By- Priyanshi Pandey, Intern, Lex Maven
The Hon’ble Supreme Court on 24th January 2024 in the case of Prakashchandra Joshi vs. Kuntal Prakashchandra Joshi (arising out of SLP (C) No. 21139/2021) has held the following: –
ISSUE BEFORE THE HON’BLE COURT
The appellant and respondent was solemnized their marriage on 05/01/2004 as per the rituals of Hindu religion. After the marriage they acquired Canada citizenship and lived happy and normal matrimonial life in Canada. In the year of 2010, the respondent gave a birth to a boy child from the wedlock. During the period of recession in Canada around 2011, the appellant lost his job, the appellant and the respondent came back to India. The respondent left her matrimonial home without giving any reason on 20/02/2011. The appellant tried many times to contact with the respondent, but every time, the appellant received disappointment.
Therefore, the appellant filed a petition in family court under the jurisdiction of Bombay High Court under Section 9 of Hindu Marriage Act, 1955 for restitution of conjugal rights, but from the side of respondent, the appellant did not receive any response. Subsequent to the filling of this petition, the appellant initiated a divorce petition on ground of cruelty. However, the respondent didn’t respond to the service of notice issued by the Family Court. Thus, the petition proceeded ex parte, but the appellant failed to proof cruelty and lack of evidence. Consequently, Court dismissed the petition.
From being dissatisfied with the order of the Family court, the appellant filed an appeal for divorce in the Bombay High court on the ground of irretrievable breakdown of marriage, but High Court dismissed the appeal by holding that, irretrievable breakdown of marriage can’t be a ground of divorce.
OBSEVATION MADE BY THE HON’BLE COURT
Supreme Court exercise his power given under Article 142(1) of Constitution of India. Under Article 142(1), Supreme Court has discretionary power to pass an order or decree to do ‘complete justice’ to a ‘cause or matter’, as a family court, trial court or High court, to avoid question arises on lack of subject- matter jurisdiction. SC held that, under Article 142 (1) of Constitution, SC has discretion to grant the divorce on ground of irretrievable breakdown of marriage.
On the issue of grant divorce on the ground of irretrievable breakdown of marriage, SC stated in the Case of Shilpa Saileshvs. Varubn Sreenivasan that,the grant of divorce on the basis of irretrievable breakdown of marriage is not an absolute right but a discretionary power exercised carefully. The court must be convinced that the marriage is emotionally unworkable. Various factors,as following, are considered to ensure fair and complete justice ;
- The nature of allegation made by the parties;
- The period of time of cohabitations of parties after marriage.
- How many attempts made by the parties to resolve the disputes.
- The period of separation should be above six years.
- Who will take the custody of minor child, if any.
Furthermore, if there are any specific factor, which is necessary to take in consideration, will be taken in the account by the court.
Supreme Court has observed that the respondent haven’t answer any of the summons issued by the Court and the appellant and the respondent were not in the domestic relationship from almost last 13 years, which shows their lack of interest towards continuing their marriage. Hence, SC exercise his power under Article 142(1) of the constitution of India to grant the divorce on the ground of irretrievable breakdown of marriage to the appellant.
