MUNISH KAKKAR VERSUS NIDHI KAKKAR

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 9318 of 2014, Judgment Date: Dec 17, 2019

• 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.

• 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 that the ground of irretrievable breakdown of marriage, as yet,has not been inserted in the divorce law, despite a debate on this aspectby the Law Commission in two reports.We, however, find that there are various judicial pronouncementswhere this Court, in exercise of its powers under Article 142 of the8Constitution of India, has granted divorce on the ground of irretrievablebreakdown of marriage; not only in cases where parties ultimately, beforethis Court, have agreed to do so but even otherwise. There is, thus,recognition of the futility of a completely failed marriage being continuedonly on paper.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 eachother. 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.

• 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.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 a ppropriate to take recourse to this provision in the present case.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.

MUNISH KAKKAR VERSUS NIDHI KAKKAR