VIKAS KANAUJIAversusSARITA

                 [2024] 7 S.C.R. 933 : 2024 INSC 517

                               Vikas Kanaujia
                                     v.
                                   Sarita
                       (Civil Appeal No. 7380 of 2024)
                                  10 July 2024
           [Vikram Nath* and Satish Chandra Sharma, JJ.]

                            Issue for Consideration
       Whether the present appeal falls under the criteria of ‘irretrievable
       breakdown of marriage,’ warranting the Supreme Court to exercises
       its powers under Article 142 of the Constitution to do complete
       justice.

                                  Headnotes†
       Marriage – Divorce – Whether the High Court erred in
       allowing the appeal of the Respondent and setting aside the
       decree of divorce granted by Family Court – Constitution
       of India – Article 142:
       Held: i)The Appellant-husband and Respondent-wife have lived
       together on their own will for hardly 43 days since marriage – The
       period of separation has been more than 22 years – The parties
       have fought multiple legal battles against each other since 2002
       itself with six cases filed against each other, including criminal
       cases – In the Impugned Order the High Court has set aside the
       order of the Family Court, stating that the parties are not living
       separately out of their free will and it is the Appellant who has
       refused to cohabit with the Respondent.
       ii) In the present case the Respondent claims that she is
       willing to live with the Appellant – Respondent’s actions are
       not in consonance with her claim – Appellant contends that
       Respondent’s claim of willingness to live together is a false claim
       meant only to mislead the Court, delay the proceedings and
       harass the Appellant – Considering the long separation period
       of 22 years, the sour relations developed due to continuous
       legal battles, and the fact that both the parties are in their 50s
       now, having their independent lives makes the possibility of
       cohabitation implausible – Accordingly, the Supreme Court held
       the case to be fit for exercise of extraordinary powers conferred

* Author
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       under Article 142 of the Constitution and grant the decree of
       divorce under irretrievable breakdown of marriage in order to do
       complete justice to the parties – The judgement passed by the
       High Court of Allahabad passed in First Appeal No. 31 of 2007
       is set aside. [Paras 15, 16, 17 and 19]

                               Case Law Cited
       Shilpa Shailesh v. Varun Sreenivasan [2023] 5 SCR 165 : 2023
       SCC OnLine SC 544; Rajib Kumar Roy v. Sushmita Saha, 2023
       SCC OnLine SC 1221 – relied on.

                                 List of Acts
       Constitution of India; Hindu Marriage Act, 1955.

                              List of Keywords
       Irretrievable breakdown of marriage; Supreme Court’s power under
       Article 142 to do complete justice.

                             Case Arising From
       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7380 of 2024
       From the Judgment and Order dated 22.08.2019 of the High Court
       of Judicature at Allahabad in FA No. 31 of 2007
                          Appearances for Parties
       Sanjay Jain, Gaurav Agrawal, Sr. Advs., Lalit Chauhan, Ms. Mrinal
       Gopal Elker, Ms. Shambhvi Mansingh, Ms. Jasmine Chauhan, Ms.
       Harshita Sukheja, Nishank Tripathi, Ms. Palak Jain, Advs. for the
       Appellant.
       Ms. Meenakshi Arora, Abhinav Mukerji, Sr. Advs., Ms. Pratishtha Vij,
       Chritarth Palli, Advs. for the Respondent.
                  Judgment / Order of the Supreme Court

                                 Judgment
       Vikram Nath, J.
1.     Leave granted.
2.     The present appeal is preferred by Appellant-Dr. Vikas Kanaujia
       against the impugned order of High Court of Allahabad dated
[2024] 7 S.C.R.                                                        935

                         Vikas Kanaujia v. Sarita


      22.08.2019, passed in First Appeal No. 31 of 2007, whereby the
      High Court allowed the appeal and set aside the decree of divorce
      granted by the Family Court, Meerut on 20.12.2006 in Matrimonial
      Case No. 123 of 2003 filed by the Appellant. The Appellant-husband
      had filed the petition for dissolution of marriage under Section 13 of
      the Hindu Marriage Act, 19551 on the ground of Cruelty.
3.    The factual matrix of the case, along with the record of multiple
      legal proceedings between the parties, is summarised as follows:
4.    Appellant-Dr. Vikas Kanaujia and Respondent-Dr. Sarita got married
      to each other on 20.02.2002 in accordance with Hindu Rites
      and Customs. The Respondent-wife came to her marital home
      at Meerut. The Appellant submitted in his plaint, that marriage
      was consummated but later the relationship between parties was
      strained as Respondent refused to perform marital obligations and
      misbehaved with his mother. On 22.02.2002, the younger brother
      and maternal aunt of the Respondent allegedly visited the house
      and the Respondent left for her paternal home along with them.
      The Appellant brought her back to marital home on 04.03.2002.
      Afterwards both the Appellant and Respondent went to Udhampur
      (Jammu and Kashmir) where the Appellant was working as an
      eye surgeon. However, the Appellant claims that behaviour of
      Respondent was cold and indifferent towards him. They both
      returned on 11.03.2002. On 17.03.2002 the Thirteenth day function
      (Terahi Ceremony) was held for a family member of Appellant. On
      the evening of same day, the Respondent left her marital home.
      Since then, the Respondent is residing at her paternal home. Thus,
      the Appellant and Respondent have lived together for barely 23 days
      as the Respondent shifted to her paternal home before completing
      even a month at her marital home.
5.    The Appellant states that he made repeated attempts to bring
      back the Respondent but he failed as Respondent refused to live
      with him. Thus, the Appellant filed a suit under Section 9 of HMA
      for restitution of conjugal rights as Suit No. 598 of 2002. The
      Respondent, on the other hand, filed an application under Section
      24 of the HMA for maintenance as Suit No. 336 of 2002. Both the


1    In short, HMA
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       cases were listed together before the Family Court on 28.11.2002
       however allegedly the Respondent and her father misbehaved with
       the father of Appellant on the day of proceedings. Since no attempts
       of reconciliation were successful, on 26.02.2003 the Appellant filed a
       suit for dissolution of marriage under Section 13 of the HMA on the
       ground of ‘Cruelty’ as Matrimonial Case No. 123 of 2003. Appellant
       claimed ‘cruelty’ against Respondent on two grounds. First, the
       Respondent did not fulfil her marital obligation by depriving the
       Appellant of his conjugal rights. Second, the Respondent caused
       mental cruelty by her temperament and misbehaviour with family
       members of Appellant. On the other hand, in the Written Statement
       the Respondent-wife has stated that Appellant was unhappy in
       marriage since day one. She never refused to join the company
       of Appellant and live together. But the Appellant and his family
       wanted to remarry him for dowry. They had allegedly demanded
       dowry from Respondent as well.
6.     While the proceedings in Matrimonial suit were pending, on
       31.07.2006 the Family Court rejected the application filed by
       Respondent seeking maintenance under Section 24 of HMA, on the
       ground that Respondent was also a doctor and her earnings are at
       par with the Appellant.
7.     The suit for restitution of conjugal rights was later withdrawn by
       the Appellant. On 26.05.2003, the Respondent wife filed a petition
       under Section 125 of the Code of Criminal Procedure, 1973 seeking
       maintenance as Case no. 89 of 2011. It was dismissed on 29.11.2013
       on the ground that Respondent was earning at par with Appellant
       and thus not entitled to maintenance.
8.     Further, on 24.02.2004 the Respondent filed Criminal complaint at
       Meerut under Sections 498A, 406 and 34 of Indian Penal Code, 18602
       against the Appellant, his parents and siblings. In this complaint
       she alleged mental harassment, dowry demand and retention of the
       dowry articles by the accused persons in her marital home, against
       the accused persons. On 05.11.2004, FIR bearing No. 965/2004
       was registered against the Appellant and abovementioned family
       members. As the Sessions Court passed an order for Conciliation


2    In short, ‘IPC’
[2024] 7 S.C.R.                                                      937

                        Vikas Kanaujia v. Sarita


     on 15.06.2005, the Appellant and Respondent lived together for
     20 days from 15.06.2005 to 05.07.2005. However, on 05.07.2005,
     the police arrested family members of Appellant- his mother, father,
     sister and father, who were subsequently granted bail.
9.   On 20.12.2006, the Family Court passed final order in Matrimonial
     Case No. 123 of 2003 by granting decree of divorce to Appellant. It
     decreed the suit on the ground of cruelty holding that Respondent
     had initiated false criminal proceedings against the Appellant. Thus,
     the Respondent filed First Appeal No. 31 of 2007 before the High
     Court.
10. Meanwhile on 08.07.2013, the Metropolitan Magistrate discharged
    the father, brother, and sister of the Appellant from all charges
    in connection with FIR No. 965 of 2004. The Respondent filed
    application for framing charges under Section 498A of IPC against
    the brother and sister of Appellant. However, the Magistrate rejected
    this application on 26.11.2013. On 18.12.2017, the Metropolitan
    Magistrate passed final order acquitting the Appellant and his
    mother. The Respondent filed Appeal before the Sessions Court.
    On 02.03.2023, the Sessions Court upheld the acquittal order
    passed by trial court.
11. By the Impugned order passed on 22.08.2019, the High Court
    allowed the appeal of Respondent filed in matrimonial case against
    the order of Family Court, thereby dismissing the petition to grant
    divorce. The High Court denied the ground of irretrievable breakdown
    of marriage stating that parties have not been living separately
    on account of their free will. It was the appellant who refused to
    co-habit with the Respondent and she herself did not desert him.
    Thus, the Appellant has approached this Court against the order
    of High Court which denied him divorce.
12. Afterwards, allegedly the Respondent visited residence of Appellant
    and made unsavoury enquiries in neighbourhood. She further filed
    a Missing Persons Complaint alleging that Appellant is missing. On
    07.10.2019, the Respondent entered into the workplace of Appellant
    in OPD area of department of Ophthalmology in Sanjay Gandhi Post
    Graduate Institute of Medical Sciences, Lucknow along with police
    personnel, causing disturbance in the department. The Appellant
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       even got a warning letter from the head of the department to resolve
       personal grievances outside the premises. The police frequently
       visited the department and made enquiries about appellant in
       connection with the Missing complaint filed by Respondent.
13. We have heard learned counsel for the parties and perused the
    material on record. We are of the opinion that this is a fit case to
    exercise powers conferred on this Court under Article 142 of the
    Constitution of India. A Constitution Bench of this Court in Shilpa
    Shailesh v. Varun Sreenivasan3 has held that this Court has the
    discretion to dissolve the marriage on the ground of irretrievable
    breakdown of marriage in order to do ‘complete justice’ to the
    parties, even if one spouse opposes such prayer. Relevant portion
    of Paragraph 50 of the judgment is reproduced hereunder:
            “………          …………. ………..
            (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
            the background in which the party opposing the dissolution
            is placed.”
14. In the present case we are convinced that the marriage has failed
    completely and there is no possibility of parties living together and
    thus the continuation of further legal relationship is unjustified.


3   [2023] 5 SCR 165 : 2023 SCC OnLine SC 544
[2024] 7 S.C.R.                                                         939

                              Vikas Kanaujia v. Sarita


15. The husband and wife have lived together on their own will for hardly
    23 days since marriage. They further lived together for 20 more days
    from 15.06.2005 to 05.07.2015 as Sessions Court passed order for
    conciliation. Thus, in total the parties have not lived together for more
    than 43 days. The Respondent left her matrimonial house within the
    first month of marriage. The period of separation has been more than
    22 years. The possibility of parties living together is further reduced
    as parties are in their early 50s now and have built independent
    lives. Further, the parties have fought multiple legal battles against
    each other since 2002 itself with six cases filed against each other,
    including criminal cases. The Respondent had filed a criminal case
    against the Appellant and his family members where they were
    arrested although subsequently discharged and acquitted.
16. Although the Respondent claims that she is willing to live with the
    Appellant believing in the sanctity of marriage, her actions are not
    in consonance with her claim. In this long period of 22 years, there
    was no one to stop her from living together with the Appellant. The
    mediation and conciliation proceedings have failed. The Appellant
    on the other hand states that the claim of willingness to live together
    is falsely projected claim before the Court of law only to mislead the
    Court, delay the proceedings and harass the appellant.
17. Thus, the effective cumulation of actions of both the parties in past 22
    years since marriage has resulted in demolition of their matrimonial
    bond beyond repair. The marriage has ceased to exist both in substance
    and in reality. The relation has even taken a sour taste as the families
    of parties have also developed rivalries. The act of Respondent to lodge
    a missing complaint against Appellant after the delivery of impugned
    order is also indicative of the bitter relation between the parties.
    Considering the long separation period of 22 years, lack of existence
    of marriage between the parties and the sour relations developed due
    to continuous legal battles, we deem this case to be fit for exercise of
    extraordinary powers conferred under Article 142 of the Constitution.
18. In the case of Rajib Kumar Roy vs Sushmita Saha,4 this Court
    exercised the power conferred under Article 142 of the Constitution
    of India by dissolving the marriage between parties who were living


4   2023 SCC OnLine SC 1221
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       separately for 12 years. Paragraph Nos. 9,10 and 11 of the judgement
       are reproduced hereunder:
            "9.   Continued bitterness, dead emotions and long
                  separation, in the given facts and circumstances of
                  a case, can be construed as a case of “irretrievable
                  breakdown of marriage”, which is also a facet of
                  “cruelty”. In Rakesh Raman v. Kavita, 2023 SCC
                  OnLine SC 497, this is precisely what was held, that
                  though in a given case cruelty as a fault, may not
                  be attributable to one party alone and hence despite
                  irretrievable breakdown of marriage keeping the
                  parties together amounts to cruelty on both sides.
                  Which is precisely the case at hand.
            10. Whatever may be the justification for the two living
                separately, with so much of time gone by, any marital
                love or affection, which may have been between the
                parties, seems to have dried up. This is a classic case
                of irretrievable breakdown of marriage. In view of the
                Constitution Bench Judgment of this court in Shilpa
                Sailesh v. Varun Sreenivasan, 2023 SCC OnLine SC
                544 which has held that in such cases where there is
                irretrievable breakdown of marriage then dissolution
                of marriage is the only solution and this Court can
                grant a decree of divorce in exercise of its power
                under Article 142 of the Constitution of India.
            11. We therefore declare the marriage to have broken
                down irretrievably and therefore in exercise of our
                jurisdiction under Article 142 of the Constitution of
                India we are of the considered opinion that this being
                a case of irretrievable breakdown of marriage must
                now be dissolved by grant of decree of divorce.”
19. In light of the facts and circumstances of the present case, along with
    powers conferred under Article 142 of the Constitution of India and
    judicial precedents discussed herein, we hereby grant the decree
    of divorce on account of irretrievable breakdown of marriage. As
    both the parties are professionally qualified medical doctors and
[2024] 7 S.C.R.                                                           941

                             Vikas Kanaujia v. Sarita


     have sufficient and equal earnings, we are not inclined to award
     any permanent alimony.
20. The judgement dated 22.08.2019 passed by the High Court of
    Allahabad is hereby set aside. The marriage between the parties is
    dissolved, exercising powers under Article 142 of the Constitution
    of India. The present appeal is accordingly allowed.
21. Pending application(s), if any, is/are disposed of.


     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Gaurav Upadhyay, Hony. Associate Editor
                                 (Verified by: Kanu Agrawal, Adv.)