ASSIGNMENT

We may initially refer to two judicial pronouncements in R. Srinivas Kumar v. R. Shamatha

and Munish Kakkar v. Nidhi Kakkar where it has been clearly opined that there is no
necessity of consent by both the parties for exercise of powers under Article 142 of the
Constitution of India to dissolve the marriage on the ground of irretrievable breakdown of
marriage. 12. In R. Srinivas Kumar, the parties had been living apart for 22 years and all
endeavours to save the marriage had failed. We may note that in Hitesh Bhatnagar v. Deepa
Bhatnagar, it was opined by this Court that courts can dissolve a marriage is irretrievably
broken down only when it is impossible to save the marriage, all efforts have been made in
that regard, the Court is convinced beyond any doubt that there is actually no chance of 2
(2019) 9 SCC 409. 3 (2020) 14 SCC 657. 4 Supra 5 (2011) 5 SCC 234. the marriage survives,
and it is broken beyond repair. It could be useful to reproduce the observations made in para
5.2 to para 8 as under: “5.2. In Naveen Kohli [Naveen Kohli v. Neelu Kohli, (2006) 4 SCC
558] , a three-Judge Bench of this Court has observed as under :“74. … Once the marriage
has broken down beyond repair, it would be unrealistic for the law not to take notice of that
fact, and it would be harmful to society and injurious to the interests of the parties. Where
there has been a long period of continuous separation, it may fairly be surmised that the
matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a
legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of
marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
85. Undoubtedly, it is the obligation of the court and all concerned that the marriage status
should, as far as possible, as long as possible and whenever possible, be maintained, but
when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties
tied forever to a marriage which in fact has ceased to exist. …86. In view of the fact that the
parties have been living separately for more than 10 years and a very large number of
aforementioned criminal and civil proceedings have been initiated by the respondent against
the appellant and some proceedings have been initiated by the appellant against the
respondent, the matrimonial bond between the parties is beyond repair. A marriage between
the parties is only in name. The marriage has been wrecked beyond the hope of salvage,
public interest and interest of all concerned lies in the recognition of the fact and to declare
defunct de jure what is already defunct de facto.” (emphasis supplied) A similar view has
been expressed in Samar Ghosh [Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511]. 6. In the
similar set of facts and circumstances of the case, this Court in Sukhendu Das [Sukhendu Das
v. Rita Mukherjee, (2017) 9 SCC 632 : (2017) 4 SCC (Civ) 714] has directed to dissolve the
marriage on the ground of irretrievable breakdown of marriage, in exercise of powers under
Article 142 of the Constitution of India.

1. In which of the following cases the Hon’ble court has directed to dissolve the
marriage on the ground of irretrievable breakdown of marriage ?
A. Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558
 B. Sukhendu Das v. Rita Mukherjee, (2017) 9 SCC 632 : (2017) 4 SCC (Civ) 714
C. Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511
D. Parveen Mehta v. Inderjit Mehta (2002) 5 SCC 706.

CORRECT OPTION - C

Explanation - The ground often taken to oppose such a decree of divorce, apart from the
absence of a legislative mandate, is that the very institution of marriage is distinctly
understood in different countries. Under the Hindu Law, it is sacramental in character and is
supposed to be an eternal union of two people – society at large does not accept divorce,
given the heightened importance of marriage as a social institution in India.

Available at : https://indianlawwatch.com/living-together-is-not-a-compulsory-exercise-sc/

2. There is no necessity of consent by both the parties for exercise of powers under
Article 142 of the Constitution of India is given by which case ?

A. Munish Kakkar v. Nidhi Kakkar, (2020) 14 scc 657

B. Sukhendu Das v. Rita Mukherjee, (2017) 9 SCC 632 : (2017) 4 SCC (Civ) 714
C. Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511
D. Parveen Mehta v. Inderjit Mehta (2002) 5 SCC 706.

CORRECT OPTION - A

Explanation - Insofar as the aspect of irretrievable breakdown of the marriage is concerned,

it was held that since that did not form part of statutory law in India, that could not be treated
as a ground.

Available at :

https://www.tclindia.in/supreme-court-can-dissolve-marriage-on-grounds-of-irretrievable-bre
akdown-of-marriage/

3. Which of the following statements is true ?

A. Once the marriage has broken down beyond repair, it would not be unrealistic for the
law not to take notice of that fact, and it would be harmful to society and injurious to
the interests of the parties.
B. Once the marriage has broken down beyond repair, it would be unrealistic for the law
not to take notice of that fact, and it would be harmful to society and injurious to the
interests of the parties.
 C. Once the marriage has broken down beyond repair, it would be unrealistic for the law
not to take notice of that fact, and it would not be harmful to society and injurious to
the interests of the parties.
D. Once the marriage has broken down beyond repair, it would not be unrealistic for the
law not to take notice of that fact, and it would not be harmful to society and injurious
to the interests of the parties.

CORRECT OPTION - B

Explanation - Court observed that the consequence of preservation in the law of the
unworkable marriage which has long ceased to be effective is bound to be a source of greater
misery for the parties. Relying heavily on the Apex Court decision in the case of Naveen
Kohli v. Neelu Kohli, the Court observed that the marriage status should, as far as possible, as
long as possible and whenever possible, be maintained, but when the marriage is totally dead,
in that event, nothing is gained by trying to keep the parties tied for ever to a marriage which
in fact has ceased to exist. Once the marriage has broken down beyond repair, it would be
unrealistic for the law not to take notice of that fact, and it would be harmful to society and
injurious to the interest of the parties.

Available at :

https://www.livelaw.in/news-updates/preservation-of-unworkable-marriage-causes-great-mise
ry-marital-bond-should-be-severed-on-irretrievable-breakdown-kerala-high-court-206537

4. The case involves divorce petition filed under which section ?

A. Section 13-B of The Hindu Marriage Act, 1955

B. Section 15 of The Hindu Marriage Act, 1955
C. Section 13 (1) (i-a) of The Hindu Marriage Act, 1955
D. Section 13 (1) (i-b) of The Hindu Marriage Act, 1955

CORRECT OPTION - C

Explanation - Section 13: Divorce

(1) Any marriage solemnised, whether before or after the commencement of this Act, may,
on a petition presented by either the husband or the wife, be dissolved by a decree of
divorce on the ground that the other party—

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty
5. In which case it was opined by this Court that courts can dissolve a marriage that is
irretrievably broken down only when it is impossible to save the marriage ?

A. Munish Kakkar v. Nidhi Kakkar, (2020) 14 scc 657

B. Sukhendu Das v. Rita Mukherjee, (2017) 9 SCC 632 : (2017) 4 SCC (Civ) 714
C. Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511
D. Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234

CORRECT OPTION - D

Explanation - In Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, held that the
court is bound to pass a decree of divorce declaring the marriage of the parties before it to be
dissolved with effect from the date of the decree if following conditions are met –

1. A second motion of both the parties is made not before six months from the date of filing
of the petition as required under sub section (1) and not later than 18 months.

2. After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that
the averments in the petition are true; and

3. The petition is not withdrawn by either party at any time before passing of the decree.

Available at : https://samarthagrawalbooks.com/2021/08/11/divorce-by-mutual-consent/

6. The court has exercised its powers under which article of the Indian Constitution ?

A. Article 142
B. Article 134
C. Article 144
D. Article 114

CORRECT OPTION - A

Explanation - (1) The Supreme Court in the exercise of its jurisdiction may pass such decree
or make such order as is necessary for doing complete justice in any cause or matter pending
before it, and any decree so passed order so made shall be enforceable throughout the
territory of India in such manner as may be prescribed by or under any law made by
Parliament and, until provision in that behalf is so made, in such manner as the President may
by order prescribe.

(2) Subject to the provisions of any law made in this behalf by Parliament the Supreme Court
shall, as respects the whole of the territory of India, have all and every power to make any
order for the purpose of securing the attendance of any person, the discovery or production of
any documents, or the investigation or punishment of any contempt of itself.
Available at :
https://www.constitutionofindia.net/constitution_of_india/the_union/articles/Article%20142