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SUPREME COURT OF INDIA
Aniruddha Bose, Bela M. Trivedi, JJ.
Dr. Nirmal Singh Panesar – Appellant
Versus
Mrs. Paramjit Kaur Panesar @ Ajinder Kaur Panesar – Respondent
Civil Appeal No.2045 of 2011
Decided On : 10-10-2023
Hindu Marriage Act, 1955 – Section 13 – Constitution of India – Article 142 – Divorce – Irretrievable breakdown of marriage – Allegations of ‘cruelty’ and ‘desertion’ are legitimate grounds for seeking decree of divorce under Section 13(1) of Act – Cruelty may be mental or physical, intentional, or unintentional – Cruelty has to be construed and interpreted considering type of life parties are accustomed to or their economic and social conditions and their culture and human values to which they attach importance – Each case has to be decided on its own merits – Appellant had failed to prove that respondent had treated appellant with “Cruelty” or that respondent had “Deserted” petitioner – Parties are staying separate since last many years and all efforts to bring them together have failed – One may presume that marriage is emotionally dead and beyond salvation and that there is an irretrievable break down of marriage between parties – However, institution of marriage occupies an important place and plays an important role in society – It is governed not only by letters of law but by social norms as well – It would not be desirable to accept formula of “irretrievable break down of marriage” as a strait-jacket formula for grant of relief of divorce under Article 142 of Constitution – Respondent has expressed her sentiments that she does not want to die with stigma of being a “divorcee” woman – Court not inclined to dissolve marriage on the ground of irretrievable break down of marriage – Appeal dismissed. (Paras 9, 10, 14, 15, 18, 19 and 20)
Facts of the case:
“Should the irretrievable breakdown of marriage necessarily result in the dissolution of marriage in exercise of powers under Article 142 of Constitution of India, when such is not a ground for
divorce under the Hindu Marriage Act, 1955?” - is the question posed before Court.
Findings of Court:
Appellant-husband is aged about 89 years and respondent-wife is aged about 82 years. Respondent all throughout her life has maintained the sacred relationship since 1963 and has taken care of her three children all these years, despite the fact that the appellant-husband had exhibited total hostility towards them. The respondent is still ready and willing to take care of her husband and does not wish to leave him alone at this stage of life.
Result : Appeal dismissed.
Based on the provided legal document, the key points regarding divorce law and the concept of irretrievable breakdown of marriage are as follows:
The formula of "irretrievable breakdown of marriage" should not be viewed as a rigid or strait-jacket criteria for granting divorce under Article 142 of the Constitution. The exercise of jurisdiction under this article requires careful and cautious discretion to ensure complete justice for both parties (!) (!) .
Grounds such as cruelty and desertion are legitimate and recognized reasons for seeking a divorce under the relevant statutory provisions. Cruelty can be mental or physical, intentional or unintentional, and must be interpreted considering the social, economic, and cultural context of the parties. Each case must be decided on its own merits, with careful consideration of the nature of conduct and its impact on the spouse (!) (!) (!) (!) .
The burden of proof lies on the spouse seeking divorce to establish the existence of cruelty or desertion, including proving the factum of separation and the intent to bring cohabitation to an end, without the consent of the other spouse and without reasonable cause (!) (!) .
Long periods of separation alone do not automatically justify a decree of divorce on the ground of irretrievable breakdown. The court must evaluate whether the marriage is beyond salvage, considering factors such as the duration of separation, attempts at reconciliation, and the emotional state of the parties (!) (!) .
The power under Article 142 of the Constitution is a discretionary one, which allows the court to dissolve a marriage even when there is opposition from one spouse, provided that the marriage has completely failed and is beyond repair. This power must be exercised with the aim of doing complete justice, balancing the circumstances of both parties (!) (!) .
While the court recognizes that marriage plays an important societal and social role, it also emphasizes that the discretion to dissolve a marriage on the grounds of its irretrievable breakdown is not a right but a careful exercise of judicial discretion. The court must consider the social norms, the emotional and cultural implications, and the specific facts of each case (!) (!) (!) .
The sentiments and welfare of the parties, especially in cases involving senior citizens, are important considerations. The court may decline to dissolve the marriage if doing so would cause injustice or hardship, particularly when one party expresses a desire to maintain the marriage for personal or cultural reasons (!) (!) .
In summary, while the concept of irretrievable breakdown can be a factor in divorce proceedings under Article 142, it is not an automatic or exclusive ground for divorce. The court exercises its discretion to ensure justice, considering all relevant social, emotional, and factual circumstances.
JUDGMENT : .
BELA M. TRIVEDI, J.
1. “Should the irretrievable breakdown of marriage necessarily result in the dissolution of marriage in exercise of powers under Article 142 of the Constitution of India, when such is not a ground for divorce under the Hindu Marriage Act 1955?” - is the question posed before us.
2. The appellant is a qualified doctor, and was Commissioned Air Force Officer. He retired on 30.04.1990 as Wing Commander. The respondent is also a qualified teacher, who was working in a Central School, and has retired now. The appellant had filed the Divorce proceedings on 12.03.1996 before the District Court, Chandigarh on two grounds, namely ‘cruelty’ and ‘desertion’ as contemplated in Section 13(1)(ia) and 13(1)(ib) respectively of the Hindu Marriage Act 1955 (hereinafter referred to as the said Act).
3. The instant appeal is directed against the judgment and order dated 18.02.2009 passed by the High Court of Punjab and Haryana at Chandigarh in LPA No. 195/2001 in FAO No. 44-M/2000 preferred by the appellant-husband, whereby the Division Bench of the High Court while dismissing the said LPA, had confirmed the judgment and decree dated 21.12.2000 passed by the Single Bench in the FAO No.44-M of 2000. The said FAO No. 44-M/2000 was preferred by the respondent-wife, against the judgment and decree dated 05.02.2000 passed by the District Judge, Chandigarh (hereinafter referred to as the District Court) in HMA No.63 of 1996, which had vide the said decree dated 05.02.2000 allowed the HMA filed by the appellant-husband, and dissolved the marriage between the parties under Section 13 of the said Act.
4. It is not disputed that the parties had married as per the Sikh rites on 10.03.1963 at Amritsar. The marriage was consummated and they were blessed with three children- two daughters - Harpreet Kaur and Rupdaman Kaur (both married now), and one son- Kunwarjit Singh Panesar. As per the case of the appellant, he was serving in the Indian army and the respondent was serving as a teacher in Central School in Amritsar. Till January 1984, the relations between the parties were normal. The acrimony in their relationship appears to have developed when the appellant was posted at Madras in January 1984 and the respondent did not join him, and preferred to stay initially with the parents of the appellant and thereafter with her son. Despite sincere efforts having been made by the parties, the differences and disputes could not be resolved, which ultimately led the appellant to file Divorce proceedings in the District Court.
5. As stated hereinabove, the District Court granted the decree of divorce, as prayed for by the appellant however the Single Bench of the High Court reversed the same and the Division Bench of the High Court confirmed the judgment and order passed by the Single Bench vide the impugned order.
6. At the outset, it may be stated that both the parties are in the late evening of their lives, in as much as the appellant is aged about 87 years and the respondent is aged about 82 years. The Court considering the age of the parties, had expected them to sit together and explore the possibility of an amicable settlement, however the same having failed, the Court had no option but to hear the respective learned counsels for the parties on merits.
7. Mr. Vipin Gogia, the learned advocate appearing for the appellant submitted that the High Court had committed gross error in reversing the well-reasoned decree of divorce granted by the District Court, which had concluded that the respondent had treated the appellant with cruelty and had deserted the appellant without any reasonable cause as alleged in the divorce petition. According to him, the acts of the respondent in not joining the appellant when he was transferred to Madras, and thereafter not taking care of the appellant though he had a heart problem, and subsequently making complaints to the Air Force Authorities against the appellant to malign his image, were the acts of “Cru
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