from the absence of legislative mandate,
E     is that the very institution of marriage is distinctly understood
      in diferent countries. Under the Hindu Law, it is sacramental in
      character and is supposed to be an eternal union of two people
      - society at large does not accept divorce, given the heightened
      importance of marriage as a social institution in India. Or at
      least, it is far more difficult for women to retain social acceptance
F
      after a decree of divorce. This, coupled with the law’s failure to
      guarantee economic and financial security to women in the event
      of a breakdown of marriage; is stated to be the reason for the
      legislature’s reluctance to introduce irretrievable breakdown as
      a ground for divorce – even though there may have been a
G     change in social norms over a period of time. Not all persons
      come from the same social background, and having a uniform
      legislative enactment is thus, stated to be difficult. It is in these
      circumstances that this court has been exercising its jurisdiction,
      despite such reservations, under Article 142 of the Constitution.
H     [Para 6][177-G-H; 178-A-B]
            SIVASANKARAN v. SANTHIMEENAL                            171


     2.1. Pendency of reference before Constitution Bench:          A
       There is a reference to a Constitution Bench of this Court
in Shilpa Sailesh v. Varun Sreenivasan, order dated 29-06-2016
[T.P.(C) No.1118/2014] on two grounds – (a) what could be the
broad parameters for exercise of powers under Article 142 of
the Constitution to dissolve the marriage between consenting        B
parties without referring the parties to the family court to wait
for the period prescribed under Section 13-B of the Hindu
Marriage Act, and (b) whether the exercise of such jurisdiction
under Article 142 should be made at all or whether it should be
left to be determined on the facts of each case. However, the       C
reference is limited to cases of divorce on mutual consent, and
it raises the issue of whether the period prescribed under
s.13-B of the Act is mandatory. [Paras 8, 9][178-F-G; 179-A-B]
      2.2. The present case involves a divorce petition filed
under s.13(1)(i-a) of the Hindu Marriage Act, and at no point of    D
time have both parties been amenable to a divorce on mutual
consent. Lack of consent to divorce in the present matter is also
apparent from the subsequent conduct of one of the parties. The
case at hand is therefore not covered by the questions referred
to the Constitution Bench in T.P. (C) No. 1118/2014. Further,       E
despite the reference order dated 29.06.2016, there have been
various instances where this court has exercised its powers to
grant divorce in such circumstances. [Paras 9 and 10][179-B-
D]
      2.3. Marriage is a tie between two parties. If this tie is    F
not working under any circumstances, there is no purpose in
postponing the inevitability of the situation merely because of
the pendency of the reference. [Para 14][183-C]
     3.1. However, there are many subsequent circumstances
                                                                    G
which have arisen in the present case. It is noticed that:
       (a) The respondent has resorted to filing multiple cases
in courts against the appellant. Such repeated filing of cases
itself has been held in judicial pronouncements to amount to
mental cruelty.                                                     H
172           SUPREME COURT REPORTS                      [2021] 6 S.C.R.


A          (b) Respondent filed W.P. No.20407/2013 praying for a writ
      of mandamus to initiate disciplinary action against the appellant,
      who was working as an Asst. Professor in the Department of
      History in Government Arts College, Karur. This writ petition
      was dismissed on 6.6.2019.
B           (c) The respondent sought some information from the
      College vide an RTI application dated 3.6.2013. She claimed the
      information received from the college was insufficient and filed
      an appeal.
            (d) The respondent thereafter filed Writ Petition No. 9516/
C     2014. The Madras High Court opined, in terms of the judgment
      dated 3.3.2016, that the respondent had raised unnecessary
      queries. Her queries sought information about her husband’s
      remarriage or whether he was living with somebody else, well
      known to her, and the proceedings were found to be an abuse
      of the process of the RTI Act.
D
            (e) The respondent made representations to the college
      authorities seeking initiation of disciplinary proceedings against
      the appellant. It was not confined to even those college
      authorities, but she made representations even to the Director
      of Collegiate Education and the Secretary, Department of Higher
E     Education (Tamil Nadu). Thus, she sought to somehow ensure
      that the appellant loses his job. Filing of such complaints seeking
      removal of one’s spouse from job has been opined as amounting
      to mental cruelty. [Para 15][183-D-G; 184-A-F]
            3.2. Further, on having succeeded before the first appellate
F     court, the respondent lodged a criminal complaint against the
      appellant under Section 494 IPC even though her appeal was
      pending before the High Court. She sought to array and accuse
      even the persons who had attended the second marriage. The
      High Court quashed the criminal proceedings in terms of order
G     dated 18.2.2019. [Para 16][184-G; 185-A]
             3.3. There are episodes of further harassment by the
      respondent even at the place of work of the appellant including
      insulting the appellant in front of students and professors, as is
      apparent from the judgment of the Trial Court. She is stated to
      have threatened the appellant of physical harm in front of his
H
            SIVASANKARAN v. SANTHIMEENAL                             173


colleagues as per the testimony of PW.3 and complained to the        A
appellant’s employer threatening to file a criminal complaint
against him (PW.3). The first appellate court somehow brushed
aside these incidents as having not been fully established on a
perception of wear and tear of marriage. The moot point is that
the marriage has not taken off from its inception. There can
                                                                     B
hardly be any ‘wear and tear of marriage’ where parties have
not been living together for a long period of time. The parties,
undisputedly, never lived together even for a day. [Para 17][185-
B-C]
      4.1. On facts, the marriage never took off from the first
day. The marriage was never consummated and the parties have         C
been living separately from the date of marriage for almost 20
years. The 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. All mediation efforts have failed. [Para 18][185-D-E]       D
      4.2. The continuing acts of the respondent would amount
to cruelty even if the same had not arisen as a cause prior to
the institution of the petition. This conduct shows disintegration
of marital unity and thus disintegration of the marriage. In fact,
there was no initial integration itself which would allow            E
disintegration afterwards. The fact that there have been
continued allegations and litigative proceedings and that can
amount to cruelty is an aspect taken note of by this court. [Para
19][185-E-G]
       4.3. This is one case w here both the ground of               F
irretrievable breakdown of marriage and the ground of cruelty
on account of subsequent facts would favour the grant of decree
of divorce in favour of the appellant. Thus, a decree of divorce
dissolving the marriage between the parties be passed not only
in exercise of powers under Article 142 of the Constitution on
account of irretrievable breakdown of marriage, but also on          G
account of cruelty under Section 13(1)(i-a) of the Act in light of
the subsequent conduct of the respondent during the pendency
of judicial proceedings at various stages. The decree of divorce
is, accordingly, passed. Marriage stands dissolved. [Paras 20,
21 and 22][186-A-C]                                                  H
174            SUPREME COURT REPORTS                      [2021] 6 S.C.R.


A           K. Srinivas Rao v. DA Deepa (2013) 5 SCC 226 :
            [2013] 2 SCR 126 ; Naveen Kohli v. Neelu Kohli
            (2006) 4 SCC 558 : [2006] 3 SCR 53 ; Vishwanath
            Agrawal v. Sarla Vishwanath Agrawal (2012) SCC
            Online SC 489 ; A. Jayachandra v. Aneel Kaur, (2005)
            2 SCC 22 : [2004] 6 Suppl. SCR 599 ; Malathi Ravi
B           v. B.V. Ravi, (2014) 7 SCC 640 : [2014] 6 SCR 218 –
            relied on.
            Shilpa Sailesh v. Varun Sreenivasan [Order of
            Supreme Court dated 29.06.2016] ; R. Srinivas
            Kumar v. R. Shametha (2019) 9 SCC 409 : [2019] 12
C           SCR 873 ; Munish Kakkar v. Nidhi Kakkar (2020) 14
            SCC 657 ; Hitesh Bhatnagar v. Deepa Bhatnagar
            (2011) 5 SCC 234 : [2011] 6 SCR 118 ; Sukhendu Das
            v. Rita Mukherjee (2017) 9 SCC 632 ; Parveen Mehta
            v. Inderjit Mehta (2002) 5 SCC 706 – referred to.
D                           Case Law Reference
      (2017) 9 SCC 632                  referred to          Para 7
      (2002) 5 SCC 706                  referred to          Para 7
      [2019] 12 SCR 873                 referred to          Para 11
E     (2020) 14 SCC 657                 referred to          Para 11
      [2011] 6 SCR 118                  referred to          Para 12
      [2013] 2 SCR 126                  relied on            Para 15
      [2006] 3 SCR 53                   relied on            Para 15
      [2004] 6 Suppl. SCR 599           relied on            Para 19
F
      [2014] 6 SCR 218                  relied on            Para 19
            CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.4984-
      4985 of 2021.
            From the Judgment and Order dated 25.02.2019 of the High
G     Court of Madras at Madurai Bench in Rev.Aplc (MD) Nos.193 and
      194 of 2018 in CMSA (MD) Nos.42 and 43 of 2013.
            Ms. V. Mohana, Sr. Adv., S. Gowthaman, Advs. for the Appellant.
            S. Nagamuthu, Sr. Adv., M. P. Parthiban, A. S. Vairawan,
      R.Sudhakaran, Ms. Shalini Mishra, T. Hari Hara Sudhan, Vikash G. R.,
H     Advs. for the Respondent.
              SIVASANKARAN v. SANTHIMEENAL                                   175


      The Judgment of the Court was delivered by                             A
      SANJAY KISHAN KAUL, J.
        1. The appellant-husband and the respondent-wife resolved to
tie the marital knot by solemnising their marriage as per the Hindu rites
and customs on 7.2.2002. It appears there was a crash landing at the
                                                                             B
take-of stage itself! The appellant claims that the respondent’s view
was that she had been coerced into marrying the appellant without giving
her consent, and left the marriage hall late at night and went to
Pudukkottai. An endeavour by the relatives of the appellant to persuade
her on the very next day to live with the appellant was not fruitful.
The marriage was never consummated. As the marriage did not work             C
out since its inception, the appellant issued a notice dated 25.02.2002
seeking divorce on the ground of cruelty under Section 13(1)(i-a) of
the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’).
Surprisingly, the respondent filed a petition for restitution of conjugal
rights soon thereafter. Respondent’s case was that the appellant and         D
his family demanded dowry and, on being unable to oblige, the appellant’s
brothers took him away from the Respondent’s company, rendering
consummation of the marriage impossible. She claims that it was the
appellant who refused to cohabit with her. In these circumstances,
appellant filed HMOP 24/2003 on 05.03.2003 under Section 13(1)(i-a)
of the Act, which was later re-numbered as HMOP 10/2005. Post-trial,         E
a decree of divorce was granted after almost 5 years on 17.3.2008 on
the ground of irretrievable breakdown of marriage. The appellant did
not waste much time and got married a second time on 23.3.2008 after
6 days. The respondent preferred an appeal before the Addl. District
Judge, Pudukkottai. It is her case that she filed an appeal on 1.7.2008,     F
within the period of limitation after obtaining all the requisite papers;
but the appeal was renumbered as CMA No.5 and 7 of 2011. The
appellate court set aside the decree of divorce while allowing the
petition for restitution of conjugal rights. The third round took place
before the High Court in second appeal and, in terms of judgment dated
                                                                             G
14.9.2018, the decree of divorce granted by the trial court was restored.
Thus, each stage of scrutiny took 5 years, and 15 years passed in the
litigation. In this period, the battle between the parties continued. This
inter alia posed a question mark on the status of the second marriage
of the appellant. The matter, however, did not end at this. The respondent
filed a review petition inter alia on the ground that it was not within      H
176             SUPREME COURT REPORTS                           [2021] 6 S.C.R.


A     the jurisdiction of the High Court or the trial court to grant a decree of
      divorce on the ground of irretrievable breakdown of marriage. The High
      Court noticed some aspects of alleged cruelty and dissolved the
      marriage by passing a decree of divorce on the ground of irretrievable
      breakdown of marriage. Thus, the review petition was allowed by the
B     impugned order dated 25.2.2019, which has been assailed in the present
      appeal.
             2. The endeavour to find a solution through mediation or any
      acceptable solution between the parties did not succeed. According to
      the learned counsel for the parties, the respondent was not willing to
      concede the decree of divorce on any terms even though both the
C
      parties are educated and living their separate lives now for almost two
      decades. In fact, learned counsel for the respondent even stated that
      she was not disturbed by nor wanted to afect the status of the second
      marriage; but was unwilling to concede to a scenario where her
      marriage with the appellant came to an end even though in view of the
D     financial status of the parties no maintenance was being claimed. In
      these circumstances, we are called upon to take a view of the matter
      in the given factual scenario and the subsequent developments, which
      are material, during the pendency of the proceedings at various stages
      of the judicial process.
E           3. We have examined the rival contentions of the parties and we
      have little doubt that this is one marriage which has not worked and
      cannot work.
            This is not only on account of the fact that the appellant has
      married a second time but also because the parties are so troubled by
F     each other that they are not willing to even think of living together. This,
      despite the fact that the respondent keeps on claiming that she is and
      was always willing to live with him.
             4. Insofar as irretrievable breakdown of marriage is concerned,
      no doubt, it does not exist as a ground of divorce under the Act. The
G     issue has been debated by the Law Commission in its various reports.
      Breakdown of marriage was incidentally considered by the Law
      Commission in its 59th report (1974), but the Commission made no
      specific recommendations in this regard. Thereafter in its 71st report
      (1978), the Law Commission departed from the fault theory of divorce
      to recognise situations where a marriage has completely broken down
H     and there is no possibility of reconciliation. Neither party need
               SIVASANKARAN v. SANTHIMEENAL                                     177
                   [SANJAY KISHAN KAUL, J.]

individually be at fault for such a breakdown of the marriage – it may          A
be the result of prolonged separation, clash of personalities, or
incompatibility of the couple. As the Law Commission pithily noted, such
marriages are ‘merely a shell out of which the substance is gone’. For
such situations, the Commission recommended that the law be amended
to provide for ‘irretrievable breakdown of marriage’ as an additional
                                                                                B
ground of divorce. This recommendation was reiterated by the Law
Commission in its 217th Report in 2010, after undertaking a suo moto
study of the legal issues involved. So far, the Law Commission’s
recommendations have not been implemented. In 2010, the government
introduced the Marriage Laws (Amendment) Bill, 2010, which inter alia
proposed to add irretrievable breakdown of marriage as a new ground             C
for divorce in both the Hindu Marriage Act, 1955 and the Special
Marriage Act, 1954. After receiving suggestions from relevant
stakeholders, the bill was amended and re- introduced as the Marriage
Laws (Amendment) Bill, 2013. This bill was never passed.
        5. The result is that, in appropriate cases, this court has granted     D
decrees of divorce exercising its unique jurisdiction under Article 142
of the Constitution of India, to do complete justice between the parties.
Such a course is being followed in varied kinds of cases, for instance
where there are inter se allegations between the parties, in order to
put a quietus to the matter, the parties withdraw these allegations and         E
by mutual consent, this court itself grants divorce. There are also cases
where the parties accept that there is an irretrievable breakdown of
marriage and themselves request for a decree of divorce. One of the
more difficult situations is where, in the opinion of the court, there is
irretrievable breakdown of marriage but only one of the parties is willing
to acknowledge the same and accept divorce on that account, while               F
the other side seeks to oppose it even if it means carrying on with the
marriage.
        6. The ground which is often taken to oppose such a decree of
divorce, apart from the absence of legislative mandate, is that the very
institution of marriage is distinctly understood in diferent countries. Under   G
the Hindu Law, it is sacramental in character and is supposed to be
an eternal union of two people - society at large does not accept divorce,
given the heightened importance of marriage as a social institution in
India. Or at least, it is far more difficult for women to retain social
acceptance after a decree of divorce. This, coupled with the law’s failure      H
178                SUPREME COURT REPORTS                                 [2021] 6 S.C.R.


A     to guarantee economic and financial security to women in the event of
      a breakdown of marriage; is stated to be the reason for the legislature’s
      reluctance to introduce irretrievable breakdown as a ground for divorce
      – even though there may have been a change in social norms over a
      period of time. Not all persons come from the same social background,
      and having a uniform legislative enactment is thus, stated to be difficult.
B
      It is in these circumstances that this court has been exercising its
      jurisdiction, despite such reservations, under Article 142 of the
      Constitution of India.
             7. A marriage is more than a seemingly simple union between
      two individuals. As a social institution, all marriages have legal, economic,
C     cultural, and religious ramifications. The norms of a marriage and the
      varying degrees of legitimacy it may acquire are dictated by factors
      such as marriage and divorce laws, prevailing social norms, and religious
      dictates. Functionally, marriages are seen as a site for the propagation
      of social and cultural capital as they help in identifying kinship ties,
D     regulating sexual behaviour, and consolidating property and social
      prestige. Families are arranged on the idea of a mutual expectation of
      support and amity which is meant to be experienced and acknowledged
      amongst its members. Once this amity breaks apart, the results can be
      highly devastating and stigmatizing. The primary efects of such
      breakdown are felt especially by women, who may find it hard to
E     guarantee the same degree of social adjustment and support that they
      enjoyed while they were married.
             8. We may notice that the aforesaid exercise has produced
      diferent judicial thought processes which have resulted in a reference
      to a Constitution Bench of this Court in T.P.(C) No.1118/2014.1 The
F     reference is on two grounds – (a) what could be the broad parameters
      for exercise of powers under Article 142 of the Constitution to dissolve
      the marriage between consenting parties without referring the parties
      to the family court to wait for the period prescribed under Section 13-
      B of the Act, and (b) whether the exercise of such jurisdiction under
G     Article 142 should be made at all or whether it should be left to be
      determined on the facts of each case.
            9. In fact, this has been the bedrock of the submissions of the
      learned counsel for the respondent who has strongly opposed any

      1
H         Shilpa Sailesh v. Varun Sreenivasan; order dated 29.06.2016.
              SIVASANKARAN v. SANTHIMEENAL                                   179
                  [SANJAY KISHAN KAUL, J.]

endeavour by this court to exercise jurisdiction under Article 142 of the    A
Constitution to give a decree of divorce on account of irretrievable
breakdown of marriage in the absence of consent of the parties.
However, we must note that the remit of the questions referred in TP
(C) No. 1118/2014 is rather specific. The reference is limited to cases
of divorce on mutual consent, and it raises the issue of whether the
                                                                             B
period prescribed under S. 13-B of the Act is mandatory. The present
case involves a divorce petition filed under S. 13(1)(i-a) of the Act, and
at no point of time have both parties been amenable to a divorce on
mutual consent. Lack of consent to divorce in the present matter is
also apparent from the subsequent conduct of one of the parties, as
discussed later in this judgment. The case at hand is therefore, in our      C
opinion, not covered by the questions referred to the Constitution Bench
in T.P. (C) No. 1118/2014.
      10. We may further note that despite the reference order dated
29.06.2016, there have been various instances where this court has
exercised its powers to grant divorce in such circumstances.                 D
        11. We may initially refer to two judicial pronouncements in R.
Srinivas Kumar v. R. Shametha 2 and Munish Kakkar v. Nidhi
Kakkar3 where it has been clearly opined that there is no necessity of
consent by both the parties for exercise of powers under Article 142
of the Constitution of India to dissolve the marriage on the ground of
irretrievable breakdown of marriage.                                         E
       12. In R. Srinivas Kumar,4 the parties had been living apart for
22 years and all endeavours to save the marriage had failed. We may
note that in Hitesh Bhatnagar v. Deepa Bhatnagar5, it was opined
by this Court that courts can dissolve a marriage as irretrievably broken
down only when it is impossible to save the marriage, all eforts have        F
been made in that regard, the Court is convinced beyond any doubt that
there is actually no chance of the marriage surviving, and it is broken
beyond repair. It could be useful to reproduce the observations made
in para 5.2 to para 8 as under:
      “5.2. In Naveen Kohli [Naveen Kohli v. Neelu Kohli, (2006)             G
      4 SCC 558] , a three-Judge Bench of this Court has observed
      as under :
2
  (2019) 9 SCC 409.
3
  (2020) 14 SCC 657.
4
  Supra
5
  (2011) 5 SCC 234.                                                          H
180      SUPREME COURT REPORTS                          [2021] 6 S.C.R.


A        “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 is beyond repair. The marriage becomes a
B
         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.
                                  ***
C
         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
D        which in fact has 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
E        proceedings have been initiated by the appellant against the
         respondent, the matrimonial bond between the parties is
         beyond repair. 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
F        recognition of the fact and to declare defunct de jure what is
         already defunct de facto.”
                                                     (emphasis supplied)
      A similar view has been expressed in Samar Ghosh [Samar
      Ghosh v. Jaya Ghosh, (2007) 4 SCC 511].
G
      6. In the similar set of facts and circumstances of the case, this
      Court in Sukhendu Das [Sukhendu Das v. Rita Mukherjee,
      (2017) 9 SCC 632 : (2017) 4 SCC (Civ) 714] has directed to
      dissolve the marriage on the ground of irretrievable breakdown
      of marriage, in exercise of powers under Article 142 of the
H     Constitution of India.
                   SIVASANKARAN v. SANTHIMEENAL                                    181
                       [SANJAY KISHAN KAUL, J.]

            7. Now so far as submission on behalf of the respondent wife           A
            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
                                                                                   B
            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   C
            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 sufer financially in future and she
            may not have to depend upon others.
            8. This Court, in a series of judgments, has exercised its inherent    D
            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 the divorce could be granted.
                                                                                   E
            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     F
            Article 142 of the Constitution of India and to dissolve the
            marriage between the parties.”
            13. In Munish Kakkar case6, the following observations were
made:
                                                                                   G
            “19. We may note that in a recent judgment of this Court, in
            R. Srinivas Kumar v. R. Shametha, 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
6
    supra                                                                          H
182      SUPREME COURT REPORTS                           [2021] 6 S.C.R.


A     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
B
      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 1(2019) 9 SCC 409 10 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
C     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
D
      under Article 142 of the Constitution of India to bring an end to
      it.
      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
E     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
F     endeavour to even bring those to an end.
      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, the Court can extend itself to put a quietus to
G     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
H     decades battling each other, and there can always be hope, even
              SIVASANKARAN v. SANTHIMEENAL                                     183
                  [SANJAY KISHAN KAUL, J.]

      at this age, for a better life, if not together, separately. We, thus,   A
      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.”
      The aforesaid are two illustrative cases but there are many more
spread over diferent periods of time.7                                         B
       14. We are conscious that the Constitution Bench is examining
the larger issue but that reference has been pending for the last five
years. Living together is not a compulsory exercise. But marriage is a
tie between two parties. If this tie is not working under any
circumstances, we see no purpose in postponing the inevitability of the        C
situation merely because of the pendency of the reference.
       15. However, the aforesaid is not the only issue under which the
given facts of a case can be examined. No doubt, the courts below did
not find adequate material to come to the conclusion that the appellant
was entitled to divorce on grounds of cruelty. However, there are many         D
subsequent circumstances which have arisen in the present case which
necessitated the examination of this aspect. The question, thus, is
whether the respondent’s conduct after the initial trigger for divorce
amounts to mental cruelty. On the basis of material on record, we
endeavour to deal with this aspect and, in that behalf, we notice the          E
following:
            (a) The respondent has resorted to filing multiple cases in
                courts against the appellant. It may be noticed that such
                repeated filing of cases itself has been held in judicial
                pronouncements to amount to mental cruelty.8                   F
            (b) Respondent filed W.P. No.20407/2013 praying for a writ
                of mandamus to initiate disciplinary action against the
                appellant, who was working as an Asst. Professor in
                the Department of History in Government Arts College,
                Karur. This writ petition was dismissed on 6.6.2019.           G

7
  Sukhendu Das v. Rita Mukherjee (2017) 9 SCC 632; Parveen Mehta v. Inderjit
Mehta (2002) 5 SCC 706.
8
  K. Srinivas Rao v. DA Deepa (2013) 5 SCC 226; Naveen Kohli v. Neelu Kohli
(2006) 4 SCC 558; Vishwanath Agrawal v. Sarla Vishwanath Agrawal (2012)
SCCOnline SC 489.                                                              H
184               SUPREME COURT REPORTS                          [2021] 6 S.C.R.


A                   (c) The respondent sought some information from the
                        College vide an RTI application dated 3.6.2013. She
                        claimed the information received from the college was
                        insufficient and filed an appeal. She sought the service
                        records pertaining to the appellant, apart from other
                        documents such as the identity card issued to the
B
                        appellant under the Star Health Insurance Scheme and
                        prior permission obtained by the appellant for purchasing
                        a piece of property owned by the Tamil Nadu Housing
                        Board etc.
                    (d) The respondent thereafter filed Writ Petition No. 9516/
C                       2014. Even the information already furnished to her was
                        again sought for. The Madras High Court opined, in
                        terms of the judgment dated 3.3.2016, that the
                        respondent had raised unnecessary queries. Her queries
                        sought information about her husband’s remarriage or
D                       whether he was living with somebody else, well known
                        to her, and the proceedings were found to be an abuse
                        of the process of the RTI Act.
                    (e) The respondent made representations to the college
                        authorities seeking initiation of disciplinary proceedings
E                       against the appellant. It was not confined to even those
                        college authorities, but she made representations even
                        to the Director of Collegiate Education and the
                        Secretary, Department of Higher Education (Tamil
                        Nadu). She sought disciplinary proceedings against the
                        appellant on account of the second marriage despite the
F                       fact that the second marriage took place soon after the
                        decree of divorce. Thus, she sought to somehow ensure
                        that the appellant loses his job. Filing of such complaints
                        seeking removal of one’s spouse from job has been
                        opined as amounting to mental cruelty.9
G           16. On having succeeded before the first appellate court, the
      respondent lodged a criminal complaint against the appellant under
      Section 494 IPC even though her appeal was pending before the High
      Court. She sought to array and accuse even the persons who had

      9
H         K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
                  SIVASANKARAN v. SANTHIMEENAL                                  185
                      [SANJAY KISHAN KAUL, J.]

attended the second marriage. The High Court quashed the criminal               A
proceedings in terms of order dated 18.2.2019.
       17. There are episodes of further harassment by the respondent
even at the place of work of the appellant including insulting the
appellant in front of students and professors, as is apparent from the
judgment of the Trial Court. She is stated to have threatened the               B
appellant of physical harm in front of his colleagues as per the testimony
of PW.3 and complained to the appellant’s employer threatening to file
a criminal complaint against him (PW.3). The first appellate court
somehow brushed aside these incidents as having not been fully
established on a perception of wear and tear of marriage. The moot
                                                                                C
point is that the marriage has not taken of from its inception. There
can hardly be any ‘wear and tear of marriage’ where parties have not
been living together for a long period of time. The parties, undisputedly,
never lived together even for a day.
        18. We are, thus, faced with a marriage which never took of from
                                                                                D
the first day. The marriage was never consummated and the parties
have been living separately from the date of marriage for almost 20
years. The 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. All mediation eforts have
failed.                                                                         E
        19. In view of the legal position which we have referred to
aforesaid, these continuing acts of the respondent would amount to
cruelty even if the same had not arisen as a cause prior to the institution
of the petition, as was found by the Trial Court. This conduct shows
disintegration of marital unity and thus disintegration of the marriage.10      F
In fact, there was no initial integration itself which would allow
disintegration afterwards. The fact that there have been continued
allegations and litigative proceedings and that can amount to cruelty is
an aspect taken note of by this court.11 The marriage having not taken
of from its inception and 5 years having been spent in the Trial Court,         G
it is difficult to accept that the marriage soon after the decree of divorce,
within 6 days, albeit 6 years after the initial inception of marriage,
amounts to conduct which can be held against the appellant.

10
     A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22
11
     Malathi Ravi v. B.V. Ravi, (2014) 7 SCC 640                                H
186             SUPREME COURT REPORTS                         [2021] 6 S.C.R.


A           20. In the conspectus of all the aforesaid facts, this is one case
      where both the ground of irretrievable breakdown of marriage and the
      ground of cruelty on account of subsequent facts would favour the grant
      of decree of divorce in favour of the appellant.
              21. We are, thus, of the view that a decree of divorce dissolving
B     the marriage between the parties be passed not only in exercise of
      powers under Article 142 of the Constitution of India on account of
      irretrievable breakdown of marriage, but also on account of cruelty under
      Section 13(1)(i-a) of the Act in light of the subsequent conduct of the
      respondent during the pendency of judicial proceedings at various
      stages.
C
            22. The decree of divorce is, accordingly, passed. Marriage
      stands dissolved.
             23. The appeals are allowed in the aforesaid terms leaving the
      parties to bear their own costs.
D
      Bibhuti Bhushan Bose                                       Appeals allowed.




E




F




G




H