MUNISH KAKKAR versus NIDHI KAKKAR

Citation: [2019] 15 S.C.R. 169 · Decided: 17-12-2019 · Supreme Court of India · Bench: SANJAY KISHAN KAUL, K.M. JOSEPH

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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169
MUNISH KAKKAR
v.
NIDHI KAKKAR
(Civil Appeal No. 9318 of 2014)
DECEMBER 17, 2019
[SANJAY KISHAN KAUL AND K.M. JOSEPH, JJ.]
Hindu Marriage Act, 1955:
s. 13(1)(ia)  – Petition seeking divorce  –  By husband  –
Trial Court passed decree of divorce  –  High Court set aside the
decree  –  Appeal to Supreme Court  –  Held: The High Court has
brushed aside the allegations as wear and tear of marriage  – But
the relationship between the parties has deteriorated to such an
extent that continuity of marriage is fruitless  –  Though the ground
of ‘irretrievable breakdown of marriage’ has not been inserted as a
ground for divorce under the Act, in exercise of jurisdiction u/Art.
142 of the Constitution, in order to put a quiet us to the dispute,
decree of divorce is granted  –  Constitution of India  –  Art. 142.
Allowing the appeal, the Court
HELD: 1. The High Court appears to have brushed aside
the allegations of extra marital affairs as also of a child out of the
wedlock as part of the wear and tear of marriage and as “inflamed
passions.”  However, the fact remains that the the relationship
between the parties 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.  Matrimonial
relationships require adjustments from both sides, and a
willingness to stay together. The mere say of such willingness
would not suffice. [Para 13][174-B-D]
2. 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,
 [2019] 15 S.C.R. 169
169
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170
SUPREME COURT REPORTS
[2019] 15 S.C.R.
despite a debate on this aspect by the Law Commission in two
reports. 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.
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. [Paras 14, 19 and
21][174-E; 175-G; 176-C]
3. Not only is the continuity of the marriage in the present
case is fruitless, but it is causing further emotional trauma and
disturbance to both the parties. This is even reflected in the
manner of responses of the parties in the Court. The sooner this
comes to an end, the better it would be, for both the parties.
[Para 20][175-G; 176-A]
4. An end to this marriage would permit the parties to go
their own way in life after having spent two decades battling each
other, and there can always be hope, even at this age, for a better
life, if not together, separately. Thus, exercising jurisdiction under
Article 142 of the Constitution of India, a decree of divorce is
granted and the marriage inter se the parties is dissolved forthwith.
[Paras 22 and 23][176-D-E]
7. The maintenance of Rs.7,500 per month should be
continued to be paid by the appellant to the respondent, and it is
open for the parties to move appropriate proceedings for either
enhancement of this maintenance or reduction and cessation
thereof. We only hope that this aspect can also be reconciled
between the parties once a decree of divorce is granted.
[Para 24][176-F-G]
R. Srinivas Kumar v. R. Shametha (2019) 9 SCC 409 –
relied on.
Case Law Reference
(2019) 9 SCC 409
  relied on.
Para 19
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171
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9318
of 2014.
From the Judgment and Order  dated 10.02.2011 of the High Court
of  Punjab & Haryana at Chandigarh in FAO No. 90-M of 2010(O&M)
 Manoj Swarup, Sr. Adv., Santosh Mishra, Neelmani Pant, Mukul
Kumar, Advs. for the Appellant.
Respondent-in-person.
The Judgment of the Court was delivered by
SANJAY KISHAN KAUL, J.
1. Marriages are said to be made in heaven. They are broken on
earth. We are faced with a scenario where for the better part of almost
two decades, the parties before us, who are husband and wife, have
been engaged in multifarious litigation, including a divorce proceeding,
which forms subject matter of the appeal before us.
2. The marriage between the parties was solemnize

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