Supreme Court of India
Sivasankaran vs Santhimeenal on 13 September, 2021Author: Sanjay Kishan Kaul

Bench: Sanjay Kishan Kaul, M.M. Sundresh




CIVIL APPEAL NOS. 4984-4985 OF 2021
[Arising out of SLP(C) Nos. 17505-17506/2019]






1. The appellant-husband and the respondent-wife resolved to tie the

marital knot by solemnising their marriage as per the Hindu rites and

customs on 7.2.2002. It appears there was a crash landing at the take-of

stage itself! The appellant claims that the respondent’s view was that she

had been coerced into marrying the appellant without giving her consent,

and left the marriage hall late at night and went to Pudukkottai. An

endeavour by the relatives of the appellant to persuade her on the very next

day to live with the appellant was not fruitful. The marriage was never
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Digitally signed by
Date: 2021.09.13
17:13:37 IST
consummated. As the marriage did not work out since its inception, the

appellant issued a notice dated 25.02.2002 seeking divorce on the ground of

cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 (hereinafter

referred to as ‘the Act’). Surprisingly, the respondent filed a petition for

restitution of conjugal rights soon thereafter. Respondent’s case was that

the appellant and his family demanded dowry and, on being unable to oblige,

the appellant’s brothers took him away from the Respondent’s company,

rendering consummation of the marriage impossible. She claims that it was

the appellant who refused to cohabit with her. In these circumstances,

appellant filed HMOP 24/2003 on 05.03.2003 under Section 13(1)(i-a) of the

Act, which was later re-numbered as HMOP 10/2005. Post-trial, a decree of

divorce was granted after almost 5 years on 17.3.2008 on the ground of

irretrievable breakdown of marriage. The appellant did not waste much time

and got married a second time on 23.3.2008 after 6 days. The respondent

preferred an appeal before the Addl. District Judge, Pudukkottai. It is her

case that she filed an appeal on 1.7.2008, within the period of limitation after

obtaining all the requisite papers; but the appeal was renumbered as CMA

No.5 and 7 of 2011. The appellate court set aside the decree of divorce

while allowing the petition for restitution of conjugal rights. The third round

took place before the High Court in second appeal and, in terms of judgment

dated 14.9.2018, the decree of divorce granted by the trial court was

restored. Thus, each stage of scrutiny took 5 years, and 15 years passed in

the litigation. In this period, the battle between the parties continued. This

inter alia posed a question mark on the status of the second marriage of the

appellant. The matter, however, did not end at this. The respondent filed a

review petition inter alia on the ground that it was not within the jurisdiction

of the High Court or the trial court to grant a decree of divorce on the ground

of irretrievable breakdown of marriage. The High Court noticed some

aspects of alleged cruelty and dissolved the marriage by passing a decree of

divorce on the ground of irretrievable breakdown of marriage. Thus, the

review petition was allowed by the impugned order dated 25.2.2019, which

has been assailed in the present appeal.

2. The endeavour to find a solution through mediation or any acceptable

solution between the parties did not succeed. According to the learned

counsel for the parties, the respondent was not willing to concede the decree

of divorce on any terms even though both the parties are educated and

living their separate lives now for almost two decades. In fact, learned

counsel for the respondent even stated that she was not disturbed by nor

wanted to afect the status of the second marriage; but was unwilling to

concede to a scenario where her marriage with the appellant came to an end

even though in view of the financial status of the parties no maintenance

was being claimed. In these circumstances, we are called upon to take a

view of the matter in the given factual scenario and the subsequent

developments, which are material, during the pendency of the proceedings

at various stages of the judicial process.

3. We have examined the rival contentions of the parties and we have

little doubt that this is one marriage which has not worked and cannot work.

This is not only on account of the fact that the appellant has married a

second time but also because the parties are so troubled by each other that

they are not willing to even think of living together. This, despite the fact

that the respondent keeps on claiming that she is and was always willing to

live with him.

4. Insofar as irretrievable breakdown of marriage is concerned, no doubt,

it does not exist as a ground of divorce under the Act. The issue has been

debated by the Law Commission in its various reports. Breakdown of

marriage was incidentally considered by the Law Commission in its 59 th

report (1974), but the Commission made no specific recommendations in this

regard. Thereafter in its 71st report (1978), the Law Commission departed

from the fault theory of divorce to recognise situations where a marriage has

completely broken down and there is no possibility of reconciliation. Neither

party need individually be at fault for such a breakdown of the marriage – it

may be the result of prolonged separation, clash of personalities, or

incompatibility of the couple. As the Law Commission pithily noted, such

marriages are ‘merely a shell out of which the substance is gone’. For such

situations, the Commission recommended that the law be amended to

provide for ‘irretrievable breakdown of marriage’ as an additional ground of

divorce. This recommendation was reiterated by the Law Commission in its

217th Report in 2010, after undertaking a suo moto study of the legal issues

involved. So far, the Law Commission’s recommendations have not been

implemented. In 2010, the government introduced the Marriage Laws

(Amendment) Bill, 2010, which inter alia proposed to add irretrievable

breakdown of marriage as a new ground for divorce in both the Hindu

Marriage Act, 1955 and the Special Marriage Act, 1954. After receiving

suggestions from relevant stakeholders, the bill was amended and re-

introduced as the Marriage Laws (Amendment) Bill, 2013. This bill was never


5. The result is that, in appropriate cases, this court has granted decrees

of divorce exercising its unique jurisdiction under Article 142 of the

Constitution of India, 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 where, 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.

6. 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 of India.

7. A marriage is more than a seemingly simple union between two

individuals. As a social institution, all marriages have legal, economic,

cultural, and religious ramifications. The norms of a marriage and the varying

degrees of legitimacy it may acquire are dictated by factors such as marriage

and divorce laws, prevailing social norms, and religious dictates. Functionally,

marriages are seen as a site for the propagation of social and cultural capital

as they help in identifying kinship ties, regulating sexual behaviour, and

consolidating property and social prestige. Families are arranged on the idea

of a mutual expectation of support and amity which is meant to be

experienced and acknowledged amongst its members. Once this amity

breaks apart, the results can be highly devastating and stigmatizing. The

primary efects of such breakdown are felt especially by women, who may

find it hard to guarantee the same degree of social adjustment and support

that they enjoyed while they were married.

8. We may notice that the aforesaid exercise has produced diferent

judicial thought processes which have resulted in a reference to a

Constitution Bench of this Court in T.P.(C) No.1118/2014. 1 The reference is 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 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.

9. In fact, this has been the bedrock of the submissions of the learned

counsel for the respondent who has strongly opposed any endeavour by this

court to exercise jurisdiction under Article 142 of the Constitution to give a

decree of divorce on account of irretrievable breakdown of marriage in the

absence of consent of the parties. However, we must note that the remit of

the questions referred in TP (C) No. 1118/2014 is rather specific. 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.

The present case involves a divorce petition filed under S. 13(1)(i-a) of the
1 Shilpa Sailesh v. Varun Sreenivasan; order dated 29.06.2016.
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, as discussed

later in this judgment. The case at hand is therefore, in our opinion, not

covered by the questions referred to the Constitution Bench in T.P. (C) No.


10. We may further note that 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.

11. We may initially refer to two judicial pronouncements in R. Srinivas

Kumar v. R. Shametha2 and Munish Kakkar v. Nidhi Kakkar3 where it has been

clearly opined that there is no necessity of consent by both the parties for

exercise of powers under Article 142 of the Constitution of India to dissolve

the marriage on the ground of irretrievable breakdown of marriage.

12. In R. Srinivas Kumar,4 the parties had been living apart for 22 years

and all endeavours to save the marriage had failed. We may note that in

Hitesh Bhatnagar v. Deepa Bhatnagar5, it was opined by this Court that

courts can dissolve a marriage as irretrievably broken down only when it is

impossible to save the marriage, all eforts have been made in that regard,

the Court is convinced beyond any doubt that there is actually no chance of

2 (2019) 9 SCC 409.
3 (2020) 14 SCC 657.
4 Supra
5 (2011) 5 SCC 234.
the marriage surviving, and it is broken beyond repair. It could be useful to

reproduce the observations made in para 5.2 to para 8 as under:

“5.2. In Naveen Kohli [Naveen Kohli v. Neelu Kohli,
(2006) 4 SCC 558] , a three-Judge Bench of this Court
has observed as under :
“74. … once the marriage has broken down
beyond repair, it would be unrealistic for the law not
to take notice of that fact, and it would be harmful to
society and injurious to the interests of the parties.
Where there has been a long period of continuous
separation, it may fairly be surmised that the
matrimonial bond is beyond repair. The marriage
becomes a fiction, though supported by a legal tie.
By refusing to sever that tie the law in such cases
does not serve the sanctity of marriage; on the
contrary, it shows scant regard for the feelings and
emotions of the parties.
85. Undoubtedly, it is the obligation of the court
and all concerned that the marriage status should, as
far as possible, as long as possible and whenever
possible, be maintained, but when the marriage is
totally dead, in that event, nothing is gained by
trying to keep the parties tied forever to a marriage
which in fact has ceased to exist. …
86. In view of the fact that the parties have been
living separately for more than 10 years and a very
large number of aforementioned criminal and civil
proceedings have been initiated by the respondent
against the appellant and some proceedings have
been initiated by the appellant against the
respondent, the matrimonial bond between the
parties is beyond repair. A marriage between the
parties is only in name. The marriage has been
wrecked beyond the hope of salvage, public interest
and interest of all concerned lies in the recognition of
the fact and to declare defunct de jure what is
already defunct de facto.”
(emphasis supplied)
A similar view has been expressed in Samar
Ghosh [Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511].

6. In the similar set of facts and circumstances of the
case, this Court in Sukhendu Das [Sukhendu Das v. Rita
Mukherjee, (2017) 9 SCC 632 : (2017) 4 SCC (Civ) 714]
has directed to dissolve the marriage on the ground of
irretrievable breakdown of marriage, in exercise of
powers under Article 142 of the Constitution of India.

7. Now so far as submission on behalf of the
respondent wife that unless there is a consent by both
the parties, even in exercise of powers under Article 142
of the Constitution of India the marriage cannot be
dissolved on the ground of irretrievable breakdown of
marriage is concerned, the aforesaid has no substance.
If both the parties to the marriage agree for separation
permanently and/or consent for divorce, in that case,
certainly both the parties can move the competent
court for a decree of divorce by mutual consent. Only in
a case where one of the parties do not agree and give
consent, only then the powers under Article 142 of the
Constitution of India are required to be invoked to do
substantial justice between the parties, considering the
facts and circumstances of the case. However, at the
same time, the interest of the wife is also required to be
protected financially so that she may not have to sufer
financially in future and she may not have to depend
upon others.

8. This Court, in a series of judgments, has exercised
its inherent powers under Article 142 of the Constitution
of India for dissolution of a marriage where the Court
finds that the marriage is totally unworkable,
emotionally dead, beyond salvage and has broken down
irretrievably, even if the facts of the case do not provide
a ground in law on which the divorce could be granted.
In the present case, admittedly, the appellant husband
and the respondent wife have been living separately for
more than 22 years and it will not be possible for the
parties to live together. Therefore, we are of the opinion
that while protecting the interest of the respondent wife
to compensate her by way of lump sum permanent
alimony, this is a fit case to exercise the powers under
Article 142 of the Constitution of India and to dissolve
the marriage between the parties.”

13. In Munish Kakkar case6, the following observations were made:

“19. We may note that in a recent judgment of this
Court, in R. Srinivas Kumar v. R. Shametha, 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

6 supra
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. 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.”

The aforesaid are two illustrative cases but there are many more spread over

diferent periods of time.7

14. We are conscious that the Constitution Bench is examining the larger

issue but that reference has been pending for the last five years. Living

together is not a compulsory exercise. But marriage is a tie between two

parties. If this tie is not working under any circumstances, we see no

purpose in postponing the inevitability of the situation merely because of the

pendency of the reference.

7 Sukhendu Das v. Rita Mukherjee (2017) 9 SCC 632; Parveen Mehta v. Inderjit Mehta (2002)
5 SCC 706.
15. However, the aforesaid is not the only issue under which the given

facts of a case can be examined. No doubt, the courts below did not find

adequate material to come to the conclusion that the appellant was entitled

to divorce on grounds of cruelty. However, there are many subsequent

circumstances which have arisen in the present case which necessitated the

examination of this aspect. The question, thus, is whether the respondent’s

conduct after the initial trigger for divorce amounts to mental cruelty. On the

basis of material on record, we endeavour to deal with this aspect and, in

that behalf, we notice the following:

(a) The respondent has resorted to filing multiple cases in courts against

the appellant. It may be noticed that such repeated filing of cases itself has

been held in judicial pronouncements to amount to mental cruelty.8

(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. She sought the service records

pertaining to the appellant, apart from other documents such as the identity

card issued to the appellant under the Star Health Insurance Scheme and

8 K. Srinivas Rao v. DA Deepa (2013) 5 SCC 226; Naveen Kohli v. Neelu Kohli (2006) 4 SCC
558; Vishwanath Agrawal v. Sarla Vishwanath Agrawal (2012) SCCOnline SC 489.
prior permission obtained by the appellant for purchasing a piece of property

owned by the Tamil Nadu Housing Board etc.

(d) The respondent thereafter filed Writ Petition No. 9516/2014. Even the

information already furnished to her was again sought for. 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). She sought disciplinary proceedings

against the appellant on account of the second marriage despite the fact

that the second marriage took place soon after the decree of divorce. 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.9

16. 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

9 K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
array and accuse even the persons who had attended the second marriage.

The High Court quashed the criminal proceedings in terms of order dated


17. 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 of 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.

18. We are, thus, faced with a marriage which never took of 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 eforts have failed.

19. In view of the legal position which we have referred to aforesaid, these

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, as was found

by the Trial Court. This conduct shows disintegration of marital unity and

thus disintegration of the marriage.10 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. 11 The marriage having not

taken of from its inception and 5 years having been spent in the Trial Court,

it is difficult to accept that the marriage soon after the decree of divorce,

within 6 days, albeit 6 years after the initial inception of marriage, amounts

to conduct which can be held against the appellant.

20. In the conspectus of all the aforesaid facts, this is one case where 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.

21. We are, thus, of the view that a decree of divorce dissolving the

marriage between the parties be passed not only in exercise of powers under

Article 142 of the Constitution of India on account of irretrievable breakdown

of marriage, but also on account of cruelty under Section 13(1)(i-a) of the Act

10 A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22
11 Malathi Ravi v. B.V. Ravi, (2014) 7 SCC 640
in light of the subsequent conduct of the respondent during the pendency of

judicial proceedings at various stages.

22. The decree of divorce is, accordingly, passed. Marriage stands


23. The appeals are allowed in the aforesaid terms leaving the parties to

bear their own costs.



September 13, 2021



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