Dr. Nirmal Singh Panesar vs Paramjit Kaur Panesar @ Ajinder Kaur Panesar

2023INSC896 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2045 OF 2011

DR. NIRMAL SINGH PANESAR …APPELLANT(S)

VERSUS

MRS. PARAMJIT KAUR PANESAR @ AJINDER KAUR PANESAR …RESPONDENT(S)

J U D G M E N T

BELA M. TRIVEDI, J.

1. “Should the irretrievable breakdown of marriage

necessarily result in the dissolution of marriage in

exercise of powers under Article 142 of the

Constitution of India, when such is not a ground for

divorce under the Hindu Marriage Act 1955?” - is the Signature Not Verified Digitally signed by SNEHA DAS Date: 2023.10.10 17:57:25 IST Reason: question posed before us.

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2. The appellant is a qualified doctor, and was

Commissioned Air Force Officer. He retired on

30.04.1990 as Wing Commander. The respondent is also a

qualified teacher, who was working in a Central School,

and has retired now. The appellant had filed the Divorce

proceedings on 12.03.1996 before the District Court,

Chandigarh on two grounds, namely ‘cruelty’ and

‘desertion’ as contemplated in Section 13(1)(ia) and

13(1)(ib) respectively of the Hindu Marriage Act 1955

(hereinafter referred to as the said Act).

3. The instant appeal is directed against the judgment

and order dated 18.02.2009 passed by the High Court of

Punjab and Haryana at Chandigarh in LPA No. 195/2001 in

FAO No. 44-M/2000 preferred by the appellant-husband,

whereby the Division Bench of the High Court while

dismissing the said LPA, had confirmed the judgment and

decree dated 21.12.2000 passed by the Single Bench in

the FAO No.44-M of 2000. The said FAO No. 44-M/2000 was

preferred by the respondent-wife, against the judgment

and decree dated 05.02.2000 passed by the District

2 Judge, Chandigarh (hereinafter referred to as the

District Court) in HMA No.63 of 1996, which had vide

the said decree dated 05.02.2000 allowed the HMA filed

by the appellant-husband, and dissolved the marriage

between the parties under Section 13 of the said Act.

4. It is not disputed that the parties had married

as per the Sikh rites on 10.03.1963 at Amritsar. The

marriage was consummated and they were blessed with

three children- two daughters - Harpreet Kaur and

Rupdaman Kaur (both married now), and one son-

Kunwarjit Singh Panesar. As per the case of the

appellant, he was serving in the Indian army and the

respondent was serving as a teacher in Central School

in Amritsar. Till January 1984, the relations between

the parties were normal. The acrimony in their

relationship appears to have developed when the

appellant was posted at Madras in January 1984 and the

respondent did not join him, and preferred to stay

initially with the parents of the appellant and

thereafter with her son. Despite sincere efforts

3 having been made by the parties, the differences and

disputes could not be resolved, which ultimately led

the appellant to file Divorce proceedings in the

District Court.

5. As stated hereinabove, the District Court granted

the decree of divorce, as prayed for by the appellant

however the Single Bench of the High Court reversed

the same and the Division Bench of the High Court

confirmed the judgment and order passed by the Single

Bench vide the impugned order.

6. At the outset, it may be stated that both the

parties are in the late evening of their lives, in as

much as the appellant is aged about 87 years and the

respondent is aged about 82 years. The Court

considering the age of the parties, had expected them

to sit together and explore the possibility of an

amicable settlement, however the same having failed,

the Court had no option but to hear the respective

learned counsels for the parties on merits.

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7. Mr. Vipin Gogia, the learned advocate appearing

for the appellant submitted that the High Court had

committed gross error in reversing the well-reasoned

decree of divorce granted by the District Court, which

had concluded that the respondent had treated the

appellant with cruelty and had deserted the appellant

without any reasonable cause as alleged in the divorce

petition. According to him, the acts of the respondent

in not joining the appellant when he was transferred

to Madras, and thereafter not taking care of the

appellant though he had a heart problem, and

subsequently making complaints to the Air Force

Authorities against the appellant to malign his image,

were the acts of “Cruelty,” entitling the appellant to

a decree of divorce, in view of the decision in case

of Naveen Kohli vs. Neelu Kohli1. He alternatively submitted

that the parties are staying separate since the time

the appellant had filed the Divorce petition in the

District Court, and that the marriage having been

1 (2006) 4 SCC 558

5 irretrievably broken down, the Court should exercise

the powers under Article 142 of the Constitution of

India and grant a decree of divorce. In this regard,

he has heavily relied upon the recent decision of the

Constitution Bench in the case of Shilpa Sailesh vs. Varun

Sreenivasan2.

8. Per contra, the learned advocate Ms. Madhurima

Tatia for the respondent submitted that the respondent

being an aged lady does not want to die with the stigma

of a “Divorcee.” According to her, the respondent had

made all efforts to respect the sacred relationship

between the parties all through out and is still ready

to look after the appellant with the assistance of her

son. Mere long period of separation could not

tantamount to irretrievable break down of the

marriage. She lastly submitted that the appellant

having failed to make out any ground either of cruelty

or desertion, the Court may not interfere with the

2 2023 SCC Online SC 544

6 concurrent findings recorded by the Single Bench and

the Division Bench of the High Court in this regard.

9. We have given anxious thought and consideration

to the submissions made by the learned advocates for

the parties in the light of the evidence on record.

There could not be any disagreement with the

proposition of law canvassed by the learned counsel

for the appellant that the allegations of ‘cruelty’

and ‘desertion’ are legitimate grounds for seeking a

decree of divorce under Section 13(1) of the said Act.

It is well accepted proposition that “cruelty” is a

course or conduct of one party which adversely affects

the other. The “cruelty” may be mental or physical,

intentional, or unintentional. This court in Naveen

Kohli (supra) has summarised the principles of law on

“cruelty” as under: -

“46. The principles of law which have been crystallised by a series of judgments of this Court are recapitulated as under:

In Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan [(1981) 4 SCC 250 : 1981 SCC (Cri) 829] this Court stated that the concept of

7 legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty.

47. In Shobha Rani v. Madhukar Reddi [(1988) 1 SCC 105 : 1988 SCC (Cri) 60] this Court had an occasion to examine the concept of cruelty.

The word “cruelty” has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i-a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be

8 cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.

48. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions and their culture and human values to which they attach importance. Each case has to be decided on its own merits.

49. ……..

50. …….

51. …….

52. This Court in Savitri Pandey v. Prem Chandra Pandey [(2002) 2 SCC 73] stated that mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party.

9 Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.”

10. The crux of the various decisions of this Court

on the interpretation of the word “cruelty” is that it

has to be construed and interpreted considering the

type of life the parties are accustomed to; or their

economic and social conditions and their culture and

human values to which they attach importance. Each

case has to be decided on its own merits.

11. Similarly, the law is also well settled as to what

could be said to be “Desertion” in the divorce

proceedings filed under Section 13 of the said Act.

The expression “Desertion” had come up under the

judicial scrutiny of this Court in BipinChandra

JaiSinghBai Shah vs. Prabhavati 3 , which was again

3 AIR 1957 SC 176 10

considered in case of Lachman UtamChand Kirpalani vs.

Meena alias Mota4. This Court collating the

observations made in the earlier decisions, stated its

view as under: -

“Collating the aforesaid observations, the view of this Court may be stated thus: Heavy burden lies upon a petitioner who seeks divorce on the ground of desertion to prove four essential conditions, namely, (1) the factum of separation; (2) animus deserendi; (3) absence of his or her consent; and (4) absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home.”

12. Recently, in Debananda Tamuli vs. Kakumoni

Kataky5, the Court referring the decision in case of

Lachman UtamChand Kirpalani (supra) observed as

under: -

“7. We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned counsel appearing for the appellant relied upon the decision of this Court in Lachman Utamchand Kirpalani [Lachman Utamchand Kirpalani v. Meena, (1964)

4 AIR 1964 SC 40 5 (2022) 5 SCC 459 11 4 SCR 331 : AIR 1964 SC 40] which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. The view taken by this Court has been incorporated in the Explanation added to sub-

section (1) of Section 13 by Act 68 of 1976. The said Explanation reads thus:

“13. Divorce. — (1) * * *

Explanation. —In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.””

“8. The reasons for a dispute between husband and wife are always very complex. Every matrimonial dispute is different from another. Whether a case of desertion is established or

12 not will depend on the peculiar facts of each case. It is a matter of drawing an inference based on the facts brought on record by way of evidence.”

13. Coming back to the facts of the present case, the

Single Bench of the High Court holding that the

appellant-petitioner had failed to prove the grounds

of “cruelty” and “desertion” as contemplated in

Section 13(1) of the said Act, had reversed the decree

of divorce passed by the Trial Court. The Division

Bench vide the impugned order confirmed the order

passed by the Single Bench and observed by holding as

under: -

“16. Coming now to the facts of the present case, it is undisputed that the wife continued to live with the husband without any grievance for 21 years and gave birth to three children. She looked after the children. One daughter was married in the year 1984 before separation. The grievance put-forward by the husband for the first time was that the wife did not join him when he was transferred to Madras. The parties were settled at Amritsar and lived there for 21 years where children and parents of the appellant were also living. Case of the wife is that the husband got himself transferred of his own volition. At this stage of life when there were three grown up children 13 and the wife had been living with the husband for 21 years, if unilateral decision was taken by the husband and the wife expressed her opposition, could it be held that the wife deserted the husband or treated him with cruelty. We have already referred to the settled principles on the subject. If the wife did not agree to have herself transferred to Madras, in the given situation, it could not be held that the wife wanted to bring cohabitation permanently to an end without reasonable cause. This did not show any animus deserendi nor it could be held that the wife was cruel to the husband. Taking an overall view of the matter, it cannot be held that the view taken by the learned Single Judge is not a possible view so as to call for interference in an appeal under Letters Patent. The fact remains that the wife continued to look after the children and arrange their marriages. There is nothing to show that the husband made any effort to join the wife, who was living in the matrimonial home or to look after any of the children. The burden of proof is on the appellant to prove desertion and cruelty.”

“17. Learned counsel for the appellant refers to Exh.A-8, which is a letter addressed to the wife, in response to her representation for maintenance. The contents of the letter are as under: -

"2. lt is informed that we have tried our best to help you both to reconcile in the long-term interest of the welfare of the family and children. Accordingly, it is learnt that Wg Cdr. N.S. Panesar, in good faith and on our counsel signed for

14 reconciliation. But it seems that you are not ready to reconcile even in the interest of children. Under the circumstances, there is no other alternative for this HQ except to advice you to redress your grievance, if any, in the Court of law. However, on moral and humanitarian grounds we have counselled your husband to continue remitting Rs.800/- p.m. till the matter is settled to mutual satisfaction."

He also refers to Exh.A-17, which is letter written by the son of the appellant, asking the appellant to send money to the Court.”

“18. Next contention raised is that the jewellery should not be given to the wife. Learned counsel for the appellant suggested that a grand-daughter of the appellant should visit the appellant, in which case, the appellant will have no objection to the jewellery being given to the grand daughter. Learned counsel for the wife states that the grand-daughters will visit the appellant as often as possible and also depending on desire and attitude of the appellant but not as a condition for finding of learned Single Judge to be upheld. Finding of learned Single Judge in this regard is as under: -

" ... This is a fit case to hand over the jewellery which was given to appellant (wife) at the time of marriage and thus, l -direct the Manager, Bank of Baroda, Sector 22,

15 Chandigarh to hand over all the jewellery to the appellant lying in the locker ... "”

14. Having regard to the observations made by the

Single Bench and Division Bench of the High Court, we

do not propose to take any different view. Suffice it

to say that the appellant had failed to prove that the

respondent had treated the appellant with “Cruelty” or

that the respondent had “Deserted” the petitioner as

contemplated in Section 13(1)(ia) and 13(1)(ib)

respectively of the said Act.

15. This brings us to advert to the submission made

by the appellant for granting the decree of divorce on

the ground that the marriage has irretrievably broken

down. There is no dispute that the parties are staying

separate since last many years and all the efforts to

bring them together have failed. Under the

circumstances one may presume that the marriage is

emotionally dead and beyond salvation and that there

is an irretrievable break down of marriage between the

parties. However, the question is, should the

16 irretrievable break down of marriage necessarily

result into a decree of divorce to be granted under

Article 142 of the Constitution of India?

16. Recently, the Constitution Bench of this Court in

the case of Shilpa Shailesh vs. Varun Sreenivasan (supra)

while adumbrating the issue with regard to

irretrievable break down of marriage and passing of

decree of divorce under Article 142 of the

Constitution, observed as under: -

“41. 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 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

17 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. 42-49. ………

50. In view of the aforesaid discussion, we decide this reference by answering the questions framed in the following manner:

(i) The scope and ambit of power and jurisdiction of this Court under

18 Article 142(1) of the Constitution of India.

This question as to the power and jurisdiction of this Court under Article 142(1) of the Constitution of India is answered in terms of paragraphs 8 to 13, inter alia, holding that this Court can depart from the procedure as well as the substantive laws, as long as the decision is exercised based on considerations of fundamental general and specific public policy. While deciding whether to exercise discretion, this Court must consider the substantive provisions as enacted and not ignore the same, albeit this Court acts as a problem solver by balancing out equities between the conflicting claims. This power is to be exercised in a ‘cause or matter’.

(ii) In view of, and depending upon the findings of this bench on the first question, whether this Court, while hearing a transfer petition, or in any other proceedings, can exercise power under Article 142(1) of the Constitution, in view of the settlement between the parties, and grant a decree of divorce by mutual consent dispensing with the period and the procedure prescribed under Section 13-B of the Hindu Marriage Act, and also quash and dispose of other/connected proceedings under the Domestic Violence Act, Section 125 of the Cr.

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P.C., or criminal prosecution primarily under Section 498-A and other provisions of the I.P.C. If the answer to this question is in the affirmative, in which cases and under what circumstances should this Court exercise jurisdiction under Article 142 of the Constitution of India is an ancillary issue to be decided.

In view of our findings on the first question, this question has to be answered in the affirmative, inter alia, holding that this Court, in view of settlement between the parties, has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. This power should be exercised with care and caution, keeping in mind the factors stated in Amardeep Singh (supra) and Amit Kumar (supra). This Court can also, in exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings and orders, including criminal proceedings.

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?

20 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 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.”

17. In view of the afore-stated decision of the

Constitution Bench, there remains no shadow of doubt

that this Court can depart from the procedure as well

as the substantive laws, and exercise its discretion

under Article 142 for dissolving the marriage between

the parties by balancing out the equities between the

conflicting claims of the parties, however, such

discretion should be exercised with great care and

21 caution. It has also laid down that this discretionary

power could be exercised for dissolving the marriage

on the ground of its irretrievable break down to do

“complete justice,” though one of the spouses opposes

the prayer for dissolution of marriage.

18. However, in our opinion, one should not be

oblivious to the fact that the institution of marriage

occupies an important place and plays an important

role in the society. Despite the increasing trend of

filing the Divorce proceedings in the courts of law,

the institution of marriage is still considered to be

a pious, spiritual, and invaluable emotional life-net

between the husband and the wife in the Indian society.

It is governed not only by the letters of law but by

the social norms as well. So many other relationships

stem from and thrive on the matrimonial relationships

in the society. Therefore, it would not be desirable

to accept the formula of “irretrievable break down of

marriage” as a strait-jacket formula for the grant of

22 relief of divorce under Article 142 of the Constitution

of India.

19. So far as the facts of the present case are

concerned, as stated earlier, the appellant-husband is

aged about 89 years and respondent-wife is aged about

82 years. The respondent all throughout her life has

maintained the sacred relationship since 1963 and has

taken care of her three children all these years,

despite the fact that the appellant-husband had

exhibited total hostility towards them. The respondent

is still ready and willing to take care of her husband

and does not wish to leave him alone at this stage of

life. She has also expressed her sentiments that she

does not want to die with the stigma of being a

“divorcee” woman. In contemporary society, it may not

constitute to be stigma but here we are concerned with

the respondent’s own sentiment. Under the

circumstances, considering and respecting the

sentiments of the respondent wife, the Court is of the

opinion that exercising the discretion in favour of

23 the appellant under Article 142 by dissolving the

marriage between parties on the ground that the

marriage has irretrievably broken down, would not be

doing “complete justice” to the parties, would rather

be doing injustice to the respondent. In that view of

the matter, we are not inclined to accept the

submission of the appellant to dissolve the marriage

on the ground of irretrievable break down of marriage.

20. The appeal therefore is dismissed.

.………………………………………….J. [ANIRUDDHA BOSE]

………………………………………. J.

[BELA M. TRIVEDI]

NEW DELHI;

October 10th, 2023

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