PRAKASHCHANDRA JOSHIversusKUNTAL PRAKASHCHANDRA JOSHI @ KUNTAL VISANJI SHAH

                  [2024] 1 S.C.R. 697 : 2024 INSC 55

                    Prakashchandra Joshi
                             v.
      Kuntal Prakashchandra Joshi @ Kuntal Visanji Shah
                        (Civil Appeal No. 934 of 2024)
                               24 January 2024
           [B.R. Gavai and Prashant Kumar Mishra,* JJ.]


                            Issue for Consideration
       Whether a decree for divorce can be granted for the reason that
       the marriage has irretrievably broken down.

                                   Headnotes
       Marriage – Irretrievable break down – Appellant contended
       that the appellant and the respondent were living apart due
       to matrimonial discord for the last 13 years and as there are
       no prospects for reconciliation, the marriage has irretrievably
       broken down:
       Held: The appellant lost his job in Canada and the family came
       back to India in January, 2011 – The couple last resided together
       in appellant’s mother’s house till 19.02.2011 – After this date, they
       lost contact with each other, and the respondent refused to return
       to the matrimonial home – On being contacted, the respondent
       refused to resume matrimonial life unless the appellant separates
       from his family and resides in a separate household – On account
       of appellant’s inability to accede to this demand of the respondent,
       she never returned to resume the matrimonial life – The respondent
       did not appear in the proceedings u/s. 9 of the Hindu Marriage
       Act, despite receiving summons – Similarly, in the present divorce
       proceedings also the respondent failed to enter appearance despite
       service of notice in the Trial Court, High Court and Supreme Court
       as well – Thus, it is apparent that the respondent does not wish to
       continue the marital chord and is not responding to court summons
       – There is no hesitation in holding that the present is a case of
       irretrievable breakdown of marriage as there is no possibility of the
       couple staying together – For the foregoing reasons, the marriage
       between the parties is dissolved in exercise of powers u/Art. 142(1)
       of the Constitution. [Paras 11, 12, 15, 16]


* Author
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                                 Case Law Cited
            Shilpa Sailesh vs. Varubn Sreenivasan, [2023] 5 SCR
            165 : (2023) SCC online SC 544 – relied on.
            Sukhendu Das vs. Rita Mukherjee, (2017) 9 SCC 632;
            Samar Ghosh vs. Jaya Ghosh, [2007] 4 SCR 428:
            (2007) 4 SCC 511 – referred to.

                                   List of Acts
       Constitution of India.

                                List of Keywords
       Irretrievable break down of marriage; matrimonial discord; Couple
       living separately; non-appearance of party; Dissolution of marriage;
       Decree for divorce; Article 142(1) of Constitution.

                                Case Arising From

       CIVIL APPELLATE JURISDICTION : Civil Appeal No. 934 of 2024.
       From the Judgment and Order dated 24.06.2021 of the High Court
       of Judicature at Bombay in FCA No.162 of 2019.
                           Appearances for Parties
       Dhananjay Bhaskar Ray, Adv. for the Appellant.

                  Judgment / Order of the Supreme Court
                                      Judgment
       Prashant Kumar Mishra, J.
       Leave granted.
2.     The instant appeal is directed against the judgment and order
       impugned dated 24.06.2021 passed by the High Court of Judicature
       at Bombay in Family Court Appeal No. 162 of 2019 whereby the
       High Court, while affirming the order of the Family Court, dismissed
       the appeal seeking dissolution of marriage by a decree of divorce.
3.     The facts in brief are that the marriage between the appellant and
       respondent was solemnized on 05.01.2004 as per the rituals of
       Hindu religion after having spent eight years in courtship. They
       are Indian citizens by birth. However, they acquired citizenship
[2024] 1 S.C.R.                                                          699

        Prakashchandra Joshi v. Kuntal Prakashchandra Joshi
                      @ Kuntal Visanji Shah

     of Canada for financial gain and were living a normal and happy
     matrimonial life in Canada. A male child was born from the wedlock
     on 21.05.2010. In the year 2011, the appellant started experiencing
     medical problems namely, constant back and shoulder pain as well
     as skin related problems, especially during summer due to rag weed
     allergy resulting into sleepless nights and miserable days. During
     the period of recession in Canada, the appellant lost his job and the
     couple along with the minor child returned to India on 29.01.2011. The
     respondent after wilfully staying at her matrimonial home, joined her
     parental house on 20.02.2011. After some time, when the appellant
     asked the respondent to resume cohabitation, the respondent did
     not pay any heed and refused to join the company of the appellant.
     The respondent was interested in returning to Canada for a better
     future. The appellant, however, expressed his unwillingness to shift to
     Canada owing to his health issues. Various attempts were made by
     the family of the parties to resolve the matrimonial discord between
     them but to no avail. The respondent left for Canada with her son.
     Thereafter, the appellant tried to contact the respondent either through
     e-mail or by other modes requesting her to come and cohabit with
     him. It was neither responded to nor complied with.
4.   The appellant was, therefore, constrained to prefer a petition under
     Section 9 of the Hindu Marriage Act for restitution of conjugal rights
     which remained uncontested on behalf of the respondent though the
     respondent was duly served. Desperately, the appellant withdrew the
     petition for restitution of conjugal rights. Since the appellant realized
     that there would be no hope of any restitution, he filed a divorce
     petition on the ground of cruelty and desertion.
5.   The petition proceeded ex parte as, despite due service, the
     respondent remained unrepresented. After considering the pleadings
     and evidence, the learned Family Court dismissed the petition of the
     appellant, inter alia, observing that no case had been made from the
     alleged cruelty caused to the appellant by the respondent.
6.   Being aggrieved with and dissatisfied by the dismissal of the petition
     by the learned Family Court, the appellant moved a Family Court
     Appeal before the High Court. The High Court dismissed the
     appeal by holding that no case has been made out by the appellant
     for seeking a decree of divorce on the ground of either cruelty or
     desertion. Hence, this appeal.
700                                                        [2024] 1 S.C.R.

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7.     Considering the facts and circumstances, a short question arises for
       our consideration as to whether a decree for divorce can be granted
       for the reason that the marriage has irretrievably broken down.
8.     Notice was issued to the sole respondent/wife on 21.01.2022, which
       was duly served upon the respondent. The respondent once again
       did not put in appearance either in-person or through an advocate.
9.     We have heard Mr. Dhananjay Bhaskar Ray, learned counsel
       appearing for the appellant at length and have also perused the
       pleadings.
10. Mr. Dhananjay would submit that the respondent deserted the
    appellant about 13 years ago and she refused to cohabit with the
    appellant. Learned counsel would further submit that the appellant
    and the respondent have been living apart due to matrimonial discord
    for the last 13 years and as there are no prospects for reconciliation,
    the marriage has been irretrievably broken down. The learned
    counsel would argue that the uncontroverted evidence substantially
    establishes the fact that the appellant had been treated with mental
    cruelty by his wife who had left his company despite an objection
    from the appellant. The learned counsel further submitted that the
    conduct of the respondent itself indicates that she is not willing to
    live with the appellant. Learned counsel for the appellant, in support
    of the contentions, placed reliance on the decisions of this Court in
    the case of “Sukhendu Das Vs. Rita Mukherjee1” and “Samar
    Ghosh vs. Jaya Ghosh2”.
11. The record reveals that after appellant’s car accident in November,
    2009 the couple was blessed with a baby boy on 21.05.2010. The
    appellant lost his job owing to the deep recession in Canada and
    eventually the family came back to India in January, 2011. The
    couple last resided together in appellant’s mother’s house at Mumbai
    till 19.02.2011. After this date, they lost contact with each other,
    and the respondent refused to return to the matrimonial home. On
    being contacted, the respondent refused to resume matrimonial
    life unless the appellant separates from his family and resides in a


1    (2017) 9 SCC 632
2    (2007) 4 SCC 511
[2024] 1 S.C.R.                                                           701

         Prakashchandra Joshi v. Kuntal Prakashchandra Joshi
                       @ Kuntal Visanji Shah

     separate household. On account of appellant’s inability to accede
     to this demand of the respondent, she never returned to resume
     the matrimonial life.
12. It is also to be seen that in the proceedings initiated by the appellant
    for restitution of conjugal rights under Section 9 of the Hindu Marriage
    Act, the respondent did not appear despite receiving the summons.
    Similarly, in the present divorce proceedings also the respondent
    failed to enter appearance despite service of notice in the Trial
    Court, High Court and Supreme Court as well. Thus, it is apparent
    that the respondent does not wish to continue the marital chord and
    is not responding to court summons much less the request made
    by the appellant.
13. On the basis of the above factual matrix the present appears to
    be a case of irretrievable breakdown of marriage. In the matter of
    “Shilpa Sailesh vs. Varubn Sreenivasan3”, this Court has held
    that exercise of jurisdiction under Article 142 (1) of the Constitution
    of India is clearly permissible to do ‘complete justice’ to a ‘cause or
    matter’ and this Court can pass an order or decree which a family
    court, trial court or High Court can pass and when such power is
    exercised, the question or issue of lack of subject-matter jurisdiction
    does not arise.
14. On the issue as to grant of divorce on the ground of irretrievable
    breakdown of marriage in exercise of jurisdiction under Article 142
    (1) of the Constitution of India, this Court in Shilpa Sailesh (supra)
    held thus in paras 33 and 42 (iii):
            “33. Having said so, we wish to clearly state that grant
            of divorce on the ground of irretrievable breakdown of
            marriage by this Court is not a matter of right, but a
            discretion which is to be exercised with great care and
            caution, keeping in mind several factors ensuring that
            ‘complete justice’ is done to both parties. It is obvious
            that this Court should be fully convinced and satisfied that
            the marriage is totally unworkable, emotionally dead and
            beyond salvation and, therefore, dissolution of marriage
            is the right solution and the only way forward. That the


3   (2023) SCC online SC 544
702                                                      [2024] 1 S.C.R.

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       marriage has irretrievably broken down is to be factually
       determined and firmly established. For this, several
       factors are to be considered such as the period of time
       the parties had cohabited after marriage; when the parties
       had last cohabited; the nature of allegations made by
       the parties against each other and their family members;
       the orders passed in the legal proceedings from time
       to time, cumulative impact on the personal relationship;
       whether, and how many attempts were made to settle the
       disputes by intervention of the court or through mediation,
       and when the last attempt was made, etc. The period of
       separation should be sufficiently long, and anything above
       six years or more will be a relevant factor. But these facts
       have to be evaluated keeping in view the economic and
       social status of the parties, including their educational
       qualifications, whether the parties have any children,
       their age, educational qualification, and whether the other
       spouse and children are dependent, in which event how and
       in what manner the party seeking divorce intends to take
       care and provide for the spouse or the children. Question
       of custody and welfare of minor children, provision for fair
       and adequate alimony for the wife, and economic rights of
       the children and other pending matters, if any, are relevant
       considerations. We would not like to codify the factors so
       as to curtail exercise of jurisdiction under Article 142(1) of
       the Constitution of India, which is situation specific. Some
       of the factors mentioned can be taken as illustrative, and
       worthy of consideration.
       42 (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
[2024] 1 S.C.R.                                                           703

        Prakashchandra Joshi v. Kuntal Prakashchandra Joshi
                      @ Kuntal Visanji Shah

           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.”
15. Reverting back to the case in hand, to accord satisfaction as to
    whether the present is a fit case for exercise of power under Article
    142 (1) of the Constitution of India to dissolve the marriage on the
    ground of irretrievable breakdown, we see that the parties are residing
    separately since February, 2011 and there have been no contact
    whatsoever between them during this long period of almost 13 years.
    The respondent-wife is not even responding to the summons issued
    by the courts. It seems she is no longer interested in continuing the
    marital relations with the appellant. Therefore, we have no hesitation
    in holding that the present is a case of irretrievable breakdown of
    marriage as there is no possibility of the couple staying together.
16. For the foregoing reasons, the appeal is allowed and we dissolve the
    marriage between the parties on the ground of irretrievable breakdown
    in exercise of powers under Article 142(1) of the Constitution of
    India. Accordingly, the marriage between the parties solemnized
    on 05.01.2004 is dissolved by a decree of divorce. A decree to this
    effect be drawn accordingly.


     Headnotes prepared by: Ankit Gyan     Result of the case: Appeal allowed.