Inherent powers under Article 142 can be invoked to dissolve marriage which has broken down irretrievably

R Srinivas Kumar Vs R Shametha

Supreme Court

04/10/2019

CIVIL APPEAL NO. 4696 OF 2013

About/from the judgment:

The Supreme Court observed that it can exercise its inherent powers under Article 142 of the Constitution of India for dissolution of a marriage where it 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.

 

In this case [R. Srinivas Kumar vs. R. Shametha], the High Court had rejected the plea of a husband who sought a decree of divorce on the ground of irretrievable breakdown of marriage.

 

Assailing this judgment, Senior Advocate Guru Krishna Kumar, appearing for the husband, submitted before the Apex Court that, both the husband and the wife are residing separately since last 22 years and that it is impossible to save the marriage and that there is no chance of marriage surviving and it is broken beyond repair. Therefore, it was urged that, as there is irretrievable breakdown of marriage it is in the fitness of the things to dissolve the marriage even in exercise of the powers under Article 142 of the Constitution of India and to do substantial justice to the parties. On the other hand, this plea was opposed by Advocate Jayant Kumar Mehta, who appeared for the wife, contending 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.

 

While agreeing with the submissions made, the court observed that in various judgments, the Apex court had invoked Article 142 to dissolve the marriage. The bench observed:

 

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.

 

While allowing the appeal, the bench further observed:

 

In the present case, admittedly, the appellant-husband and the respondent-wife 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 respondent-wife 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.

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