the divorce legislations in India are based on the ‘fault theory’, i.e., no party should take advantage of his/her own fault, and that the ground of irretrievable breakdown of marriage, as yet, has not been inserted in the divorce law, despite a debate on this aspect by the Law Commission in two reports. No doubt there is no consent of the respondent. But there is also, in real terms, no willingness of the parties, including of the respondent to live together. There are only bitter memories and angst against each other. This angst has got extended in the case of the respondent to somehow not permit the appellant to get a decree of divorce and “live his life”, forgetting that both parties would be able to live their lives in a better manner, separately, as both parties suffer from an obsession with legal proceedings, as reflected from the submissions before us. 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 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 endeavour to even bring those to an end. The respondent is a qualified lawyer; she claims to have not gone back to her family in Canada, but stayed in India only to battle this litigation. The respondent is being paid Rs.7,500 per month by the appellant. With a law degree she would be able to meet her needs better, though she claims that her sole concentration has been on the inter se 12 dispute. Be that as it may, we are of the view that the maintenance of Rs.7,500 per month should be continued to be paid by the appellant to the respondent, and it is open for the parties to move appropriate proceedings for either enhancement of this maintenance or reduction and cessation thereof. We only hope that this aspect can also be reconciled between the parties once a decree of divorce is granted.

Reportable
IN THE SUPREME COURT OF INDIA
CIVILAPPELLATE JURISDICTION
CIVIL APPEAL NO.9318 OF 2014
MUNISH KAKKAR … Appellant
VERSUS
NIDHI KAKKAR …Respondent
J U D G M E N T
SANJAY KISHAN KAUL, J.

  1. Marriages are said to be made in heaven. They are broken on
    earth. We are faced with a scenario where for the better part of almost
    two decades, the parties before us, who are husband and wife, have been
    engaged in multifarious litigation, including a divorce proceeding, which
    forms subject matter of the appeal before us.
  2. The marriage between the parties was solemnized at Jalandhar
    1
    according to Hindu rites on 23.4.2000, where apparently the family of the
    appellant was based. The family of the respondent is stated to have been
    based in Canada. It appears from the allegations that the constant period
    of stay of the parties was only for about two months, with the respondent
    moving back and forth, but, undisputedly on 24.5.2001, the respondent
    left for Canada to be with her family. It is the case of the appellant that
    this was not with his consent, while on the other hand it is the case of the
    respondent that she was making an endeavour for immigration of the
    appellant to Canada, and at his behest. The respondent did not return to
    India till 16.8.2002, which was soon after she obtained Canadian
    citizenship on 6.8.2002. It is also an admitted position that during this
    time, no papers were filed with the Canadian authorities for immigration
    of the appellant and that the respondent puts the blame on incomplete
    papers sent by the appellant. As to why the papers could not be
    completed over such a long period of time is a moot point. It does appear
    that the respondent was apparently interested in Canadian citizenship and
    only after having achieved that, came back to India.
  3. The parties resided for barely two and a half months together,
    when a fight is stated to have broken out between the parties and the
    2
    respondent again left the company of the appellant. There was an
    intervention by the Panchayat and the parties were asked to reside
    separately from their family, in a rented accommodation, but that too did
    not last for more than a couple of months. The respondent is stated to
    have left the common residence on 15.4.2003 after an altercation and
    then again left for Canada.
  4. The aforesaid resulted in the appellant filing a petition for divorce
    under Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the ground
    of cruelty, on 16.5.2003.
  5. It is the appellant’s case that he had reasonable apprehension about
    the safety of his life and limb, and that the respondent was really not
    interested in living with the appellant in India, away from Canada. The
    loneliness and lack of co-habitation is stated to have caused physical and
    mental torture. The appellant also sought to make out a case that the
    respondent was suffering from depression and was on medication.
    Despite the appellant’s stable job in India, the respondent kept on
    pressuring him to shift to Canada, and despite his reluctance he had
    3
    signed the immigration papers in order to save his marriage. However,
    the papers were never submitted. In fact, he came to know that the
    respondent herself had reached Canada on improper travel documents
    and, thus, could not apply for the appellant’s immigration. It is the
    further submission of the appellant that all stridhan was taken away by
    the respondent in April, 2001 itself. The appellant has alleged that the
    respondent was extremely suspicious and maligned his character in front
    of his colleagues on the basis of alleged liaisons with his colleagues.
  6. The respondent naturally had her own version and claimed to have
    travelled to Canada to meet his insistence of immigrating to Canada,
    though she admitted that she had not taken any documents of the
    appellant with her to Canada. She, in fact, blamed the appellant of
    abandoning her and made various other allegations including of dowry,
    physical assault and extra-marital affairs. In respect of her continued stay
    in Canada she claims to have had an “insect bite”! In her testimony, she
    claims that an unconsented abortion took place when she was taken to a
    doctor, though it is an admitted position that she never made a complaint
    in respect thereof. The version of the appellant is different, i.e., that she
    4
    was taken for general medical treatment, and was in fact never pregnant.
  7. The Additional District Judge, Nawanshahr vide judgment and
    order dated 9.12.2009, granted a decree of divorce against which an
    appeal was filed before the High Court. The learned Single Judge vide
    impugned order dated 10.2.2011, however, set aside the decree of
    divorce.
  8. We may note here that the trial court’s view was predicated on
    inter alia the continued character assassination by the respondent of the
    appellant, since she had neither been able to prove any extra-marital
    affair of the appellant, nor could she prove the factum of forcible
    termination of pregnancy.
  9. The learned Single Judge of the High Court, however, framed six
    primary grounds to examine the case for dissolution of marriage. It is the
    finding in the impugned order that while the parties did stay apart, no
    sense of anger could be made out to display any real discord between the
    parties herein; though there were adjustment issues. The learned Judge
    5
    took note of the allegations regarding extra-marital affairs made by one
    another, including the allegation of having a child out of the wedlock, but
    came to the conclusion that serious imputation could not be attached to
    the same. The same were attributed to “inflamed passions”, which
    resulted in these grave suggestions; but were opined to not knock down
    the fundamental walls of marriage. It was concluded that neither party
    had transgressed the limits in making imputations regarding each other’s
    extra-marital affairs and, thus, this would not constitute cruelty. The
    aspect of physical assault alleged by the parties was also said not to have
    been established.
  10. Insofar as the aspect of irretrievable breakdown of the marriage is
    concerned, it was opined that since that did not form part of statutory law
    in India, that could not be treated as a ground.
  11. It is relevant to note that at various times there were efforts made
    to mediate the dispute, which failed. Multiple efforts have been made
    even by this Court, but to no avail. In a last ditch effort, the parties were
    referred to a counselor after one of us, with the consent of the parties, had
    6
    taken the matter in chambers. The counselor/psychologist, however,
    opined that the separation of sixteen (16) years since 2003 had made both
    the parties bitter and cynical about the relationship and there was no sign
    of any affection or bonding on either side. The parties apparently had no
    history of pleasant time and only feelings of resentment arising from the
    several court cases. There was also no family support from either side.
    This would also be apparent, in our view, from the fact that there are
    stated to be multiple cases filed by both set of family members against
    the opposite party.
  12. We had, thus, no option but to hear the parties at some length.
    Despite our query of whether the respondent would like to be assisted by
    a counsel, she refused the same and wanted to address the Court
    personally, having acquired a law degree herself.
  13. We have given our deep thought to the matter and to the
    discussions in the trial court judgment and the High Court judgment.
    Learned single Judge appears to have brushed aside the allegations of
    extra marital affairs as also of a child out of the wedlock as part of the
    7
    wear and tear of marriage and as “inflamed passions.” The fact, however,
    remains that the relationship appears to have deteriorated to such an
    extent that both parties see little good in each other, an aspect supported
    by the counselor’s report; though the respondent insists that she wants to
    stay with the appellant. In our view, this insistence is only to somehow
    not let a decree of divorce be passed against the respondent. This is only
    to frustrate the endeavour of the appellant to get a decree of divorce,
    completely losing sight of the fact that matrimonial relationships require
    adjustments from both sides, and a willingness to stay together. The
    mere say of such willingness would not suffice.
  14. It is no doubt true that the divorce legislations in India are based on
    the ‘fault theory’, i.e., no party should take advantage of his/her own
    fault, and that the ground of irretrievable breakdown of marriage, as yet,
    has not been inserted in the divorce law, despite a debate on this aspect
    by the Law Commission in two reports.
  15. We, however, find that there are various judicial pronouncements
    where this Court, in exercise of its powers under Article 142 of the
    8
    Constitution of India, has granted divorce on the ground of irretrievable
    breakdown of marriage; not only in cases where parties ultimately, before
    this Court, have agreed to do so but even otherwise. There is, thus,
    recognition of the futility of a completely failed marriage being continued
    only on paper.
  16. We have noticed above that all endeavours have been made to
    persuade the parties to live together, which have not succeeded. For that,
    it would not be appropriate to blame one or the other party, but the fact is
    that nothing remains in this marriage. The counselor’s report also opines
    so. The marriage is a dead letter.
  17. Much could be said about what the learned single Judge has
    observed as wear and tear of marriage and “inflamed passions”, but
    wisdom requires us to not traverse that same path, as we feel that, on the
    ground of irretrievable breakdown of marriage, if this is not a fit case to
    grant divorce, what would be a fit case!
  18. No doubt there is no consent of the respondent. But there is also,
    9
    in real terms, no willingness of the parties, including of the respondent to
    live together. There are only bitter memories and angst against each
    other. This angst has got extended in the case of the respondent to
    somehow not permit the appellant to get a decree of divorce and “live his
    life”, forgetting that both parties would be able to live their lives in a
    better manner, separately, as both parties suffer from an obsession with
    legal proceedings, as reflected from the submissions before us.
  19. We may note that in a recent judgment of this Court, in R. Srinivas
    Kumar v. R. Shametha,1
    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 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 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 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 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 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 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
    11
    parties, i.e., where at times law or statute may not provide a remedy, the
    Court can extend itself to put a quietus to 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 decades battling
    each other, and there can always be hope, even at this age, for a better
    life, if not together, separately.
  23. We, thus, 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.
  24. The respondent is a qualified lawyer; she claims to have not gone
    back to her family in Canada, but stayed in India only to battle this
    litigation. The respondent is being paid Rs.7,500 per month by the
    appellant. With a law degree she would be able to meet her needs better,
    though she claims that her sole concentration has been on the inter se
    12
    dispute. Be that as it may, we are of the view that the maintenance of
    Rs.7,500 per month should be continued to be paid by the appellant to the
    respondent, and it is open for the parties to move appropriate proceedings
    for either enhancement of this maintenance or reduction and cessation
    thereof. We only hope that this aspect can also be reconciled between the
    parties once a decree of divorce is granted.
  25. The appeal is allowed leaving the parties to bear their own costs.
    ………………………………J.
    [Sanjay Kishan Kaul]
    ………………………………J.
    [K.M. Joseph]
    New Delhi.
    December 17, 2019.
    13