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.
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 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.
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. On being contacted, the respondent refused to resume matrimonial life unless the appellant separates from his family and resides in a separate household.
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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 8 justice’ is done to both parties. 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.
9 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? 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.
GAVAI)………………………………………J.
Case Title: PRAKASHCHANDRA JOSHI Vs. KUNTAL PRAKASHCHANDRA JOSHI @ KUNTAL VISANJI SHAH (2024 INSC 55)
Case Number: C.A. No.-000934-000934 / 2024
