2024 INSC 55 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO (s)._______ OF 202 4

(Arising out of SLP(C) No. 21139/2021)

PRAKASHCHANDRA JOSHI …. APPELLANT

VERSUS

KUNTAL PRAKASHCHANDRA JOSHI

@ KUNTAL VISANJI SHAH ... RESPONDENT

J U D G M E N T

PRASHANT KUMAR MISHRA, J.

Leave granted.

2. The instant appeal is directed against the judgment and

order impugned dated 24.06.2021 passed by the High Court of

Judicature at Bombay in Family Court Appeal No. 162 of 2019

whereby the High Court, while affirming the order of the Family

Court, dismissed the appeal seeking dissolution of marriage by

a decree of divorce.

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3. The facts in brief are that the marriage between the

appellant and respondent was solemnized on 05.01.2004 as

per the rituals of Hindu religion after having spent eight years

in courtship. They are Indian citizens by birth. However, they

acquired citizenship of Canada for financial gain and were living

a normal and happy matrimonial life in Canada. A male child

was born from the wedlock on 21.05.2010. In the year 2011,

the appellant started experiencing medical problems namely,

constant back and shoulder pain as well as skin related

problems, especially during summer due to rag wee d allergy

resulting into sleepless nights and miserable days. During the

period of recession in Canada, the appellant lost his job and the

couple along with the minor child returned to India on

29.01.2011. The respondent after wilfully staying at her

matrimonial home, joined her parental house on 20.02.2011.

After some time, when the appellant asked the respondent to

resume cohabitation, the respondent did not pay any heed and

refused to join the company of the appellant. The respondent

was interested in returning to Canada for a better future. The

appellant, however, expressed his unwillingness to shift to

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Canada owing to his health issues. Various attempts were

made by the family of the parties to resolve the matrimonial

discord between them but to no avail. The respondent left for

Canada with her son. Thereafter, the appellant tried to contact

the respondent either through e -mail or by other modes

requesting her to come and cohabit with him. It was neither

responded to nor complied with.

4. The appellant was, therefore, constrained to prefer a

petition under Section 9 of the Hindu Marriage Act for

restitution of conjugal rights which remained uncontested on

behalf of the respondent though the respondent was duly

served. Desperately, the appellant withdrew the petition for

restitution of conjugal rights. Since the appellant realized that

there would be no hope of any restitution, he filed a divorce

petition on the ground of cruelty and desertion.

5. The petition proceeded ex parte as, despite due service,

the respondent remained unrepresented. After considering the

pleadings and evidence, the learned Family Court dismissed the

petition of the appellant, inter alia, observing that no case had

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been made from the alleged cruelty caused to the appellant by

the respondent.

6. Being aggrieved with and dissatisfied by the dismissal of

the petition by the learned Family Court, the appellant moved a

Family Court Appeal before the High Court. The High Court

dismissed the appeal by holding that no case has been made

out by the appellant for seeking a decree of divorce on the

ground of either cruelty or desertion. Hence, this appeal.

7. Considering the facts and circumstances, a short question

arises for our consideration as to whether a decree for divorce

can be granted for the reason that the marriage has

irretrievably broken down.

8. Notice was issued to the sole respondent/wife on

21.01.2022, which was duly served upon the respondent. The

respondent once again did not put in appearance either in-

person or through an advocate.

9. We have heard Mr. Dhananjay Bhaskar Ray, learned

counsel appearing for the appellant at length and have also

perused the pleadings.

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10. Mr. Dhananjay would submit that the respondent deserted

the appellant about 13 years ago and she refused to cohabit

with the appellant. Learned counsel would further submit that

the appellant and the respondent have been living apart due to

matrimonial discord for the last 13 years and as there are no

prospects for reconciliation, the marriage has been irretrievably

broken down. The learned counsel would argue that the

uncontroverted evidence substantially establishes the fact that

the appellant had been treated with mental cruelty by his wife

who had left his company despite an objection from the

appellant. The learned counsel further submitted that the

conduct of the respondent itself indicates that she is not willing

to live with the appellant. Learned counsel for the appellant, in

support of the contentions, placed reliance on the decisions of

this Court in the case of “ Sukhendu Das Vs. Rita

Mukherjee

1

” and “Samar Ghosh vs. Jaya Ghosh

2

”.

11. The record reveals that after appellant’s car accident in

November, 2009 the couple was blessed with a baby boy on

1

(2017) 9 SCC 632

2

(2007) 4 SCC 511

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21.05.2010. The appellant lost his job owing to the deep

recession in Canada and eventually the family came back to

India in January, 2011. The couple last resided together in

appellant’s mother’s house at Mumbai till 19.02.2011. After

this date, they lost contact with each other, and the respondent

refused to return to the matrimonial home. On being

contacted, the respondent refused to resume matrimonial life

unless the appellant separates from his family and resides in a

separate household. On account of appellant's inability to

accede to this demand of the respondent, she never returned

to resume the matrimonial life.

12. It is also to be seen that in the proceedings initiated by

the appellant for restitution of conjugal rights under Section 9

of the Hindu Marriage Act, the respondent did not appear

despite receiving the summons. Similarly, in the present

divorce proceedings also the respondent failed to enter

appearance despite service of notice in the Trial Court, High

Court and Supreme Court as well. Thus, it is apparent that the

respondent does not wish to continue the marital chord and is

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not responding to court summons much less the request made

by the appellant.

13. On the basis of the above factual matrix the present

appears to be a case of irretrievable breakdown of marriage. In

the matter of ”Shilpa Sailesh vs. Varubn Sreenivasan

3

”,

this Court has held that exercise of jurisdiction under Article

142 (1) of the Constitution of India is clearly permissible to do

‘complete justice’ to a ‘cause or matter’ and this Court can pass

an order or decree which a family court, trial court or High

Court can pass and when such power is exercised, the question

or issue of lack of subject-matter jurisdiction does not arise.

14. On the issue as to grant of divorce on the ground of

irretrievable breakdown of marriage in exercise of jurisdiction

under Article 142 (1) of the Constitution of India, this Court in

Shilpa Sailesh (supra) held thus in paras 33 and 42 (iii):

“33. Having said so, we wish to clearly state that

grant of divorce on the ground of irretrievable

breakdown of marriage by this Court is not a

matter of right, but a discretion which is to be

exercised with great care and caution, keeping in

mind several factors ensuring that ‘complete

3

(2023) SCC online SC 544

8

justice’ is done to both parties. It is obvious that

this Court should be fully convinced and satisfied

that the marriage is totally unworkable,

emotionally dead and beyond salvation and,

therefore, dissolution of marriage is the right

solution and the only way forward. That the

marriage has irretrievably broken down is to be

factually determined and firmly established. For

this, several factors are to be considered such as

the period of time the parties had cohabited after

marriage; when the parties had last cohabited;

the nature of allegations made by the parties

against each other and their family members; the

orders passed in the legal proceedings from time

to time, cumulative impact on the personal

relationship; whether, and how many attempts

were made to settle the disputes by intervention

of the court or through mediation, and when the

last attempt was made, etc. The period of

separation should be sufficiently long, and

anything above six years or more will be a

relevant factor. But these facts have to be

evaluated keeping in view the economic and

social status of the parties, including their

educational qualifications, whether the parties

have any children, their age, educational

qualification, and whether the other spouse and

children are dependent, in which event how and

in what manner the party seeking divorce intends

to take care and provide for the spouse or the

children. Question of custody and welfare of

minor children, provision for fair and adequate

alimony for the wife, and economic rights of the

children and other pending matters, if any, are

relevant considerations. We would not like to

codify the factors so as to curtail exercise of

jurisdiction under Article 142(1) of the

Constitution of India, which is situation specific.

Some of the factors mentioned can be taken as

illustrative, and worthy of consideration.

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42 (iii) Whether this Court can grant divorce in

exercise of power under Article 142(1) of the

Constitution of India when there is complete and

irretrievable breakdown of marriage in spite of

the other spouses opposing the prayer?

This question is also answered in the affirmative,

inter alia, holding that this Court, in exercise of

power under Article 142(1) of the Constitution of

India, has the discretion to dissolve the marriage

on the ground of its irretrievable breakdown. This

discretionary power is to be exercised to do

‘complete justice’ to the parties, wherein this

Court is satisfied that the facts established show

that the marriage has completely failed and there

is no possibility that the parties will cohabit

together, and continuation of the formal legal

relationship is unjustified. The Court, as a court

of equity, is required to also balance the

circumstances and the background in which the

party opposing the dissolution is placed.”

15. Reverting back to the case in hand, to accord satisfaction

as to whether the present is a fit case for exercise of power

under Article 142 (1) of the Constitution of India to dissolve the

marriage on the ground of irretrievable breakdown, we see that

the parties are residing separately since February, 2011 and

there have been no contact whatsoever between them during

this long period of almost 13 years. The respondent-wife is not

even responding to the summons issued by the courts. It

seems she is no longer interested in continuing the marital

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relations with the appellant. Therefore, we have no hesitation

in holding that the present is a case of irretrievable breakdown

of marriage as there is no possibility of the couple staying

together.

16. For the foregoing reasons, the appeal is allowed and we

dissolve the marriage between the parties on the ground of

irretrievable breakdown in exercise of powers under Article

142(1) of the Constitution of India. Accordingly, the marriage

between the parties solemnized on 05.01.2004 is dissolved by

a decree of divorce. A decree to this effect be drawn

accordingly.

………………………………………J.

(B.R. GAVAI)

………………………………………J.

(PRASHANT KUMAR MISHRA)

JANUARY 24, 2024

NEW DELHI.