This article is written by Jaanvi Jolly. It attempts to provide a detailed study of the case Shyam Sunder Kohli v. Sushma Kohli 2004 SC. The article deals with the factual matrix and the ratio of the case in detail along with the contentions of the parties and the issues involved. The article discusses the concept of desertion, constructive desertion and irretrievable breakdown of marriage as a ground for divorce. It also briefly discusses the current judicial opinion on the grant of divorce on the ground of irretrievable breakdown of marriage.
The Traditional Hindu law believes in ties that last for seven lives and thus the concept of divorce was absolutely alien. The Hindu Marriage Act 1955 (hereinafter HMA) was the first step towards the unification and modernisation of the personal laws of the populace. The most drastic change was brought in by the introduction of the concept of divorce. In a way, it can be linked to the principles found in Article 21 of the Constitution of India which encapsulates the right to life and human dignity. Every individual has the right to live a fulfilling and happy life, thus in circumstances where in a relationship only sourness and bitterness remain the parties have been given a way out by Section 13 of the HMA which provides for the various grounds to seek divorce. In this case, two grounds have been raised: cruelty and desertion along with a plea of irretrievable breakdown of marriage.
- Name of the case: Shyam Sunder Kohli v. Sushma Kohli @ Satya Devi AIR 2004 SC 5111
- Case no: Appeal (civil) 2004 arising out of S.L.P. (C) Nos.1948-1949 of 2003
- Name of the court: Supreme Court
- Bench: Hon’ble Justice S. N. Variava & Hon’ble Justice H. K. Sema
- Appellant: Shyam Sunder Kohli
- Respondent: Sushma Kohli @ Satya Devi
- Date of judgement: 1/10/2004
A divorce petition was filed on 27th April 1991 by the appellant-husband on the grounds of desertion and cruelty by the respondent-wife. The Additional district judge (trial court) dismissed the petition after considering the evidence as the appellant- was unable to prove either of the grounds. Next, an appeal was filed by the appellant- husband as per Section 28(1) of the HMA before the single judge of the Delhi High Court, the Hon’ble judge rejected the contention on the ground of cruelty however held the ground of desertion to be proved, thus on that ground the appeal was allowed. Subsequently both the parties preferred letters patent appeals which were heard by a division bench of the Delhi High Court. The wife filed the appeal against the divorce granted on the ground of desertion, whereas the husband filed the appeal against the order refusing divorce on the ground of cruelty. The division bench allowed the appeal of the wife and dismissed the appeal by the husband. Finally, the appellant-husband preferred a civil appeal against the judgement of the division bench in the Supreme Court arising out of a special leave petition under Article 136 of the Constitution of India.
Additionally, a criminal complaint had also been filed by the appellant- husband against the wife accusing her of an offence under Section 494 of the Indian Penal Code 1860 (hereinafter IPC) which deals with bigamy. A criminal complaint had also been filed by the respondent- wife against the appellant- husband and his family under Section 406 IPC for the return of her streedhan.
The parties to the case solemnised their marriage in November 1981 and after a mere 6 years they started to live separately i.e in February 1989. The appellant- husband filed a divorce petition under Section 13(1)(ia) which deals with cruelty and Section 13(1)(ib) on the ground of desertion by the wife. However in the appeal before the Supreme Court in view of the concurrent finding of facts by courts below ground of cruelty had not been contented.
- Whether the learned division bench of the high court erred in setting aside the divorce decree on the ground of desertion on the part of the respondent-wife?
- Whether a decree for divorce can be granted on the ground that there has been an irretrievable breakdown of marriage?
Petitioners
The contention of the appellant- husband was that the respondent- wife left the matrimonial home on 28th January 1987. Further, he alleged that the respondent- wife has had an illicit relationship with another person. He also claimed that the marriage between the parties has become emotionally dead and there has been an Irretrievable breakdown of marriage. During the proceedings before the Apex court the husband was unwilling to take back the respondent- on the ground of harassment by the respondent- wife.
Respondent
The contention of the respondent-wife was that she was driven out of the matrimonial home and that she had always been willing to cohabit with the appellant- and also made attempts to reconcile by sending her relatives to the appellant- husband’s house to iron out the differences.
Section 13 of the Hindu Marriage Act,1955
This provision has introduced an option for the parties to seek dissolution of their marriage whether contracted prior to or after the commencement of the HMA 1955, if the grounds mentioned under the section are satisfied. The concept of seeking dissolution of marriage by divorce was not recognised under the traditional Hindu law.
Section 13 (1)(ia) of the Hindu Marriage Act,1955
This provision allows the petitioner to seek dissolution of the marriage on the ground of cruelty. Where the petitioner anytime after solemnization of the marriage has been treated with Cruelty whether physical or mental, it is a valid ground to seek dissolution.
Section 13 (1)(ib) of the Hindu Marriage Act,1955
This provision allows the petitioner to seek dissolution of the marriage where the other spouse has deserted the petitioner, which means withdrawal from the society of the petitioner for a continued period of 2 years without a reasonable cause. It recognises the importance of marital companionship in the successful continuation of matrimony and its absence is made a ground to seek divorce.
Section 28(1) of the Hindu Marriage Act,1955
This section provides the period of limitation to be 90 days for appeals which may be preferred from any decree passed as per the Act.
Section 494 of the Indian Penal Code, 1860
This section deals with the offence of bigamy, it punishes the erring spouse who has contracted a second marriage during the subsistence of the first one where as per the law applicable to the parties the subsequent marriage is declared to be void. In the case of Priya Bala Ghosh v. Suresh Chandra Ghosh (1971) SC, court held the to constitute the offence of bigamy there must be a spouse from first marriage living, both the marriage must be performed as per required ceremonies and the subsequent marriage must be void as per law applicable to the parties.
Article 142 of the Constitution
It provides the Supreme Court with tremendous powers to pass any decree or order in any matter pending before in order to be complete justice in the case. This gives enormous powers to the Apex Court to provide solutions in situations where the legislation might be insufficient or absent.
The Apex court held that the appellant- husband was unable to prove the ground of desertion by the respondent- wife, as the evidence reflected that it was the appellant- husband who had forced the respondent- wife out of the matrimonial house and his claims of making attempts to get her back seemed implausible.
As regards the allegations of bigamy and that the respondent-wife was holding herself out as the wife of one Hari Shankar were not proved. The documents related to alleged Life insurance policy taken by the respondent-wife with Hari Shankar were neither referred to nor relied upon by the appellant and thus were not considered by the court.
The claim of divorce on the ground of irretrievable breakdown was also rejected by the court by reiterating that a marriage shouldn’t be dissolved lightly and the applicability of such a ground is only in extreme and exceptional circumstances. On these grounds the appeal was dismissed.
Issue-wise judgement
Whether the learned division bench of the high court erred in setting aside the divorce decree on the ground of desertion on the part of the respondent-wife?
The Apex Court relied upon the findings of fact recorded by the trial court. The court held that the appellant- husband had not been able to prove the ground of desertion by the respondent- wife. Further, the appellant- husband had himself admitted that he had gone to bring back his wife, the first time after three years of the alleged separation which clearly shows his bleak intention to resume conjugal relations. Further, the court believed the unequivocal claim of the respondent- wife that she has always been and still is ready and willing to return to the matrimonial house.
Desertion means break up in the matrimonial house where the spouses are neither living together nor intend to do so. This might be mutual or by one of the spouses . In the latter case, it may amount to desertion if the following conditions are satisfied. The essential elements of desertion are as follows:-
- The factum of separation- In the present case, the factum of separation stands proven. The parties have been living separately since February 1987.
- Animus Deserendi- This element has not been proved by the appellant- husband rather it was the husband who drove away the respondent- wife from the matrimonial home. Thus it was the appellant- husband who was the deserting party.
- Separation must be without the consent of the other spouse- In this case, the separation was not consensual, the respondent- wife has consistently pleaded that she has been and still is willing to cohabit with the appellant- husband.
- The separation must be without a reasonable cause or excuse on the part of the deserting spouse- Herein the wife was the party who was forced out of the matrimonial home and she was the one who made attempts to resume marital relations by sending her relatives to solve the matter.
- Continuous desertion for a period of two years immediately before the presentation of the petition for divorce, this period commences from the date from which the factum of separation and the intention to separate coexist with no intention to join back- This aspect is satisfied in this case. As far as the husband is concerned, he has admitted that he is no longer interested in living with the respondent- wife.
- The intention to forsake the other spouse, and the matrimonial obligations permanently.
The petitioner has the burden of proving these elements. Desertion is a matter of inference to be drawn from certain facts and circumstances of each case. The act of desertion commences when the fact of separation and animus deserendi (intention to desert) coexist. It is not necessary that they should commence at the same time as de facto separation may have commenced without necessary intention.
Whether a decree for divorce can be granted on the ground that there has been an irretrievable breakdown of marriage?
The appellant- husband also sought divorce on the grounds of irretrievable breakdown of marriage, that the marriage is no longer workable and due to the harassment faced by him by the actions of the respondent- wife he no longer seeks to resume the conjugal relation. The apex court relied upon the judgement of V. Bhagat v. Mrs. D. Bhagat (1993) SC where in the exceptional character of divorce granted on the ground of Irretrievable breakdown was emphasised. The court also referred to the case of Sudhir Singhal v. Neeta Singhal (2000) DHC, wherein it was averred that the respondent- had left the house after collecting all her articles with no intention to return, the court refused to allow the ground of Irretrievable breakdown while at the same time reiterating that the Supreme Court is empowered to grant a divorce on such ground under Article 142 of the constitution only in exceptional cases.
The court stated that it is the institution of marriage that keeps the society knit together and thus the primary object of the society as well as the courts is to make every attempt to protect and preserve the sanctity of the matrimonial bond and thus the ground of Irretrievable breakdown must be applied only in exceptional cases as the last resort and not as a straitjacket formula.
The court observed that divorce on the ground of irretrievable breakdown should not be granted unless every avenue has been explored to see if it actually has reached that fate. In the present case, the respondent- wife has throughout expressed her willingness to restore the conjugal relations and it is the appellant- husband who made false accusations of bigamy against her and forced her out of the house thus the erring party who is the reason for the unworkability of the marriage cannot be allowed to claim that the marriage must be dissolved as being broken irretrievably.
Desertion is not a mere withdrawal from a place rather, it is a withdrawal from a state of things, wherein one of the spouses has ceased to discharge the matrimonial obligations. Desertion was discussed in the case of Bipin Chandra v. Prabhavati (1956) SC, which enumerated the essential conditions to be satisfied by both spouses:
- So far as the deserting spouse is concerned, firstly, the intention is to bring cohabitation to a permanent end that is ‘animus deserendi’ and secondly the factum of separation.
- As regards, the deserted spouse, firstly, the absence of consent, and secondly the absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention to leave.
The act of desertion can be of two forms, actual and virtual or constructive. In the former, it is the spouse who leaves the matrimonial house who is considered the deserting party, while in the latter wherein one spouse by words or conduct compels the other to leave the matrimonial home. The former would be guilty of desertion even though it was the latter who physically separated from the other. Here the person who actually withdraws from the cohabitation is not necessarily the deserting spouse. The court will examine the fact that whether it was the petitioner who made it impossible for the respondent- to continue the marital life, if yes, then in such cases the petitioner cannot complain that the respondent- has persisted without a cause in the desertion.
On the issue of grant of divorce decree on the ground of Irretrievable breakdown of marriage there have been a series of cases reiterating the same principles. In the case of Anil Kumar Jain v. Maya Jain (2009) SC wherein it was a case of divorce by mutual consent and after the terms of the settlement were executed (the wife was transferred the property by the husband) she withdrew the consent. It was observed that the Supreme Court in special circumstances is empowered to pass orders under Article 142 to do complete justice to the parties, observing that the marriage ties have completely broken and there is no chance of reconciliation. Similarly in the recent case of Shilpa Sailesh v. Varun Sreenivasan (2023) SC where the court held that despite the absence of consent of one of the parties if the court believes that the marriage is broken beyond repair and prolongation would only increase agony and bitterness court as a matter of its discretion after considering factors like period of separation, period of cohabitation, nature of allegations may grant divorce on the ground of irretrievable breakdown. The case at hand was a clear and vicious attempt by the appellant- husband to get rid of his wife and he had not come to the court with clean hands as he himself was the party at fault, thus the court rightly refused to grant a divorce on the ground of irretrievable breakdown.
The matters of matrimony are made of delicate human connections that are built on tolerance, faith, trust, love, and affection, with sufficient play for reasonable adjustments with the spouse. Often when two different individuals come together to cohabit under the same roof some arguments and disagreements are bound to happen but when these aggravate due to faults by either party or by bilateral acts, the statute provides the remedy to the individuals to part their ways. In the present case, the court recognised that the express grounds mentioned under Section 13 of HMA relating to cruelty and desertion as alleged by the appellant husband were not sufficiently proved, rather it was the appellant himself who was guilty of deserting the respondent. Holding that the wrongdoer has no right to argue that the marriage must be dissolved as it is broken beyond repair. Dissolution on such claim could only be granted in exceptional cases where continuance of the relationship would only invoke misery and the divorce is warranted in order to do complete justice to both the parties, which is the rationale behind the wide powers granted under Article 142. The Apex court being granted such expansive powers is duty bound to strike a golden mean between the societal interest in the continuance of marital bonds on one hand and the right of individuals to exercise autonomy in decisions of their life on the other.
What do you mean by a letter patent appeal?
The term originated from the latin word ‘litterae patentes’ which means open letters or expose the letters. In the context of Indian courts, it is a remedy by which an appeal can be preferred against the decision of a single judge of the High Court to a different bench of the same court consisting of more than one judge. It is an option available to the appellant- before approaching the Supreme Court. There may be a case where the decision of the single judge might go wrong due to misinterpretation of facts or law; he has the option to file a Letters Patent appeal before moving to the Supreme Court.
Whether the Supreme Court can grant divorce when it is satisfied that the marriage is irretrievably broken ?
In the landmark case of Shilpa Sailesh v. Varun Sreenivasan (2023) SC, a five-judge bench discussed whether the Supreme Court in the exercise of power under Article 142 can grant a decree of divorce when upon the prayer of one of the spouses it is satisfied that there is complete and irretrievable breakdown of marriage, such divorce may be granted despite lack of consent of the other spouse. The court stated that the grant of divorce on such a ground is not a matter of right but a discretion which is to be exercised with great care and caution. The court should be fully convinced and satisfied that the marriage is totally unworkable, emotionally dead, and beyond salvation. Some of the factors to be considered, in such a case the period of cohabitation, nature of allegations made against each other, number and result of settlements,period of separation etc. also observed that the parties cannot directly approach the Supreme Court or High Court under Article 32 and Article 226 respectively by filing a writ petition for grant of divorce decree on such ground.
