UNWORKABLE, EMOTIONALLY DEAD, BEYOND SALVAGE AND BROKEN DOWN IRRETRIEVABLY
Bench of Justice Sanjay Kishan Kaul and Justice MR Shah has ordered dissolution of a marriage of a couple, living separately for 22 years and failing to reconcile their differences.
In R. Srinivas Kumar vs R. Shametha, (CIVIL APPEAL NO. 4696 OF 2013 ) Supreme Court dissolved the marriage under Article 142 of Indian Constitution.The court termed the marriage "unworkable, emotionally dead, beyond salvage and broken down irretrievably".
The husband had filed an appeal in the Supreme court against the 2012 Andhra Pradesh High Court judgement, upholding the family court decision to refuse to pass a decree of divorce against the wife.
The couple had got married in 1993, but later, a difference of opinion emerged, with the husband alleging that cruelty was meted out to him. Till 1997, for a majority of time, the wife stayed at her parental house. The husband filed a divorce petition in 1999 before a family court in Hyderabad.
Under the Hindu marriage Act, 1955, a marriage can be dissolved on the grounds of bigamy, adultery, insanity, cruelty or by mutual consent . It doesn’t recognise “irretrievable breakdown of marriage” as a ground for divorce. Even the Special Marriage Act, 1954, doesn’t recognise it. However, the top court and high courts have been using their inherent powers to dissolve failed marriages.
Article 142, 'Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc', empowers the top court to "...pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it...".
OBSERVATIONS OF THE COURT
~ 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 respondent wife 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 respondent wife has irretrievably broken down.
~ Supreme Court, in a series of judgments, has exercised its inherent powers under Article 142 of the Constitution of India for dissolution of a marriage where the Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted.
~ Protecting the interest of the wife to compensate her by way of a 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.
~ The top court declined to entertain the submission of the wife, who emphasized consent by both the parties before dissolving the marriage and the same is applicable even in exercise of powers under Article 142.
~ If both parties to the marriage agree for separation permanently, in that case, certainly both the parties can move the competent court... Only in a case where one of the parties do not agree and give consent, only then the powers under Article 142 of the Constitution of India are required to be invoked to do substantial justice between the parties, considering the facts and circumstances of the case.
~ The court opined for a lump-sum permanent alimony of Rs. 20 lakh for the wife, and referred the case,"a fit case to exercise the powers under Article 142 of the Constitution and to dissolve the marriage between the parties". It directed the husband to pay the wife within a period of eight weeks.
Comments
Post a Comment