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Altamas Kabir, J.
1. As far back as on 13.1.1995 two
Judges of this Court in the case of Romesh Chander V. Savitri
(1995) 2 SCC 7) had occasion to pose the question as to whether a
marriage which is otherwise dead emotionally and practically should be
continued for name sake. In the 2 instant appeal, we are also faced with
the same question.
2. Marriage between the appellant
and the respondent was performed on 22.5.1992 according to Hindu rites
and customs. On 21.8.1994 the respondent, for whatever reason, left her
matrimonial home and went back to her parents and the couple have been
living separately ever since. Soon thereafter, the parties took recourse
to the law when on 30.12.1994 the appellant sent a notice to the
respondent asking her to return to her matrimonial home. On 20.10.1995
the respondent lodged a complaint against the appellant and his family
members under Section 498-A of the Indian Penal Code alleging demand of
dowry and it is only on 2.2.2003 that they were finally acquitted after
a full trial. The appellant also moved the Court of the Sub- Divisional
Magistrate for issuance of a search warrant consequent upon which the
respondent 3 appeared before the Magistrates' Court and agreed to return
to the appellant but she did not return as agreed.
3. Ultimately, on 28.9.1998 the
appellant filed Matrimonial Case No.383/1998 before the Ninth Additional
District Judge, Indore, (MP), on grounds of cruelty and desertion under
Section 13(1)(1a)(1b) of the Hindu Marriage Act for dissolution of the
marriage. Despite holding that the respondent had proved his case on
grounds of cruelty and desertion, the trial court did not grant a decree
for divorce, but thought it appropriate to pass a decree of judicial
separation instead. On appeal preferred by the respondent against the
decree of judicial separation passed by the trial court and the cross
appeal filed by the appellant seeking dissolution of marriage, the High
Court reversed the judgment and decree of the trial court upon holding
that it was on account of the conduct of the appellant that 4 the
respondent was compelled to leave her matrimonial home. The learned
Single Judge of the High Court also held that he was not satisfied that
the appellant had been treated with cruelty by the
respondent-wife. On such finding the High Court dismissed the appeal
filed by the appellant and his prayer for dissolution of marriage and,
on the other hand, allowed the appeal filed by the respondent-wife and
set aside the judgment and decree of the trial court.
4. The respondent is in appeal
against the said judgment of the High Court.
5. Having regard to the finding of
the High Court that the respondent had not treated the appellant with
cruelty and was, on the other hand, compelled to leave the matrimonial
home on account of the conduct of the appellant, a different approach
was taken on behalf of the appellant at the time of hearing of the
appeal. It was sought to be urged that even if 5 the appellant had been
unable to prove his case of cruelty and desertion as grounds for seeking
dissolution of the marriage, having regard to the irretrievable
breakdown of the marriage, technicalities should not stand in the way of
this Court granting relief to the appellant in exercise of its power
under Article 142 of the Constitution. It was submitted that out of 16
years of marriage, the parties have lived separately for 14 years, most
of which has been spent in acrimonious allegations against each other in
the litigation embarked upon by both the parties. It was submitted that
there was no possibility of retrieval of the marriage and appropriate
orders should be passed to end the agony of both the parties.
6. Since, initially on behalf of the
respondent- wife it was made to appear that she was ready and willing to
go back to the appellant, subject to certain terms and conditions, we 6
explored the possibility of an amicable solution, but such an attempt
ended in failure on account of the rigid stance taken on behalf of the
respondent. On behalf of the wife it was submitted that certain orders
had been passed by the Courts below for payment of alimony by the
appellant to the respondent but that the same had not been complied
with. At this stage it may also be mentioned that a male child (Chetan)
had been born out of the wedlock on 28.2.1993 and we had hoped that the
child would act as a catalyst to an amicable settlement, but even the
existence of the child could not bring about a reconciliation between
the parties.
7. Since despite the attempts at
reconciliation the Gordian Knot could not be untied and clearly the
marriage has broken down irretrievably, it was submitted on behalf of
both the parties that it would perhaps be to the best interest of the
parties to have the 7 marriage tie dissolved with adequate provision by
way of permanent alimony for the respondent.
8. It is in this background that we
have to consider the appellant's prayer to set aside the judgment of the
High Court as also that of the trial court and to grant a decree for
dissolution of the marriage between the appellant and the respondents.
9. The prayer made on behalf of the
appellant and endorsed by the respondent is neither novel nor new. At
the very beginning of this Judgment we had referred to the decision of
this Court in the case of Romesh Chander (supra), where it was held that
when a marriage is dead emotionally and practically and there is no
chance of its being retrieved, the continuance of such a marriage would
amount to cruelty. Accordingly, in exercise of powers under Article 142
of the 8 Constitution of India the marriage between the appellant and
the respondent was directed to stand dissolved, subject to the condition
that the appellant would transfer his house in the name of his wife.
10. The power vested in this Court
under Article 142 of the Constitution was also exercised in - i)
Anjana Kishore vs. Puneet Kishore, (2002) 10 SCC 194; (ii) Swati
Verma vs. Rajan Verma and ors., (2004) 1 SCC 123; and (iii) Durga
Prasanna Tripathy vs. Arundhati Tripathy, (2005) 7 SCC 352. Of the
three aforesaid cases, in the first two cases orders passed were on
Transfer Petitions where ultimately the parties agreed to divorce by
mutual consent under Section 13-B of the Hindu Marriage Act, 1955.
Resorting to the powers reserved to this Court under Article 142,
decrees of divorce were granted to put a quietus to all litigations
pending between the parties on the ground that their marriages had
broken down irretrievably. In the last of 9 the three cases, while
holding that the marriage had broken down irretrievably, this
Court affirmed the decree of divorce passed by the Family Court, but
directed payment of alimony to the extent of Rs.1,50,000.
11. Having dispassionately
considered the materials before us and the fact that out of 16 years of
marriage the appellant and the respondent had been living separately for
14 years, we are also convinced that any further attempt at
reconciliation will be futile and it would be in the interest of both
the parties to sever the matrimonial ties since the marriage has broken
down irretrievably.
12. In the said circumstances,
following the decision of this Court in Romesh Chander's case (supra) we
also are of the view that since the marriage between the parties is dead
for all practical purposes and there is no chance of it being retrieved,
the continuance of such marriage would itself amount to cruelty, and,
accordingly, in exercise of our 10 powers under Article 142 of the
Constitution we direct that the marriage of the appellant and the
respondent shall stand dissolved, subject to the appellant paying to the
respondent a sum of Rupees Two lakhs by way of permanent alimony. In
addition, the appellant shall also pay the costs of this appeal to the
respondent, assessed at Rs.25,000/-. The appeal is disposed of
accordingly.
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