Vishnu Dutt Sharma Vs.
Manju Sharma  INSC 450 (27 February 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1330 OF 2009 (Arising
out of SLP(C) No.13166 of 2007) Vishnu Dutt Sharma ..Appellant versus Manju
Sharma ..Respondent ORDER Leave granted.
This Appeal has been
filed against the judgment and order dated 07th May, 2007 passed by the High
Court of Delhi in FAO No.302 of 1996 whereby the High Court has dismissed the
appeal filed by the husband-appellant.
Facts giving rise to
this appeal are:
The marriage took
place between the appellant and the respondent on 26.02.1993 and a female child
was born on 6.12.1993. In the petition filed by the appellant, it was alleged
that soon after the marriage the respondent was behaving in a cruel manner
derogatory to the appellant and the family members; that the respondent avoided
staying in the matrimonial home and never remained there for more than 25 days
together; and that after leaving the matrimonial -2- home on 19.5.1993 while
she was pregnant with the child, the respondent never returned to live with the
appellant. It was also alleged that the father of the respondent is a retired
Sub-Inspector of the Delhi Police and brother is a Constable and both used to
extend threats to the appellant and his family members that they would be
implicated in false cases.
Respondent in her
written statement stated that on 14.09.1994, the appellant and his family
members gave her a severe beating which led to her being medically examined by
the doctors at Ram Manohar Lohia Hospital. A copy of the extract of the MLC
register on that date was enclosed to the written statement. It was also stated
that the appellant and his mother had taken the jewellery of the respondent and
given it to the wife of the appellant's brother and on asking, respondent was
again assaulted and sought to be burnt alive by the family members of the
The trial Court after
examining the evidence came to the conclusion that no case of cruelty had been
made out as alleged by the appellant. The Trial Court held that considering that
the respondent had been turned out of the matrimonial house and had been given
beatings for which she -3- was medically examined,it was the respondent who was
treated cruelly by the appellant.
Being aggrieved, the
appellant preferred an appeal in the High Court.
The High Court, by
the impugned order, while dismissing the appeal filed by the appellant-husband,
observed in paras 13 & 17 as under:
respondent has categorically stated in her examination-in-chief that the
appellant and her in laws beat her mercilessly on 14.09.1994 as a result of
which she was medically examined at the Ram Manohar Lohia Hospital, New Delhi
on 15.09.1994. She has also withstood the cross- examination on this aspect. On
a reading of the entire evidence, it is not possible to conclude that the
appellant has been able to establish that the respondent treated him with
17. In the instant
case, the respondent wife has both before the trial Court and this Court been
able to demonstrate that far from treating the appellant with cruelty, she in
fact suffered cruelty at the hands of the appellant. To grant divorce to the
appellant despite this only on the ground of irretrievable breakdown would not,
in the view of this Court, be doing justice to the respondent."
We are not inclined
to interfere with the finding of fact of both the courts below that it was the
appellant who treated the respondent with cruelty, rather than the other way
-4- Learned counsel
appearing for the appellant has streneously argued that the marriage between
the parties be dissolved on the ground of irretrievable breakdown.
In this connection it
may be noted that in Section 13 of the Hindu Marriage Act, 1955 (for short 'the
Act') there are several grounds for granting divorce e.g. cruelty, adultery,
desertion etc. but no such ground of irretrievable breakdown of the marriage
has been mentioned for granting divorce. Section 13 of the Act reads as under:
Any marriage solemnized, 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-- (i) has, after the
solemnization of the marriage, had voluntary sexual intercourse with any person
other than his or her spouse; or (i-a) has, after the solemnization of the
marriage, treated the petitioner with cruelty; or (i-b) has deserted the
petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petition; or (ii)has ceased to be a Hindu by
conversion to another religion;
or (iii) has been
incurably of unsound mind, or has been suffering continuously or intermittently
from mental disorder of such a kind and to such an extent that the petitioner
cannot reasonably be expected to live with the respondent.
-5- xx xx xx xx xx xx
(iv)has been suffering from a virulent and incurable form of leprosy; or (v)has
been suffering from venereal disease in a communicable form; or (vi)has
renounced the world by entering any religious order; or (vii)has not been heard
of as being alive for a period of seven years or more by those persons who
would naturally have heard of it, had that party been alive."
On a bare reading of
Section 13 of the Act, reproduced above, it is crystal clear that no such
ground of irretrievable breakdown of the marriage is provided by the
legislature for granting a decree of divorce. This Court cannot add such a ground
to Section 13 of the Act as that would be amending the Act, which is a function
of the legislature.
Learned counsel for
the appellant has stated that this Court in some cases has dissolved a marriage
on the ground of irretrievable breakdown. In our opinion, those cases have not
taken into consideration the legal position which we have mentioned above, and
hence they are not precedents. A mere direction of the Court without
considering the legal position is not a precedent. If we grant divorce on the
ground of irretrievable breakdown, then we shall by -6- judicial verdict be
adding a clause to Section 13 of the Act to the effect that irretrievable
breakdown of the marriage is also a ground for divorce. In our opinion, this
can only be done by the legislature and not by the Court. It is for the
Parliament to enact or amend the law and not for the Courts. Hence, we do not
find force in the submission of the learned counsel for the appellant.
Had both parties been
willing we could, of course, have granted a divorce by mutual consent as
contemplated by Section 13B of the Act, but in this case the respondent is not
willing to agree to a divorce.
For the aforesaid
reasons, this appeal is dismissed. No order as to costs.
FEBRUARY 27, 2009.