The Supreme Court on Monday dissolved an almost 20-year-old marriage which was never consummated, observing that the couple never lived together even for a day.
The appellant-husband and the respondent-wife were married as per Hindu rites and customs on February 7, 2002. The appellant claims the respondent believed she had been coerced into marrying him without 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 consummated. As the marriage did not work out since its inception, the appellant issued a notice dated February 25, 2002 seeking divorce on the ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.
The respondent filed a petition for restitution of conjugal rights soon thereafter. The 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.
Divorce decree in 2008
She claims that it was the appellant who refused to cohabit with her. In these circumstances, appellant filed under Section 13(1)(i-a) of the Act. Post-trial, a decree of divorce was granted after almost 5 years on March 17, 2008 on the ground of irretrievable breakdown of marriage. The appellant did not waste much time and got married a second time on March 23, 2008 within 6 days of the divorce decree. The respondent preferred an appeal before the Additional District Judge, Pudukkottai.
It is her case that she filed an appeal on July 1, 2008, within the period of limitation after obtaining all the requisite papers. 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.
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 Supreme Court.
According to the 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. Counsel for the respondent even stated that she was not disturbed by nor wanted to affect 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.
We have little doubt that this is one marriage that has not worked and cannot work: Supreme Court bench
The bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy after examining the rival contention of the parties said that we have little doubt that this is one marriage that 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.
The 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.
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 effects 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, observed the Court.
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The top court said under Hindu law, marriage is sacramental in character and is supposed to be an eternal union of two people and the society at large does not accept divorce, given the heightened importance of marriage as a social institution in India.
The Court noted that living together is not a compulsory exercise. But marriage is a tie between two parties. If this tie is not working under any circumstances, the Bench sees no purpose in postponing the inevitability of the situation merely because of the pendency of the reference.
However, there are many subsequent circumstances which have arisen in the case which necessitated the examination that the appellant was entitled to divorce on grounds of cruelty. The Bench noted that :-
(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.
(b) The respondent filed petition praying for a writ of mandamus to initiate disciplinary action against the appellant, who was working as an Assistant Professor. This writ petition was dismissed on 6.6.2019.
(c) The respondent sought some information from the College via 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 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 Petition in the High Court . 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,” said the Court.
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.
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, the Court held.
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. 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.
“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,” the order reads.
Read order below:
9815_2019_35_1501_29956_Judgement_13-Sep-2021