2024 INSC 517 SLP(C) No. 29464 of 2019 Page 1 of 14

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2024

(Arising out of SLP (C) No.29464 of 2019)

VIKAS KANAUJIA …APPELLANT(S)

VERSUS

SARITA …RESPONDENT(S)

J U D G M E N T

VIKRAM NATH, J.

1. Leave granted.

2. The present appeal is preferred by Appellant-Dr.

Vikas Kanaujia against the impugned order of

High Court of Allahabad dated 22.08.2019,

passed in First Appeal No. 31 of 2007, whereby

the High Court allowed the appeal and set aside

the decree of divorce granted by the Family

Court, Meerut on 20.12.2006 in Matrimonial

Case No. 123 of 2003 filed by the Appellant. The

Appellant-husband had filed the petition for

dissolution of marriage under Section 13 of the

SLP(C) No. 29464 of 2019 Page 2 of 14

Hindu Marriage Act, 1955

1 on the ground of

Cruelty.

3. The factual matrix of the case, along with the

record of multiple legal proceedings between the

parties, is summarised as follows:

4. Appellant-Dr. Vikas Kanaujia and Respondent-

Dr. Sarita got married to each other on

20.02.2002 in accordance with Hindu Rites and

Customs. The Respondent -wife came to her

marital home at Meerut. The Appellant

submitted in his plaint, that marriage was

consummated but later the relationship between

parties was strained as Respondent refused to

perform marital obligations and misbehaved with

his mother. On 22.02.2002, the younger brother

and maternal aunt of the Respondent allegedly

visited the house and the Respondent left for her

paternal home along with them. The Appellant

brought her back to marital home on

04.03.2002. Afterwards both the Appellant and

Respondent went to Udhampur (Jammu and

Kashmir) where the Appellant was working as an

1

In short, HMA

SLP(C) No. 29464 of 2019 Page 3 of 14

eye surgeon. However, the Appellant claims that

behaviour of Respondent was cold and indifferent

towards him. They both returned on 11.03.2002.

On 17.03.2002 the Thirteenth day function

(Terahi Ceremony) was held for a family member

of Appellant. On the evening of same day, the

Respondent left her marital home. Since then,

the Respondent is residing at her paternal home.

Thus, the Appellant and Respondent have lived

together for barely 23 days as the Respondent

shifted to her paternal home before completing

even a month at her marital home.

5. The Appellant states that he made repeated

attempts to bring back the Respondent but he

failed as Respondent refused to live with him.

Thus, the Appellant filed a suit under Section 9

of HMA for restitution of conjugal rights as Suit

No. 598 of 2002. The Respondent, on the other

hand, filed an application under Section 24 of the

HMA for maintenance as Suit No. 336 of 2002.

Both the cases were listed together before the

Family Court on 28.11.2002 however allegedly

the Respondent and her father misbehaved with

the father of Appellant on the day of proceedings.

SLP(C) No. 29464 of 2019 Page 4 of 14

Since no attempts of reconciliation were

successful, on 26.02.2003 the Appellant filed a

suit for dissolution of marriage under Section 13

of the HMA on the ground of ‘Cruelty’ as

Matrimonial Case No. 123 of 2003. Appellant

claimed ‘cruelty’ against Respondent on two

grounds. First, the Respondent did not fulfil her

marital obligation by depriving the Appellant of

his conjugal rights. Second, the Respondent

caused mental cruelty by her temperament and

misbehaviour with family members of Appellant.

On the other hand, in the Written Statement the

Respondent-wife has stated that Appellant was

unhappy in marriage since day one. She never

refused to join the company of Appellant and live

together. But the Appellant and his family

wanted to remarry him for dowry. They had

allegedly demanded dowry from Respondent as

well.

6. While the proceedings in Matrimonial suit were

pending, on 31.07.2006 the Family Court

rejected the application filed by Respondent

seeking maintenance under Section 24 of HMA,

SLP(C) No. 29464 of 2019 Page 5 of 14

on the ground that Respondent was also a doctor

and her earnings are at par with the Appellant.

7. The suit for restitution of conjugal rights was

later withdrawn by the Appellant. On

26.05.2003, the Respondent wife filed a petition

under Section 125 of the Code of Criminal

Procedure, 1973 seeking maintenance as Case

no. 89 of 2011. It was dismissed on 29.11.2013

on the ground that Respondent was earning at

par with Appellant and thus not entitled to

maintenance.

8. Further, on 24.02.2004 the Respondent filed

Criminal complaint at Meerut under Sections

498A, 406 and 34 of Indian Penal Code, 1860

2

against the Appellant, his parents and siblings.

In this complaint she alleged mental harassment,

dowry demand and retention of the dowry

articles by the accused persons in her marital

home, against the accused persons. On

05.11.2004, FIR bearing No. 965/2004 was

registered against the Appellant and

abovementioned family members. As the

2

In short, ‘IPC’

SLP(C) No. 29464 of 2019 Page 6 of 14

Sessions Court passed an order for Conciliation

on 15.06.2005, the Appellant and Respondent

lived together for 20 days from 15.06.2005 to

05.07.2005. However, on 05.07.2005, the police

arrested family members of Appellant - his

mother, father, sister and father, who were

subsequently granted bail.

9. On 20.12.2006, the Family Court passed final

order in Matrimonial Case No. 123 of 2003 by

granting decree of divorce to Appellant. It decreed

the suit on the ground of cruelty holding that

Respondent had initiated false criminal

proceedings against the Appellant. Thus, the

Respondent filed First Appeal No. 31 of 2007

before the High Court.

10. Meanwhile on 08.07.2013, the Metropolitan

Magistrate discharged the father, brother, and

sister of the Appellant from all charges in

connection with FIR No. 965 of 2004. The

Respondent filed application for framing charges

under Section 498A of IPC against the brother

and sister of Appellant. However, the Magistrate

rejected this application on 26.11.2013. On

18.12.2017, the Metropolitan Magistrate passed

SLP(C) No. 29464 of 2019 Page 7 of 14

final order acquitting the Appellant and his

mother. The Respondent filed Appeal before the

Sessions Court. On 02.03.2023, the Sessions

Court upheld the acquittal order passed by trial

court.

11. By the Impugned order passed on 22.08.2019,

the High Court allowed the appeal of Respondent

filed in matrimonial case against the order of

Family Court, thereby dismissing the petition to

grant divorce. The High Court denied the ground

of irretrievable breakdown of marriage stating

that parties have not been living separately on

account of their free will. It was the appellant who

refused to co-habit with the Respondent and she

herself did not desert him. Thus, the Appellant

has approached this Court against the order of

High Court which denied him divorce.

12. Afterwards, allegedly the Respondent visited

residence of Appellant and made unsavoury

enquiries in neighbourhood. She further filed a

Missing Persons Complaint alleging that

Appellant is missing. On 07.10.2019, the

Respondent entered into the workplace of

Appellant in OPD area of department of

SLP(C) No. 29464 of 2019 Page 8 of 14

Ophthalmology in Sanjay Gandhi Post Graduate

Institute of Medical Sciences, Lucknow along

with police personnel, causing disturbance in the

department. The Appellant even got a warning

letter from the head of the department to resolve

personal grievances outside the premises. The

police frequently visited the department and

made enquiries about appellant in connection

with the Missing complaint filed by Respondent.

13. We have heard learned counsel for the parties

and perused the material on record. We are of the

opinion that this is a fit case to exercise powers

conferred on this Court under Article 142 of the

Constitution of India. A Constitution Bench of

this Court in Shilpa Shailesh v. Varun

Sreenivasan

3

has held that this Court has the

discretion to dissolve the marriage on the ground

of irretrievable breakdown of marriage in order to

do ‘complete justice’ to the parties, even if one

spouse opposes such prayer. Relevant portion of

Paragraph 50 of the judgment is reproduced

hereunder:

3

2023 SCC OnLine SC 544

SLP(C) No. 29464 of 2019 Page 9 of 14

“……… …………. ………..

(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.”

14. In the present case we are convinced that the

marriage has failed completely and there is no

possibility of parties living together and thus the

continuation of further legal relationship is

unjustified.

SLP(C) No. 29464 of 2019 Page 10 of 14

15. The husband and wife have lived together on

their own will for hardly 23 days since marriage.

They further lived together for 20 more days from

15.06.2005 to 05.07.2015 as Sessions Court

passed order for conciliation. Thus, in total the

parties have not lived together for more than 43

days. The Respondent left her matrimonial house

within the first month of marriage. The period of

separation has been more than 22 years. The

possibility of parties living together is further

reduced as parties are in their early 50s now and

have built independent lives. Further, the parties

have fought multiple legal battles against each

other since 2002 itself with six cases filed against

each other, including criminal cases. The

Respondent had filed a criminal case against the

Appellant and his family members where they

were arrested although subsequently discharged

and acquitted.

16. Although the Respondent claims that she is

willing to live with the Appellant believing in the

sanctity of marriage, her actions are not in

consonance with her claim. In this long period of

22 years, there was no one to stop her from living

SLP(C) No. 29464 of 2019 Page 11 of 14

together with the Appellant. The mediation and

conciliation proceedings have failed. The

Appellant on the other hand states that the claim

of willingness to live together is falsely projected

claim before the Court of law only to mislead the

Court, delay the proceedings and harass the

appellant.

17. Thus, the effective cumulation of actions of both

the parties in past 22 years since marriage has

resulted in demolition of their matrimonial bond

beyond repair. The marriage has ceased to exist

both in substance and in reality. The relation has

even taken a sour taste as the families of parties

have also developed rivalries. The act of

Respondent to lodge a missing complaint against

Appellant after the delivery of impugned order is

also indicative of the bitter relation between the

parties. Considering the long separation period of

22 years, lack of existence of marriage between

the parties and the sour relations developed due

to continuous legal battles, we deem this case to

be fit for exercise of extraordinary powers

conferred under Article 142 of the Constitution.

SLP(C) No. 29464 of 2019 Page 12 of 14

18. In the case of Rajib Kumar Roy vs Sushmita

Saha

4

, this Court exercised the power conferred

under Article 142 of the Constitution of India by

dissolving the marriage between parties who

were living separately for 12 years. Paragraph

Nos. 9,10 and 11 of the judgement are

reproduced hereunder:

“9. Continued bitterness, dead emotions and

long separation, in the given facts and

circumstances of a case, can be construed

as a case of “irretrievable breakdown of

marriage”, which is also a facet of “cruelty”.

In Rakesh Raman v. Kavita, 2023 SCC

OnLine SC 497, this is precisely what was

held, that though in a given case cruelty as

a fault, may not be attributable to one

party alone and hence despite irretrievable

breakdown of marriage keeping the parties

together amounts to cruelty on both sides.

Which is precisely the case at hand.

10.Whatever may be the justification for the

two living separately, with so much of time

gone by, any marital love or affection,

which may have been between the parties,

seems to have dried up. This is a classic

case of irretrievable breakdown of

4

2023 SCC OnLine SC 1221

SLP(C) No. 29464 of 2019 Page 13 of 14

marriage. In view of the Constitution

Bench Judgment of this court in Shilpa

Sailesh v. Varun Sreenivasan, 2023 SCC

OnLine SC 544 which has held that in

such cases where there is irretrievable

breakdown of marriage then dissolution of

marriage is the only solution and this

Court can grant a decree of divorce in

exercise of its power under Article 142 of

the Constitution of India.

11.We therefore declare the marriage to have

broken down irretrievably and therefore in

exercise of our jurisdiction under Article

142 of the Constitution of India we are of

the considered opinion that this being a

case of irretrievable breakdown of marriage

must now be dissolved by grant of decree

of divorce.”

19. In light of the facts and circumstances of the

present case, along with powers conferred under

Article 142 of the Constitution of India and

judicial precedents discussed herein, we hereby

grant the decree of divorce on account of

irretrievable breakdown of marriage. As both the

parties are professionally qualified medical

doctors and have sufficient and equal earnings,

SLP(C) No. 29464 of 2019 Page 14 of 14

we are not inclined to award any permanent

alimony.

20. The judgement dated 22.08.2019 passed by the

High Court of Allahabad is hereby set aside. The

marriage between the parties is dissolved,

exercising powers under Article 142 of the

Constitution of India. The present appeal is

accordingly allowed.

21. Pending application(s), if any, is/are disposed of.

……………………………………J.

(VIKRAM NATH)

……………………………………J.

(SATISH CHANDRA SHARMA )

NEW DELHI

JULY 10, 2024