Chander Vs. Savitri  INSC 52 (13 January 1995)
R.M. (J) Sahai, R.M. (J) Majmudar S.B. (J)
1995 AIR 851 1995 SCC (2) 7 JT 1995 (1) 362 1995 SCALE (1)177
Judgment of the Court was delivered by R.M. SAHAI, J.- Should a marriage which
is otherwise dead emotionally and practically be continued for namesake is the
issue for consideration in this appeal.
2.Twenty-five years have elapsed since the
appellant, a sanitary inspector, and the respondent, his wife - a teacher, have
enjoyed the company of each other as husband and wife. Within these 25 years
this is the second round of litigation which routing through the trial court
and the High Court has reached this Court. The earlier one founded on desertion
was decided by this Court against the husband on 23-4-1980. This appeal is based on cruelty. Both the courts below
have found that even though the wife had cast serious aspersions on the
character of the appellant in the written statement filed by her earlier and
alleged that he was in the habit of mixing, with undesirable girls in the
presence of respondent yet since neither any evidence was led nor it was proved
consequently it could not be made basis for claiming divorce on cruelty.
Bhagat v. D. Bhagat (Mrs)1 this Court has explained the concept of cruelty both
mental and physical which could entitle an applicant to claim divorce under
Section 13(1)(i- a) of the Hindu Marriage Act, 1955. In Chanderkala Trivedi (Smt)
v. Dr S.P Trivedi2 it was held that if a marriage was dead and there was no
chance of its being retrieved it was better to bring it to an end. In this case
the marriage is dead both emotionally and practically. Continuance of marital
alliance for namesake is prolonging the agony and affliction. It cannot be
disputed that the husband has not been dutiful and conscious of his
responsibilities either towards his wife or his son. He did not contribute
anything towards upbringing of the child. Yet the marriage being dead, the
continuance of it would be cruelty, specially when the child born out of the
wedlock of the appellant and the respondent as far back as 1968 having now
grown and being in service. The appellant has expressed remorse for his conduct
and is willing to compensate for his past mistakes by transferring the only
house in his name in favour of his wife.
the facts and circumstances of this case we, in exercise of power under Article
142 of the Constitution of India, direct that the marriage between appellant
and the respondent shall stand dissolved subject to the appellant transferring
the house in the name of his wife. The house shall be 1 (1994) 1 SCC 337 2
(1993) 4 SCC 232: 1993 SCC (Cri) 1154 9 transferred within four months from
today. The dissolution shall come into effect from the date the house is
transferred and possession is handed over to the respondent.
appeal is disposed of accordingly. Parties shall bear their own costs.