Sivasankaran vs Santhimeenal

In appropriate cases, this Court has granted decrees of divorce exercising its unique jurisdiction under Article 142 of 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 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 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, 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 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 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. [Para 6][177-G-H; 178-A-B]

2.1. Pendency of reference before Constitution Bench: 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 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 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 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, 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-BD]

2.3. Marriage is a tie between two parties. If this tie is 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 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.

(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.

(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. 9516/2014. 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.

(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 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 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 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 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 point is that the marriage has not taken off 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. [Para 17][185B-C]

4.1. On facts, the marriage never took off from 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 efforts have failed. [Para 18][185-D-E]

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 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 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 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]

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 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 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.