The Supreme Court in one significient observation has held that consent of parties is not required in dissolution of marriage on the ground of irretrievable breakdown under Article 142 of the Constitution.

The Division Bench comprising of Justice KM Joseph and Justice Hrishikesh Roy in an appeal filed assailing the High Court order reversing the decree of dissolution of the marriage between the appellant and the respondent under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 noted that Article 142 of the Constitution undoubtedly clothes the Court with a reservoir of power to pass orders as would reach complete justice to the parties.

The appellant accused his wife of cruelty and Family Court after considering facts and circumstances of the case, granted the Divorce Decree.

Later, the respondent before the Madras High Court under Section 19 of the Family Courts Act, 1984 filed an appeal in 2004 seeking restitution of conjugal rights under Section 9 of the 3 Hindu Marriage Act. As per appellant, since the period for filing an appeal by the respondent had expired, he re-married in 2004. The said appeal is still pending, however, Notice had been served to the appellant in that regard.

Learned Counsel for the Appellant submitted that the High Court has clearly erred in reversing the judgment of the Family Court. He contended that the case is of matrimonial cruelty practised by the respondent. 22 years have passed away since their separation, and after this continues separation, the marriage as of today is only a legal fiction. It is a tie beyond repair, the entire substratum having evaporated and the sanctity of the marriage is lost. It was thus averred that the High Corut judgement should be reversed.

The other prime contention was that the appeal filed by the respondent under Section 19 was clearly beyond time. It was pointed out that when the High Court had rejected the contention that the period of 90 days is available to appeal the decree, it thus erred in finding that the appeal was filed within time on the wings of the provisions of Section 12 of the Limitation Act. Contending that the finding iis in the teeth of Section 29 (3) of the Limitation Act, he pointed out further that Section 19 of the Family Courts Act is a code in itself and it is evident from Section 20 which declares that Section 20 will have effect notwithstanding anything inconsistent with any other law.

He also contended that in a case which falls under the Code 7 of Civil Procedure, it is mandatory that an appeal should be accompanied by a certified copy but when Section 19(1) is properly appreciated, this requirement must be treated as having been taken away.

"most pertinently that Section 19 (1) contemplates that the provisions of the Code of Civil Procedure will not stand in the way of the overwhelming operation of Section 19 of the Family Courts Act."

"the provisions of the Family Courts Act will have effect notwithstanding anything which is contrary to any other law. Thus, the period of 30 days in Section 19 must be adhered to by the prospective appellant. Hence, the appellant is not entitled to exclude any period with the aid of the Limitation Act."

Reliance was placed on Smt. Lata Kamat Vs. Vilas, 1989 Latest Caselaw 106 SC, and it was submitted that having regard to the pronounced differences in the provisions of the Family Courts Act, in particular, Sections 19 and 20, the word ‘proceeding’ in Section 29(3) would embrace an appeal which is carried under Section 19. He contended that under Section 15 of the Hindu Marriage Act, the appeal must be presented in time. The word “presented” cannot be allowed to be interpreted in a pedantic manner and it should not be understood as the mere pushing of an appeal into the files of the Court.

"an appeal will be treated as “presented” within the meaning of Section 15 only when it is not only filed but further moved and brought up before the Court on the judicial side."

Supreme Court Observation

Whether the Limitation Act would apply to an appeal under the matrimonial laws?

The Court after carefully exmaining the appellant's contention and analysing relevant proviasions, noted at the outset that that there is no period of limitation, and that the Limitation Act did not apply to a suit for divorce under the Indian Divorce Act, 1869.

The Court remarked that the issue is no res integra and High Courts as well as Supreme Court has previously settled the question. 

"The Legislature wished to extend the protection from the Limitation Act, as it were, in regard to the word ‘proceedings’ in matrimonial matters to persons other than those who were covered by the provisions of section 29(3) in the Limitation Act, 1908. Protection under Section 29(3) of the 1908 Act was available to those who are governed by the Indian Divorce Act. The rationale appears to be that by the very nature, matrimonial matters like Restitution of Conjugal Rights, Divorce, Guardianship, are matters for which it may not be appropriate to fix a period of limitation. It would not be in the interest of justice qua the parties and, therefore, not in the interest of society. It is this principle which was extended to cases, as for instance, to proceedings under the Special Marriage Act, where parties were governed by the Special Marriage Act, and the Parsi Marriage Act and any other law which related to matrimonial matters. But when it comes to providing for an appeal from the original proceedings, it is an entirely different proposition. It is in the interest of the parties and also the society at large that a period of limitation is fixed within which the verdict of the Court at the bottom of the judicial hierarchy is called in question. There must be certainty and certainty in point of time and it is viewed in this regard, that we must understand the meaning of the word “proceeding” in Section 29(3)."

 The Court thus rejected both the contention in this regard and noted that an appeal cannot be maintained within thirty days even if it is in the absence of a certified copy and non-obstante clause in Section 19 actually has a different purport and scope and it was not meant to sweep away all requirements as existed in law for maintaining an appeal.

"the Family Courts Act is not a standalone Act. It draws sustenance from Acts like the Hindu Marriage Act. This is for the reason that a petition within the meaning, for instance, of the Hindu Marriage Act, after a Family Court is established in India, is to be dealt with by the Family Court, on the grounds as provided under the Hindu Marriage Act. In fact, a mere perusal of Section 7 of the Family Courts Act would show that it speaks about suits and proceedings. Therefore, reading Section 7 of the Family Courts Act with Section 29 of the Limitation Act, also fortifies us in our finding that the word ‘proceedings’ within the meaning of Section 29(3) is to be confined to the original proceedings."

 The Court held that Section 15 intends is to place a time limit on the right of the unsuccessful party to challenge a proceeding by which the marriage has been declared dissolved.

"Section 15 32 uses the word “dissolved”, it has been interpreted to also apply to cases where the marriage is pronounced null and void keeping in view the interests of justice. Thus, the intention of the Legislature was to give effect to the decree for dissolution, if the unsuccessful party does not move the appellate court within time."

Article 142 and irretrievable breakdown of marriage

The Court pointed out that though there have been reports of the Law Commission in this regard recommending changes in the law, as of today the statute does not provide for irretrievable breakdown of marriage as a ground. 

However, the Court has on a number of occasions exercised its power and granted dissolution of marriage on the ground of irretrievable breakdown of marriage based on Article 142, it added.

Dealing with the Learned Counsel for respondent's contention that the present case is not suitable for exercising power under Article 142, the Court went onto cite a slew of judgements which makes it clear that the Court doesn't neccessarily requires consent of both the parties to dissolve a marrigae under the above provision of Constitution. 

-R.SRINIVAS KUMAR vs. R.SHAMETHA, 2019 Latest Caselaw 949 SC

-MUNISH KAKKAR vs. NIDHI KAKKAR, 2019 Latest Caselaw 1276 SC

-Sivasankaran Vs. Santhimeenal, 2021 Latest Caselaw 386 SC

"We make it clear that this decision of ours is not based on our approval of the conduct of the appellant nor is it based on sitting in judgment over the conduct of the respondent. In other words, we find that respondent is blameless in the matter but the facts as they have unfolded and the developments which have taken place, render it unavoidable for us to consider dissolution of marriage as the best course open in the interest of justice."

The appeal was thus allowed.

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Sheetal Joon