Supreme Court of India
Munish Kakkar vs Nidhi Kakkar on 17 December, 2019
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul, K.M. Joseph
Reportable IN THE SUPREME COURT OF INDIA CIVILAPPELLATE JURISDICTION CIVIL APPEAL NO.9318 OF 2014 MUNISH KAKKAR … Appellant VERSUS NIDHI KAKKAR …Respondent JUDGMENT
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
Signature Not Verified forms subject matter of the appeal before us.
Digitally signed by
2. The marriage between the parties was solemnized at Jalandhar
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
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
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
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
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
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
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
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
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
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,
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,1to 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
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
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
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.
[Sanjay Kishan Kaul]
December 17, 2019.