Ravi Kumar Saini Case: Supreme Court Judgment on Family and Matrimonial Disputes

family law, matrimonial law

28 Aug, 2025
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Ravi Kumar Saini Vs. Sunita Saini

Punjab & Haryana High Court FAO-1538 of 2020

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Case Background

As per case facts, the Appellant-husband and Respondent-wife married in 1986, but cohabited for only six months without children. The wife left in 1987, experienced a miscarriage, and later filed ...

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FAO-1538 of 2020 :1:

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

FAO-1538 of 2020(O&M)

Reserved on: 08.08.2025

Pronounced on: 28.08.2025

RAVI KUMAR SAINI

...Appellant

VERSUS

SUNITA SAINI

....Respondent

CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL

HON'BLE MR. JUSTICE DEEPINDER SINGH NALWA

Present: Mr. Aman Arora, Advocate

for the appellant.

Mr. Kanwaljit Singh, Senior Advocate with

Mr. Veer Imaan Singh Gill, Advocate

for the respondent.

*****

DEEPINDER SINGH NALWA , J.

1. Challenge in the present appeal is to the judgment and decree

dated 15.01.2020 (HMA No. 1212 of 2016), passed by the learned Principal

Judge, Family Court, Amritsar, whereby the petition under Section 13 of the

Hindu Marriage Act, 1955 (for short 'the Act') filed by the appellant-husband,

was dismissed.

2. The aforesaid petition had been filed by the appellant-husband,

inter alia, pleading therein that his marriage with the respondent-wife was

solemnized on 30.11.1986, according to Sikh rites. After the marriage, the

parties cohabited together as husband and wife, but no child was born from the

lawful wedlock of parties.

3. It was pleaded that both the parties had lived together for a period

of six months and during this period, their relationship was extremely strained

FAO-1538 of 2020 :2:

on account of the wrongful acts and conduct so performed by the respondent-

wife. Earlier, the appellant-husband filed a divorce petition on 23.01.1996

under Section 13 of Hindu Marriage Act (Petition No. 51 of 1996), which was

declined by the learned District Judge, Amritsar, vide judgment dated

26.10.1999 and the first appeal (FAO No. 12-M of 2000) against the said

judgment was also dismissed by this Court.

4. It was further pleaded by the appellant-husband that since the

entrance of respondent-wife to her matrimonial house, her behavior and

conduct towards him was quite strange and usually behaved in a very rude and

arrogant manner with appellant-husband and his old aged parents.

5. It was further asserted that in May, 1987, after raising unnecessary

quarrels, respondent-wife left the society of the appellant-husband and went to

her parental house. At that time, she conceived a child from the loins of

appellant-husband. The appellant-husband had been visiting parental house of

the respondent-wife and asked her to accompany him but all went in vain. In

November, 1987, appellant-husband received a message that respondent-wife

was admitted in maternity ward of the hospital upon which appellant-husband

alongwith Dr. Ashok Uppal and his wife had gone there and appellant-husband

tried his level best to make her understand to come back to her matrimonial

house but she refused to same. Unfortunately, pregnancy of the respondent-wife

was terminated. In April, 1989, brother of the respondent-wife met with an

accident and after getting the information, appellant-husband visited hospital

and even donated blood to the respondent-wife's brother but he unfortunately

died. In the month of July/August, 1989, the appellant-husband had 5/6

meetings with the respondent-wife and again requested her to resume

FAO-1538 of 2020 :3:

cohabitation, but all went in vain. Ultimately, a petition under Section 9 of

Hindu Marriage Act was filed by the appellant-husband but after some time, on

assurance given by the respondent-wife, the appellant-husband withdrew his

petition in the year 1992 and in the month of September, 1993 respondent-wife

returned back to her matrimonial house but she continued with similar

unchanged behavior towards the appellant-husband and his parents. In addition

to this, the respondent-wife refused to perform her marital obligations towards

the appellant-husband and also refused to develop physical relations with the

appellant-husband. Respondent-wife also maltreated old parents of the

appellant-husband.

6. It was also the case of the appellant-husband that the respondent-

wife told him that she wants to celebrate Lohri festival in her parental house

and left her matrimonial house on 14.01.1994, thereafter respondent-wife came

back to the house of the appellant-husband and took away all her belongings

and went back to her parental house. Ultimately, on 21.01.1994, the respodent-

wife told appellant-husband that she had clear intentions to break up her

matrimonial relationship with the appellant-husband and refused to come back.

7. As such, the appellant-husband was constrained to file a divorce

petition against the respondent-wife in month of January, 1996 which was

dismissed by the Family Court. Aggrieved by the aforesaid judgment and

decree passed by the Family Court, the appellant-husband preferred first appeal

before this Court, which was also dismissed.

8 It was further pleaded that in the year 2005, the respondent-wife

filed a petition under Section 18 of Hindu Adoption and Maintenance Act

against the appellant-husband by levelling wrong and frivolous allegations with

FAO-1538 of 2020 :4:

the sole motive to harass and humiliate the appellant-husband. The said petition

was decided by the learned Civil Judge (Senior Division), Amritsar in favour of

the respondent-wife. The appellant-husband filed an appeal before the lower

Appellate Court against the above said order which was dismissed and

thereafter, a revision petition was filed by the appellant-husband before this

Court whereby, the execution proceedings were stayed and the matter was

referred to Mediation and Conciliation centre for exploring some amicable

settlement between the parties.

9. Further, it was asserted that the respondent-wife also filed a

complaint under Sections 415/418/420/463/464/468/470/471/494 read with

Section 120-B IPC against the appellant-husband alleging that he had

performed second marriage with one Sudeep Kaur @ Sandeep Kaur during

existence of the marriage with the respondent-wife and had two children out of

the said wedlock. During the pendency of the above said complaint, the

respondent-wife made a request that the appellant-husband and Sudeep Kaur @

Sandeep Kaur may be directed to undergo DNA examination which was

declined by the trial Court. Thereafter, the respondent-wife filed a revision

against the above said order which was also declined by the learned Additional

Sessions Judge, Amritsar vide order dated 14.12.2015.

10. It was further asserted that the above said complaint filed by the

respondent-wife was dismissed vide order dated 10.02.2016. Aggrieved against

the above said order, respondent-wife filed a revision before the competent

Court which was partly allowed by the learned Additional District Judge,

Amritsar and remanded back matter in question to the trial Court for its fresh

consideration vide order dated 24.06.2016. Thereafter, appellant-husband filed

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a petition under Section 482 Cr.P.C. in which, this Court was pleased to issue

notice of motion and directed the trial Court to adjourn the case beyond the date

fixed by trial Court. It was further pleaded by the appellant-husband that in

order to explore possibility of some amicable settlement between the parties,

Rs. 10,00,000/- were also offered by the appellant-husband. However, the

above said settlement was not accepted by the respondent-wife. Lastly, it was

pleaded by the appellant-husband that the respondent-wife had deserted him

since 21.01.1994. Hence, the appellant-husband has filed petition under Section

13 of Hindu Marriage Act for dissolution of the marriage on the grounds of

cruelty and desertion.

11. Upon notice, the respondent-wife entered appearance and filed a

written statement. While admitting the factum of marriage, it was alleged that

the petition filed by the appellant-husband under Section 13 of the Hindu

Marriage Act was counterblast to the complaint filed by the respondent-wife

against the appellant-husband. It was further pleaded by the respondent-wife

that the appellant-husband had contracted a second marriage with one Sudeep

Kaur @ Sandeep Kaur during subsistence of the first marriage, and in this

regard, the respondent-wife had filed a complaint under Sections

494/420/467/471 IPC before the competent authority. It was further pleaded

that the appellant-husband had two children out of second marriage with

Sudeep Kaur @ Sandeep Kaur. The respondent-wife further pleaded that she

became pregnant but suffered a miscarriage in the eighth month of pregnancy

due to atrocities committed by the appellant-husband and his family members.

It was further asserted that earlier, the appellant-husband had filed a divorce

petition against the respondent-wife, which was dismissed by the learned

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District Judge, Amritsar and the appeal filed against the same by the appellant-

husband was also dismissed. It was also pleaded by the respondent-wife that

she was always ready and willing to join the society of the appellant-husband,

but it was the appellant-husband who himself had been refusing to rehabilitate

the respondent-wife. The respondent-wife suffered mental torture due to

atrocities committed by the appellant-husband and his family members and her

health was adversely affected. As such, respondent-wife left her matrimonial

house and went to her parental house on 08.05.1987. It was further pleaded by

the respondent-wife that her brother got her admitted in the hospital where,

despite the best efforts made by doctors, respondent-wife suffered a

miscarriage. It was also the case of the respondent-wife that the appellant-

husband was guilty of turning the respondent-wife out of her matrimonial home

while raising different demands of dowry time and again and it was always the

efforts of the respondent-wife and her parents who requested the appellant-

husband to reconcile with respondent-wife but all went in vain.

12. On the basis of the pleadings of the parties, following issues were

framed by the learned Family Court:-

“1. Whether the petitioner is entitled to get decree of divorce on the ground

of cruelty? OPP

2. Whether the petitioner is entitled to get decree of divorce on the ground

of desertion? OPP

3. Whether the present petition is legally not maintainable? OPR.

4. Relief.”

13. In evidence, the appellant-husband examined himself as PW1, and

also examined Dr. Rakesh Bharti as PW2, Sanjiv Saini as PW3 and Darshana

Kumari as PW4.

FAO-1538 of 2020 :7:

14. On the other hand, the respondent-wife examined Sanjeev Kumar

as RW1, Rishi Rai as RW2, Baldev Singh as RW3, Rajinder Kumar as RW4,

Raubins Kumar as RW5, Jagdeep Kumar as RW6, Aman Sethi as RW7,

Sukhdeep Singh as RW8, Karamjit Singh as RW9, Mohpreet Singh as RW10,

Ashwani Sharma as RW11, Shiv Parshad Yadav as RW12, Sanjeev Kumar as

RW13 and herself as RW-14 and Parveen Kumar as RW15.

15. The learned Family Court, upon consideration of the rival

contentions and the evidence on record, dismissed the petition filed by the

appellant-husband.

16. Learned counsel appearing on behalf of the appellant-husband

vehemently argued that the impugned judgment and decree passed by the

learned Family Court are unsustainable, having been rendered on mere

conjectures and surmises. The learned counsel further submits that the parties

have been residing separately since the year 1994 i.e. for nearly three decades,

during which no cohabitation has taken place, and there is no child born out of

the wedlock. The learned counsel submits that the marriage has virtually

become flat, devoid of affection and companionship, and taking into

consideration the above-said facts, the relationship stands dead. Such

circumstances amounts to cruelty to both the parties, warranting dissolution of

marriage under Section 13 of the Act. Reliance is placed on the judgment of

Hon'ble the Supreme Court in Rakesh Raman Vs. Kavita, 2023(2) RCR(Civil)

781.

17. Per contra, learned counsel appearing on behalf of the respondent-

wife, defending the impugned judgment and decree passed by the learned

Family Court, has argued that the findings recorded by the learned Family

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Court are based on the evidence available on record and it is rightly held that

the appellant-husband could not prove the alleged cruelty committed by her

against the appellant-husband and she is willing to reconcile and cohabit with

the appellant-husband.

18. Before proceeding further, it is pertinent to note that the appellant-

husband is not present before this Court as the appellant-husband is undergoing

treatment for prostate cancer however, the respondent-wife appeared in-person.

A suggestion was put to the respondent-wife as to whether, she is willing to

explore the possibility of settlement. The respondent-wife adamantly declined

to enter into any settlement.

19. We have heard the learned counsels for both the parties and have

carefully perused through the records of the case, including the impugned

judgment and decree. In our considered opinion, the following questions would

arise for adjudication in the present appeal:-

1. Whether a long separation between the parties, rendering the

marital bond as unworkable and its having been ruptured beyond

repair, amounts to mental cruelty?

2. Whether the impugned judgment and decree passed by the

learned Family Court, requires any interference?

20. The learned Family Court while dismissing the divorce petition

filed by the appellant-husband, held that since the appellant-husband and

respondent-wife have admittedly been residing separately since 1994, and that

there has been no cohabitation during this time, as such, question of physical

cruelty committed by the respondent-wife upon the appellant-husband did not

arise. The learned Family Court further observed that even though two

FAO-1538 of 2020 :9:

litigations were filed by the respondent-wife against the appellant-husband, one

being civil suit for maintenance and other a criminal complaint alleging that the

appellant-husband had contracted a second marriage with one Sudeep Kaur @

Sandeep Kaur and fathered two children from her does not amount to any

cruelty as it is the legal right of a citizen under the Constitution of India to avail

legal remedies before a court of law. With regard to the allegation that the

appellant-husband solemnized marriage with Sudeep Kaur @ Sandeep Kaur

and had begotten two children, the learned Family Court observed that the

same could not be proved, as all the photographs produced were not proved in

accordance with law. The Court further held that no substantive evidence was

led by the appellant-husband to establish the acts of cruelty on behalf of the

respondent-wife. The Court also held that mere filing of litigation in the Court

does not amount to mental cruelty to the appellant-husband.

21. On the issue of desertion, the learned Family Court held that the

respondent-wife joined the company of the appellant-husband in the year 1993

and hence the plea of continuous desertion could not be sustained. Further the

evidence led by PW2, Dr. Rakesh Bharti, the learned Family Court recorded a

finding that as Dr. Rakesh Bharti being admittedly a close friend of the

appellant-husband, he was an interested witness and could not be relied upon

to prove desertion.

22. The learned Family Court also observed that in light of the

allegation regarding appellant-husband’s relationship with another woman

namely, Sudeep Kaur @ Sandeep Kaur and the existence of two children as

such, it was apparent that the respondent-wife has been living separately and

could not be held responsible for desertion. Lastly, the learned Family Court

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took note of the fact that the parties have been living separately since 1994 and

there is no possibility of resumption of cohabitation between them.

Nevertheless, it was held that long separation, by itself, is not a statutory

ground for divorce under the Hindu Marriage Act,1955. In the absence of any

specific provision enabling dissolution of marriage solely on the basis of dead

marriage the petition was dismissed.

23. Although the appellant-husband was unable to produce convincing

evidence before the learned Family Court to establish the allegations of cruelty

or desertion, the question that arises for consideration is whether the marriage

has become unworkable to such an extent that it no longer serves its very

purpose. The admitted position is that the parties have been living separately

for over thirty-one years. Throughout this prolonged period of separation, there

has been no resumption of cohabitation, nor any genuine effort has been made

by either side to revive the marital relationship. Instead of bringing the parties

closer, the long-drawn litigation between them has only fueled further

animosity, mistrust and hostility worsening their relationship with each passing

day.

24. In the present case, efforts have been made firstly to resolve the

matrimonial dispute through the process of mediation by the learned Family

Court, which is one of the effective modes of alternative mechanism in

resolving the personal dispute but the mediation between the parties failed.

An attempt for reconciliation was made by this Court in the earlier appeal filed

by the appellant-husband (FAO-12-M-2000) under Section 13 of Hindu

Marriage Act wherein the Court interacted with the parties present in person.

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Resultantly, time was sought by the parties to deal with their differences and

reunite. The order dated 08.05.2002 reads as under:

“Both the parties are present in Court. The matter has been

taken up in my chamber in the presence of learned counsel

for the parties. The parties seeks time for making an effort

to reconciliate their marriage. Adjourned to 08.05.2002.”

25. However, all went in vain and ultimately, the divorce was not

granted to the appellant-husband as he was unable to prove the cruelty

committed upon him. Subsequently, another divorce petition (HMA 1212-

2016) under Section 13 of the Act was filed by the appellant-husband wherein,

the parties were directed to be present before the Mediator vide order dated

15.12.2016 passed by the learned Family Court. The report of the Mediator

dated 18.02.2017 reads as under:

“The present case was referred by the Hon’ble Court of Ms. Rajni

Chhokra, ADJ, Amritsar in the Mediation centre, Amritsar to facilitate the

settlement between the parties. In this case, both the parties have

appeared in the Mediation Centre and efforts were made for amicable

settlement between the parties in single as well as in joint sessions but

inspite of those efforts compromise could not be effected. As such, the case

is being returned to the referral Court for date fixed.”

26. Furthermore, an effort was put in by a Co-ordinate Bench of this

Court on 16.10.2023 for reconciliation or One Time Settlement between the

parties but all remained futile. The order dated 16.10.2023 reads as under:

“Both the parties present in person. We have also interacted with

them to some extent. It appears that there is no chance of amicable

resolution of the dispute. The appeal needs to be argued on merits.

Adjourned to 18.12.2023 for arguments.”

FAO-1538 of 2020 :12:

27. It is an undisputed fact on record that the parties have been

residing separately since 1994. For more than three decades, there has been a

complete cessation of marital obligations and cohabitation between them,

which clearly demonstrates that the very foundation of their matrimonial

relationship has collapsed. The long passage of time without any effort or

inclination on either side to restore companionship leaves no real possibility of

reunion. Even the mediation proceedings conducted before the learned Family

Court and this Court ended in failure. These unsuccessful attempts at

reconciliation is reflective of the deep-seated biterness, resentment and lack of

mutual trust that has come to define their relationship.

28. It is true that the Court bears the solemn duty to safeguard the

sanctity of marriage and to encourage the preservation of matrimonial ties

wherever feasible. However, this obligation cannot be stretched to compel the

continuation of a relationship that has become wholly unworable and devoid of

substance. When a marriage has broken down, has lost all vitality and has

become nothing more than a dead formality, insisting upon reunion would not

only be futile but would also amount to prolonging the suffering of both the

parties.

29. It is a well established legal principle that, for conduct to

amount to cruelty, the alleging party must clearly demonstrate that the

behaviour of the other party has been such that continued cohabitation is no

longer reasonably possible. The acts complained of must be of such a nature

that they lead to the logical and reasonable conclusion that reconciliation

between the parties is not feasible. Cruelty may be physical harm, mental

distress or both. While there is no fixed formula to quantify cruelty, each

FAO-1538 of 2020 :13:

case must be assessed individually, with due regard to the seriousness and

context of allegations.

30. In Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511

, it was

held by Hon’ble the Supreme Court that no straightjacket formula can be

laid down regarding cruelty, but certain instances/conduct of human

behaviour are relevant for the purpose of dealing with the cases of `mental

cruelty’. The relevant extract of the judgment is reproduced hereunder:-

“101. No uniform standard can ever be laid down for guidance, yet we

deem it appropriate to enumerate some instances of human behaviour

which may be relevant in dealing with the cases of “mental cruelty”. The

instances indicated in the succeeding paragraphs are only illustrative and

not exhaustive:

(i) On consideration of complete matrimonial life of the parties, acute

mental pain, agony and suffering as would not make possible for the

parties to live with each other could come within the broad parameters of

mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the

parties, it becomes abundantly clear that situation is such that the

wronged party cannot reasonably be asked to put up with such conduct

and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent

rudeness of language, petulance of manner, indifference and neglect may

reach such a degree that it makes the married life for the other spouse

absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish,

disappointment, frustration in one spouse caused by the conduct of other

for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to

torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually

affecting physical and mental health of the other spouse. The treatment

complained of and the resultant danger or apprehension must be very

grave, substantial and weighty.

FAO-1538 of 2020 :14:

(vii) Sustained reprehensible conduct, studied neglect, indifference or total

departure from the normal standard of conjugal kindness causing injury to

mental health or deriving sadistic pleasure can also amount to mental

cruelty.

(viii) The conduct must be much more than jealousy, selfishness,

possessiveness, which causes unhappiness and dissatisfaction and

emotional upset may not be a ground for grant of divorce on the ground of

mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married

life which happens in day-to-day life would not be adequate for grant of

divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated

instances over a period of years will not amount to cruelty. The ill conduct

must be persistent for a fairly lengthy period, where the relationship has

deteriorated to an extent that because of the acts and behaviour of a

spouse, the wronged party finds it extremely difficult to live with the other

party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilisation without

medical reasons and without the consent or knowledge of his wife and

similarly, if the wife undergoes vasectomy or abortion without medical

reason or without the consent or knowledge of her husband, such an act of

the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable

period without there being any physical incapacity or valid reason may

amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to

have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may

fairly be concluded 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. In such like situations, it may lead to mental

cruelty.”

31.

In Naveen Kohli v. Neetu Kohli, 2006 (4) SCC 558

, Hon’ble

the Supreme Court while considering a case of irretrievable breakdown of

marriage, held that mere fact that the wife had been living separately for a

FAO-1538 of 2020 :15:

long time but did not not want divorce by mutual consent only to make the

life of her husband miserable, such conduct amounts to cruelty. The relevant

extract of the judgment is reproduced hereunder:-

"62. Even at this stage, the respondent does not want

divorce by mutual consent. From the analysis and evaluation of the entire

evidence, it is clear that the respondent has resolved to live in agony only

to make life a miserable hell for the appellant as well. This type of

adamant and callous attitude, in the context of the facts of this case, leaves

no manner of doubt in our mind that the respondent is bent upon treating

the appellant with mental cruelty. It is abundantly clear that the marriage

between the parties had broken down irretrievably and there is no chance

of their coming together, or living together again. The High Court ought to

have visualized that preservation of such a marriage is totally unworkable

which has ceased to be effective and would be greater source of misery for

the parties.

xxx xxx xxx

67. The High Court ought to have considered that a human

problem can be properly resolved by adopting a human approach. In the

instant case, not to grant a decree of divorce would be disastrous for the

parties. Otherwise, there may be a ray of hope for the parties that after a

passage of time (after obtaining a decree of divorce) the parties may

psychologically and emotionally settle down and start a new chapter in

life.

68. In our considered view, looking to the peculiar facts of the

case, the High Court was not justified in setting aside the order of the Trial

Court. In our opinion, wisdom lies in accepting the pragmatic reality of

life and take a decision which would ultimately be conducive in the

interest of both the parties.”

32.

In R. Srinivas Kumar v. R. Shametha, 2019(4) RCR (Civil)

936, Hon’ble the Supreme Court considered a case where the husband and

wife had been residing separately for the last 22 years. All efforts to continue

the marriage had failed. It was held by Hon’ble the Supreme Court that in

the aforesaid case the marriage between the parties had irretrievably broken

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down, and exercising the powers under Article 142 of the Constitution of

India, the marriage between the appellant-husband and respondent-wife was

ordered to be dissolved. The relevant extract of the judgment is reproduced

hereunder:-

“5. We have heard the learned counsel for the respective

parties at length.

5.1 At the outset, it is required to be noted and does not seem to be

in dispute that since last 22 years both the appellant husband and

the respondentwife are residing separately. It also appears that all

efforts to continue the marriage have failed and there is no

possibility of reunion because of the strained relations between the

parties. Thus, it appears that marriage between the appellant-

husband and the respondentwife has irretrievably broken down. In

the case of Hitesh Bhatnagar (supra), it is noted by this Court that

Courts can dissolve a marriage as irretrievably broken down only

when it is impossible to save the marriage and all efforts are made

in that regard and when the Court is convinced beyond any doubt

that there is actually no chance of the marriage surviving and it is

broken beyond repair.

5.2 In the case of Naveen Kohli (supra), 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

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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 he fact and to declare defunct de jure

what is already defunct de facto….”

A similar view has been expressed in the case of Samar Ghosh

(supra).

6. In the similar set of facts and circumstances of the case, this

Court in the case of Sukhendu Das (supra) 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. 6. 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 the 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 suffer financially

in future and she may not have to depend upon others.

7. 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

FAO-1538 of 2020 :18:

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 appellanthusband and the

respondentwife 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

respondentwife 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.

8. In view of the above and for the reasons stated above, the

application for divorce filed by the appellanthusband for

dissolution of marriage is hereby allowed. The marriage between

the appellanthusband and the respondentwife is ordered to be

dissolved in exercise of powers under Article 142 of the

Constitution of India on the condition and as agreed by the learned

Senior Advocate appearing on behalf of the appellant husband that

the appellanthusband shall pay to the respondent wife a lump sum

permanent alimony, quantified at Rs.20,00,000/ (Rupees Twenty

Lakhs) to be paid directly to the respondentwife by way of demand

draft within a period of eight weeks from today. Till the permanent

alimony as above is paid to the respondentwife, the appellant-

husband to continue to pay the maintenance as being paid to her.

9. The appeal is allowed in the aforesaid terms. No costs.”

33. In case of Neha Tyagi v. Lieutenant Colonel Deepak Tyagi,

2022(1) RCR (Civil) 250, the wife and husband were not staying together

for a long time. It was held by Hon'ble the Supreme Court that there was an

irretrievable break down of the marriage between the parties and, exercising

the powers under Article 142 of the Constitution of India, the Court

confirmed the decree passed by the learned Family Court, which was upheld

by the High Court, dissolving the marriage between the wife and the

husband. The relevant extract of the judgment is reproduced hereunder:-

FAO-1538 of 2020 :19:

“5. However, considering the fact that both, the appellant-wife and the

respondent-husband are not staying together since May, 2011 and

therefore it can be said that there is irretrievable breakdown of marriage

between them. It is also reported that the respondent-husband has already

re-married. Therefore, no useful purpose shall be served to further enter

into the merits of the findings recorded by the courts below on “cruelty”

and “desertion” by the appellant-wife. Therefore, in the facts and

circumstances of the case and in exercise of powers under Article 142 of

the Constitution of India, the decree passed by the learned Family Court,

confirmed by the High Court, dissolving the marriage between the

appellant-wife and the respondent-husband is not required to be interfered

with on account of irretrievable breakdown of marriage.

However, at the same time, the respondent-husband cannot be absolved

from his liability and responsibility to maintain his son Pranav till he

attains the age of majority. Whatever be the dispute between the husband

and the wife, a child should not be made to suffer. The liability and

responsibility of the father to maintain the child continues till the child/son

attains the age of majority. It also cannot be disputed that the son Pranav

has a right to be maintained as per the status of his father. It is reported

that the mother is not earning anything. She is residing at her parental

house at Jaipur. Therefore, a reasonable/sufficient amount is required for

the maintenance of her son including his education etc. which shall have

to be paid by the respondent-husband, irrespective of the decree of

dissolution of marriage between the appellant-wife and the respondent-

husband. The amount which was being paid pursuant to the order passed

by the Army Authorities on 15.11.2012 has also been stopped by the

respondent-husband since December, 2019.

6. In view of the above and for the reasons stated above, the present

appeal stands disposed of by confirming the decree of divorce/dissolution

of the marriage between the appellant-wife and the respondent-husband.

However, the respondent-husband is directed to pay Rs.50,000/- per month

with effect from December, 2019 to the appellant-wife towards the

maintenance of son Pranav as per the status of the respondent herein. The

arrears @ Rs. 50,000/- per month since December, 2019 to November,

2021 shall be paid within a period of eight weeks from today. The current

maintenance @ Rs. 50,000/- per month from the month of December, 2021

onwards be deducted from the salary of the respondent-husband by the

Army Authorities, which shall be directly credited in the bank account of

FAO-1538 of 2020 :20:

the appellant-mother. The appellant-mother is directed to furnish the bank

details to the Army Authorities within a period of one week from today. It

is further ordered that if the arrears @ Rs. 50,000/- per month

commencing from December, 2019 till November, 2021, as ordered

hereinabove is not paid by the respondent-father within a period of eight

weeks from today, in that case, the recovery of arrears + monthly

maintenance shall be worked out by the Army Authorities and the same

shall be deducted in equal monthly instalments from the salary of the

respondent-father, so as not to exceed 50% of the total monthly pay and

allowances of the respondent.

7. The instant appeal stands disposed of, with the aforesaid directions.”

34. In Munish Kakkar v. Nidhi Kakkar, 2020(14) SCC 657

Hon'ble the Supreme Court, taking into consideration that the parties had

been living apart for the last 22 years and that a re-union was found to be

impossible, exercised the powers under Article 142 of the Constitution of

India granted a decree of divorce, thereby dissolving the marriage inter se

the parties. The relevant extract of the judgment is reproduced hereunder:-

“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

FAO-1538 of 2020 :21:

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, (2019) 9 SCC 409 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

FAO-1538 of 2020 :22:

Court has also extended caution from time to time on this aspect, apart

from noticing 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 L 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 L 7,500 per month should

be continued to be paid by the appellant to the respondent, and it is open

FAO-1538 of 2020 :23:

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.”

35. In Shri Rakesh Raman vs. Smt. Kavita 2023(2) RCR (Civil)

781, Hon'ble the Supreme Court held that as the couple was living separately

for the last almost 25 years with no cohabitation and no child was born from

the marriage, and there was no possibility of compromise and settlement, it

is not necessary in every case to pin point to an act of “cruelty” or

blameworthy conduct of the spouse. The nature of relationship, the general

behaviour of parties towards each other, or long separation between them are

relevant factors to be considered. Taking into consideration the facts of the

above said case, Hon'ble the Supreme Court held that long separation,

absence of cohabitation, complete breakdown of all meaningful bonds, and

the existing bitterness between the two, has to be read as cruelty under

Section 13(1) (ia) of the 1955 Act. The relevant extract of the judgment is

reproduced hereunder:-

“18. We have a married couple before us who have barely stayed

together as a couple for four years and who have now been living

separately for the last 25 years. There is no child out of the wedlock. The

matrimonial bond is completely broken and is beyond repair. We have no

doubt that this relationship must end as its continuation is causing cruelty

on both the sides. The long separation and absence of cohabitation and the

complete breakdown of all meaningful bonds and the existing bitterness

between the two, has to be read as cruelty under Section 13(1) (ia) of the

1955 Act. We therefore hold that in a given case, such as the one at hand,

where the marital relationship has broken down irretrievably, where there

is a long separation and absence of cohabitation (as in the present case for

the last 25 years), with multiple Court cases between the parties; then

FAO-1538 of 2020 :24:

continuation of such a ‘marriage’ would only mean giving sanction to

cruelty which each is inflicting on the other. We are also conscious of the

fact that a dissolution of this marriage would affect only the two parties as

there is no child out of the wedlock.

19. Under these circumstances, we uphold the Order of the Trial Court,

though for different grounds given by us in our order, and we set aside the

Order of the High Court and grant a decree of divorce to the

appellant/husband. Their marriage shall stand dissolved.

20. However, considering the fact that the appellant/husband is an

employee in Life Insurance Corporation, as we have been informed at the

Bar and his present salary is more than Rs.1,00,000/ (One Lakh Rupees)

per month, we deem it fit and proper that he gives an amount of

Rs.30,00,000/ (Thirty Lakh Rupees) to the respondent/wife as permanent

alimony. This amount of Rs.30,00,000/ (Thirty Lakh Rupees) shall be

deposited in the name of the respondent, within a period of four weeks

from today with the Registry of this Court. The decree of divorce shall be

made effective only from the date of such a deposit. On the event of such

deposit, the Registry after verifying the credentials of the respondent/wife

shall disburse the amount to the respondent/wife without further reference

to this Court.

With the aforesaid directions, the appeal stands allowed.”

36. Co-ordinate Bench of this Court in FAO-M-118-M of 2004

titled 'Som Dutt v. Babita Rani', decided on 25.05.2022, held that the

relationship of husband and wife has come to an end, and if the respondent-

wife is not ready to give mutual divorce to the husband, whether this act of

her would amount to cruelty towards husband, keeping in view the fact that

the wife is not staying with the husband for the last more than 23 years and

there is no scope that they can cohabitate as husband and wife. It was held

that taking into consideration the peculiar facts of the case, as the parties

have separated and the separation has continued for a sufficient length of

time, it can be presumed that the marriage has been broken down. The

FAO-1538 of 2020 :25:

consequence of preservation in law of an unworkable marriage, which has

long ceased to be effective, are bound to be a source of greater misery for

the parties. The relevant extract of the judgment is reproduced hereunder:-

“[11] The issue for consideration in the present appeal would be

whether the relationship of the husband and wife has come to an end and

if the respondent-wife is not ready to give mutual divorce to the appellant-

husband, whether this act of her, would amount to cruelty towards

husband, keeping in view the fact that she is not staying with her husband

for the last about 23 years and there is no scope that they can cohabit as

husband and wife again. Reference at this stage can be made to a

judgment of Hon'ble the Supreme Court of India in a case of Chandra

Kala Trivedi vs. Dr. S.P.Trivedi, 1993 (4) SCC 232 wherein Hon'ble the

Supreme Court was considering a case where marriage was irretrievably

broken down and held that in these case, the decree of divorce can be

granted where both the parties have levelled such allegations against each

other that the marriage appears to be practically dead and the parties

cannot live together.

[12] Reference at this stage can be made to a judgment of three

Judge Bench of Hon'ble the Supreme Court of India in case of A

Jayachandra vs. Aneel Kaur, 2005 (2) SCC 22 wherein Hon'ble the

Supreme Court was having an occasion to consider the case of divorce on

the basis of cruelty including mental cruelty. While examining the

pleadings and evidence brought on record, the Court emphasized that the

allegation of cruelty is of such nature in which resumption of marriage is

not possible, however, referring various decisions, the Court observed that

irretrievable breaking down of marriage is not one of statutory grounds on

which Court can direct dissolution of marriage, this Court has with a view

to do complete justice and shorten the agony of the parties engaged in

longdrawn legal battle, directed in those cases dissolution of marriage. In

para 17, it has been observed as under:-

“17. Several decisions, as noted above, were cited by

learned counsel for the respondent to contend that even if marriage

has broken down irretrievably decree of divorce cannot be passed.

In all these cases it has been categorically held that in extreme

cases the court can direct dissolution of marriage on the ground

that the marriage had broken down irretrievably as is clear from

FAO-1538 of 2020 :26:

para 9 of Shyam Sunder case. The factual position in each of the

other cases is also distinguishable. It was held that long absence of

physical company cannot be a ground for divorce if the same was

on account of the husband's conduct. In Shyam Sunder case it was

noted that the husband was leading adulterous life and he cannot

take advantage of his wife shunning his company. Though the High

Court held by the impugned judgment that the said case was

similar, it unfortunately failed to notice the relevant factual

difference in the two cases. It is true that irretrievable breaking of

marriage is not one of the statutory grounds on which court can

direct dissolution of marriage, this Court has with a view to do

complete justice and shorten the agony of the parties engaged in

long- drawn legal battle, directed in those cases dissolution of

marriage. But as noted in the said cases themselves, those were

exceptional cases.”

[13] Hon'ble the Supreme Court in a case of Naveen Kohli vs. Neetu

Kohli, 2006 (4) SCC 558 was considering a case of irretrievable break

down of marriage. In this case, wife living separately for long but did not

want divorce by mutual consent only to make life of her husband

miserable. Thus, the decree of divorce was granted and held it is a cruel

treatment and showed that the marriage had broken irretrievably. In para

62, 67, 68 and 69, it has been observed as under:-

“62. Even at this stage, the respondent does not want divorce by

mutual consent. From the analysis and evaluation of the entire

evidence, it is clear that the respondent has resolved to live in

agony only to make life a miserable hell for the appellant as well.

This type of adamant and callous attitude, in the context of the

facts of this case, leaves no manner of doubt in our mind that the

respondent is bent upon treating the appellant with mental cruelty.

It is abundantly clear that the marriage between the parties had

broken down irretrievably and there is no chance of their coming

together, or living together again. The High Court ought to have

visualized that preservation of such a marriage is totally

unworkable which has ceased to be effective and would be greater

source of misery for the parties.

xxx xxx xxx

67. The High Court ought to have considered that a human

problem can be properly resolved by adopting a human approach.

FAO-1538 of 2020 :27:

In the instant case, not to grant a decree of divorce would be

disastrous for the parties. Otherwise, there may be a ray of hope

for the parties that after a passage of time (after obtaining a

decreeof divorce) the parties may psychologically and emotionally

settle down and start a new chapter in life.

68. In our considered view, looking to the peculiar facts of the

case, the High Court was not justified in setting aside the order of

the Trial Court. In our opinion, wisdom lies in accepting the

pragmatic reality of life and take a decision which would

ultimately be conducive in the interest of both the parties.

69. Consequently, we set aside the impugned judgment of the High

Court and direct that the marriagebetween the parties should be

dissolved according to the provisions of the Hindu Marriage Act,

1955. In the extra-ordinary facts and circumstances of the case, to

resolve the problem in the interest of all concerned, while

dissolving the marriage between the parties, we direct the

appellant to pay Rs.25,00,000/- (Rupees Twenty five lacs) to the

respondent towards permanent maintenance to be paid within eight

weeks. This amount would include Rs.5,00,000/- (Rupees five lacs

with interest) deposited by the appellant on the direction of the

Trial Court. The respondent would be at liberty to withdraw this

amount with interest. Therefore, now the appellant would pay only

Rs.20,00,000/- (Rupees Twenty lacs) to the respondent within the

stipulated period. In case the appellant fails to pay the amount as

indicated above within the stipulated period, the direction given by

us would be of no avail and the appeal shall stand dismissed. In

awarding permanent maintenance we have taken into

consideration the financial standing of the appellant.”

[14] In the present case, the marriage between the parties had broken

down irretrievably since long and there is no chance of their coming

together, or living together again. Further, not to grant decree of divorce

would be disastrous for the parties.

[15] The three Judges' Bench of Hon'ble the Supreme Court in a case of

Samar Ghosh vs. Jaya Ghosh, 2007 (4) SCC 511 passed the decree on the

ground of mental cruelty but the concept of irretrievable breakdown of

marriage has been discussed in detail referring the 71

report of the Law

Commission of India

FAO-1538 of 2020 :28:

[16] Hon'ble the Supreme Court in a case of K. Srinivas Rao vs. D.A.

Deepa, 2013 (5) SCC 266 has observed that though irretrievable

breakdown of marriage is not a ground for divorce under the Hindu

Marriage Act, however, marriage which is dead for all purposes, cannot

be revived by Court's verdict, if parties are not willing since marriage

involves human sentiments and emotions and if they have dried up, there is

hardly any chance of their springing back to life on account of artificial

reunion created by court decree.

[17] It is well settled that once the parties have separated and separation

has continued for a sufficient length of time and anyone of them presented

a petition for divorce, it can well be presumed that the marriage has

broken down. The Court, no doubt, should seriously make an endeavour to

reconcile the parties; yet, if it is found that the breakdown is irreparable,

then divorce should not be withheld. The consequences of preservation in

law of the unworkable marriage which has long ceased to be effective are

bound to be a source of greater misery for the parties.

[18] In the present case, the appellant and the respondent are living

separately for the last more than 23 years. Firstly efforts were made to

resolve the matrimonial dispute through the process of mediation, which is

one of the effective mode of alternative mechanism in resolving the

personal dispute but the mediation failed between the parties.

[19] Applying the ratio of the above-mentioned judgments to the facts of

the present case and keeping in view the extra-ordinary facts and

circumstances of the case, the appeal is allowed, judgment dated

07.04.2004 passed by the Additional District Judge, Faridkot, is set

asideand decree of divorce is granted in favour of the appellant-husband.

Decree-sheet be prepared accordingly. However, we direct the appellant-

husband to make an F.D. of Rs.10 lakhs as permanent alimony in the name

of the respondent-wife”

37. Co-ordinate Bench of this Court in FAO-M-925 of 2022 titled

'Yash Paul v. Pawan Kumari', decided on 13.02.2025, held that where the

parties have been living separately for a considerably long period,

compelling them to live together, would become a fiction supported by a

legal tie and it would show scant regard for the feelings and emotions of the

FAO-1538 of 2020 :29:

parties. This, in itself, would amount to mental cruelty to both the parties.

The relevant extract of the judgment is reproduced hereunder:-

“In Naveen Kohli v. Neetu Kohli

, 2006 (4) SCC 558, the

Hon’ble Apex Court was considering a case of irretrievable breakdown of

marriage. In the said case, the wife had been living separately for a long

time, but did not want divorce by mutual consent only to make life of her

husband miserable. The Hon’ble Apex Court, while holding the acts and

conduct of the wife as cruelty, has held as under:-

"62. Even at this stage, the respondent does not want divorce by