Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(SC) 70

SUPREME COURT OF INDIA
B.R. GAVAI, PRASHANT KUMAR MISHRA, JJ.
Prakashchandra Joshi – Appellant
Versus
Kuntal Prakashchandra Joshi @ Kuntal Visanji Shah – Respondent
Civil Appeal No. 934 of 2024, SLP (C) No. 21139 of 2021
Decided On : 24-01-2024

Advocates appeared:
For the Petitioner(s): Mr. Yasobant Das, Sr. Adv. Mr. Dhananjay Bhaskar Ray, AOR

IMPORTANT POINT
Divorce – A dead marriage must be given a decent quietus.

Headnote:
Hindu Marriage Act, 1955 – Section 13 – Constitution of India – Article 142 (1) – Divorce – Cruelty and desertion by wife – In proceedings initiated by appellant for restitution of conjugal rights under Section 9 of Hindu Marriage Act, respondent did not appear despite receiving summons – Similarly, in present divorce proceedings also respondent failed to enter appearance despite service of notice in Trial Court, High Court and Supreme Court as well – Respondent does not wish to continue marital chord and is not responding to court summons much less request made by appellant – Parties are residing separately since February, 2011 and there have been no contact whatsoever between them during this long period of almost 13 years – Present is a case of irretrievable breakdown of marriage as there is no possibility of couple staying together – Marriage between parties dissolved on the ground of irretrievable breakdown in exercise of powers under Article 142(1) of Constitution of India. (Paras 12, 13, 15 and 15)
Facts of the case:
Instant appeal is directed against judgment and order impugned dated 24.06.2021 passed by High Court of Judicature at Bombay in Family Court Appeal whereby High Court, while affirming order of Family Court, dismissed appeal seeking dissolution of marriage by a decree of divorce. Short question that arises for consideration is as to whether a decree for divorce can be granted for reason that marriage has irretrievably broken down.
Findings of Court:
Marriage between parties solemnized on 05.01.2004 is dissolved by a decree of divorce. A decree to this effect be drawn accordingly.
Result : Appeal allowed.

Judgement Key Points

Key Points

Marriage between parties solemnized on 05.01.2004 according to Hindu rituals after eight years of courtship; parties acquired Canadian citizenship for financial reasons and lived happily in Canada initially; male child born on 21.05.2010. [1000788570002][1000788570010]
Appellant faced health issues (back/shoulder pain, rag weed allergy) leading to job loss during recession; family returned to India on 29.01.2011; respondent left matrimonial home on 20.02.2011 to join parents, refused to cohabit despite requests, insisted on returning to Canada; parties resided together last till 19.02.2011 at appellant's mother's house in Mumbai. [1000788570002][1000788570010]
Family mediation attempts failed; respondent left for Canada with son; appellant's emails and requests for cohabitation ignored. [1000788570002]
Appellant filed petition under Section 9 Hindu Marriage Act for restitution of conjugal rights, uncontested by respondent despite service; later withdrawn. [1000788570003][1000788570011]
Appellant then filed divorce petition on grounds of cruelty and desertion; proceeded ex-parte as respondent unrepresented despite service; Family Court dismissed, holding no cruelty established. [1000788570003][1000788570004]
High Court affirmed Family Court dismissal in appeal, finding no case of cruelty or desertion. [1000788570002][1000788570005]
Parties living separately since February 2011 with no contact for nearly 13 years; respondent failed to appear despite service of summons in Section 9 proceedings, divorce trial, High Court, and Supreme Court; conduct shows unwillingness to continue marriage. [1000788570007][1000788570011][1000788570014]
Respondent demanded appellant separate from family and live separately, which he could not fulfill. [1000788570010]
Case qualifies as irretrievable breakdown of marriage: no possibility of cohabitation, emotionally dead; sufficient separation period (over 6 years relevant, here 13 years); respondent's non-response confirms no reconciliation prospects. [1000788570006][1000788570012][1000788570013][1000788570014]
Supreme Court exercised jurisdiction under Article 142(1) Constitution of India to grant divorce on irretrievable breakdown for complete justice, even without statutory ground; discretion exercised cautiously after evaluating separation duration, failed reconciliation attempts, non-cohabitation, respondent's conduct, etc. [1000788570012][1000788570013][1000788570015]
Marriage solemnized on 05.01.2004 dissolved by decree of divorce. [1000788570002][1000788570015]
A dead marriage must be given a decent quietus.

JUDGMENT :

PRASHANT KUMAR MISHRA, J.

1. Leave granted.

2. The instant appeal is directed against the judgment and order impugned dated 24.06.2021 passed by the High Court of Judicature at Bombay in Family Court Appeal No. 162 of 2019 whereby the High Court, while affirming the order of the Family Court, dismissed the appeal seeking dissolution of marriage by a decree of divorce.

3. The facts in brief are that the marriage between the appellant and respondent was solemnized on 05.01.2004 as per the rituals of Hindu religion after having spent eight years in courtship. They are Indian citizens by birth. However, they acquired citizenship of Canada for financial gain and were living a normal and happy matrimonial life in Canada. A male child was born from the wedlock on 21.05.2010. In the year 2011, the appellant started experiencing medical problems namely, constant back and shoulder pain as well as skin related problems, especially during summer due to rag weed allergy resulting into sleepless nights and miserable days. During the period of recession in Canada, the appellant lost his job and the couple along with the minor child returned to India on 29.01.2011. The respondent after wilfully staying at her matrimonial home, joined her parental house on 20.02.2011. After some time, when the appellant asked the respondent to resume cohabitation, the respondent did not pay any heed and refused to join the company of the appellant. The respondent was interested in returning to Canada for a better future. The appellant, however, expressed his unwillingness to shift to Canada owing to his health issues. Various attempts were made by the family of the parties to resolve the matrimonial discord between them but to no avail. The respondent left for Canada with her son. Thereafter, the appellant tried to contact the respondent either through e-mail or by other modes requesting her to come and cohabit with him. It was neither responded to nor complied with.

4. The appellant was, therefore, constrained to prefer a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights which remained uncontested on behalf of the respondent though the respondent was duly served. Desperately, the appellant withdrew the petition for restitution of conjugal rights. Since the appellant realized that there would be no hope of any restitution, he filed a divorce petition on the ground of cruelty and desertion.

5. The petition proceeded ex-parte as, despite due service, the respondent remained unrepresented. After considering the pleadings and evidence, the learned Family Court dismissed the petition of the appellant, inter-alia, observing that no case had been made from the alleged cruelty caused to the appellant by the respondent.

6. Being aggrieved with and dissatisfied by the dismissal of the petition by the learned Family Court, the appellant moved a Family Court Appeal before the High Court. The High Court dismissed the appeal by holding that no case has been made out by the appellant for seeking a decree of divorce on the ground of either cruelty or desertion. Hence, this appeal.

7. Considering the facts and circumstances, a short question arises for our consideration as to whether a decree for divorce can be granted for the reason that the marriage has irretrievably broken down.

8. Notice was issued to the sole respondent/wife on 21.01.2022, which was duly served upon the respondent. The respondent once again did not put in appearance either in-person or through an advocate.

9. We have heard Mr. Dhananjay Bhaskar Ray, learned counsel appearing for the appellant at length and have also perused the pleadings.

10. Mr. Dhananjay would submit that the respondent deserted the appellant about 13 years ago and she refused to cohabit with the appellant. Learned counsel would further submit that the appellant and the respondent have been living apart due to matrimonial discord for the last 13 years and as there are no prospects for reconciliation,

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