Summary
The husband's petition for divorce on the grounds of cruelty and mental disorder under Section 13(1)(ia) and (iii) of the Hindu Marriage Act had been dismissed by the Family Court and the High Court. The Supreme Court, finding that the parties had lived apart for over eleven years, that mediation had failed and that neither wished to revive the marriage, dissolved it under Article 142 of the Constitution on the ground of irretrievable breakdown, while granting the wife visitation rights of two days a month with the daughter living with the husband, without deciding custody.
Issues
- Whether the marriage should be dissolved under Article 142 of the Constitution on the ground of irretrievable breakdown despite concurrent dismissals of the husband's petition for divorce.
- Whether the wife, who had never sought custody or visitation of the elder daughter during a decade of separation, should be granted visitation rights.
Provisions considered
- Article 142, Constitution of IndiaInvoked to do complete justice by dissolving a marriage that had completely and irrevocably broken down, where the parties had lived separately for over a decade, multiple mediation attempts had failed and neither party wished to restore the marital bond. (¶¶ 9, 12)
- Section 13(1)(ia) and (iii), Hindu Marriage Act, 1955The husband's petition for divorce on these grounds (cruelty; mental disorder) was dismissed by the Family Court and the High Court, which held that cruelty before March 2014 could not be sustained as the parties cohabited until then. The Supreme Court did not decide the cruelty ground and instead dissolved the marriage under Article 142. (¶¶ 1, 2, 2.3, 4)
Held
- Where the parties have lived separate lives for over a decade, multiple attempts at reconciliation through mediation have failed and neither party shows any inclination to restore the marital bond, the marriage has completely and irrevocably broken down; continuing it would only perpetuate hardship. This is a fit case to exercise jurisdiction under Article 142 to dissolve the marriage on the ground of irretrievable breakdown. (¶¶ 9, 12)
- Although the wife never filed or pursued any petition for custody or visitation, she explained that she was wholly occupied caring for the couple's second child, who had cerebral palsy and later died, while also working as a government servant, and she claimed no alimony. In these peculiar circumstances she ought not to be deprived of access to her daughter: depriving the mother of all contact would harm her emotionally and may adversely affect the child, so visitation was granted in the interest of justice and the welfare of the child. (¶¶ 6, 8, 10)
- The wife is entitled to visitation on two days each month at the husband's residence, on dates mutually fixed; both parties must cooperate in good faith and the husband bears all reasonable expenses of the visits. This arrangement is not a determination of custody, and either party may approach the appropriate forum for adjudication of custody rights. (¶ 11)
Result
Appeal allowed; marriage dissolved under Article 142 of the Constitution on the ground of irretrievable breakdown; respondent granted visitation rights with the daughter on two days each month at the appellant's residence at his expense; pending applications disposed of.