Kumar Vs. Dayarani  INSC 450 (6 July 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1957 OF
2006 Neelam Kumar ... Appellant Versus Dayarani ... Respondent
This appeal, by the husband, is filed against the judgment and
order dated September 14, 2005 passed by the Madhya Pradesh High Court (at
Jabalpur) in F.A.O. 462 of 2003. By the judgment coming under appeal, the High
Court set aside the judgment dated August 23, 2003 passed by the 1st Additional
District Judge, Balaghat in HMA Case No.26A/02, allowing the appellant's
petition and granting him the decree of divorce under section 13(1)(ia) of the
Hindu Marriage Act, 1956.
The marriage between the parties took place on December 7, 1986
and they lived together first at Ankleshwar and later at Vadodara. There is no
child from the wedlock.
According to the appellant, barely after 8 or 9 months of the
marriage, the wife (respondent in this appeal) became quite aggressive and
insulting, and started treating him and his family members in a cruel manner.
He tried to make adjustments in the hope that she would correct herself but
finally, when it became impossible to carry along with her, he filed the petition
for dissolution of marriage under section 13(1)(ia) of the Act, on grounds of
cruelty. In the application filed by the appellant, it was stated that his wife
objected to his giving any financial assistance to his family and especially
for the marriage of his sister and she always quarreled with him over the
matter. It was alleged that at the time of his sister's marriage she raised an
alarm that her ornaments were missing and cast suspicion on the groom's mother.
Later on, the alarm turned out to be false, causing huge embarrassment to him
and his family. Such incidents and the respondent's behaviour and conduct
towards the appellant made him the laughing stock in the town. He changed
residence, but that too did not help to salvage his position. The respondent
used to leave for office early and returned very late. When the appellant
remonstrated over her timings she became very angry and even threatened to
implicate him in a dowry case. In those circumstances, the appellant had even
contemplated committing suicide but was held back by friends and relatives. The
appellant also gave certain instances as evidence of her cruelty to him. In
1989, despite his advice to her not to go for attending his brother's marriage
since she was pregnant, she 3 undertook the travel and participated in the
marriage. As a result, she suffered a miscarriage there and, ironically, held
the appellant and his family responsible for it. In 1994, the appellant
sustained some injuries in an accident and had to undergo medical treatment. At
that time she was living in a different town where she was posted in connection
with her service.
intimation given to her she did not come to look after him and to give him
moral support because she did not want to take leave from the work. Again she
did not come to serve his mother and to support her when she was admitted to a
hospital for her eye surgery.
The respondent denied all the allegations made against her by the
appellant. She stated that she did not act cruelly or even disrespectfully
towards the appellant or her family members. Her case was that she was in
service from before her marriage and her marriage with the appellant was on the
clear understanding that she would not be forced to leave the service. But a
short while after their marriage, the appellant changed his mind and demanded
that she should give up working. She was not agreeable to this and this seemed
to hurt his pride. Further, their marriage failed to produce any child. This
became another source for his estrangement from her and he eventually filed the
divorce petition wanting to get rid of her.
Before the trial court the appellant examined himself, his sister
Rashmi and two of his neighbours from Vadodara, as witnesses, in support of his
case. The respondent did not get herself examined nor did she produce 4 any
witness. On the basis of the ex parte evidence adduced before it, the trial
court allowed the appellant's application and granted him the decree of divorce
under section 13(1)(ia) of the Act.
Against the judgment and decree passed by the trial court, the
respondent filed an appeal in the High Court under section 28 of the Act.
Before the High Court, the appellant strongly defended the
judgment of the trial court and pointed out that the respondent had not even
led any evidence in support of her case. The High Court, however, took the
view, and we think quite rightly, that even though the respondent did not
produce any evidence, no decree of divorce could be granted unless the
appellant was able to prove on the basis of the pleadings and the evidences
produced by him that his case was covered by section 13(1)(ia) of the Hindu
Marriage Act. On a consideration of the materials on record, the High Court
found and held that no case of cruelty could be made out against the respondent
and hence, the appellant was not entitled to the decree of dissolution of
marriage on that ground.
The High Court found that the judgment of the trial court was
mainly based on three allegations cited by the appellant as instances of the
respondent's cruelty. First, she put the blame on the appellant and his family
members for the miscarriage suffered by her when she went to attend the
marriage of the appellant's brother, against his advice. The High Court pointed
out that the miscarriage would have caused the greatest distress and 5 pain to
the respondent and instead of sympathizing with her, the appellant chose the
incident to cite as an instance of her cruelty. This showed not the cruelty of
the respondent but the complete insensitivity of the appellant himself. The
High Court also observed that a marriage in the family is an occasion for
rejoicing in India in which the all family members are supposed to participate.
If the respondent had failed to go to attend the marriage of her husband's
brother, then also she would have been liable to be blamed.
The High Court then took up the other allegation that the
respondent did not come to attend and take care of the appellant when he was
undergoing medical treatment in a hospital for the injuries caused in an
accident. The High Court found that this allegation was not part of the
appellant's pleadings and the matter was introduced in course of evidence.
observed that not being stated in the pleadings, the allegation could not be
taken into consideration. Even otherwise, apart from the oral statement made
before the trial court, there was no material to support the allegation. The
appellant did not examine any doctor or produce the medical records in
connection with his treatment. In any event, one single instance, in isolation,
was hardly sufficient for the dissolution of marriage on the ground that the
respondent treated the appellant with cruelty. The court also rejected the
third allegation by the appellant that the respondent did not come to attend
and serve his mother when she was admitted in a hospital for eye surgery. The
Court did not believe the case as neither the mother nor the 6 attending doctor
was examined nor was any documentary evidence produced showing the mother's
Having thus dealt with all the allegations made by the appellant
and having considered the materials on record in some detail, the High Court
found that the appellant had not been able to bring his case under section
13(1)(ia) of the Hindu Marriage Act. It, accordingly, allowed the respondent's
appeal and set aside the judgment and decree passed by the trial court.
On hearing counsel for the parties and on going through the
judgments of the trial court and the High Court, we are in agreement with the
view taken by the High Court and we are satisfied that its findings do not
warrant an interference by this Court in appeal.
Counsel for the appellant then submitted that the appellant's
marriage with the respondent had completely broken down with no hope of revival
and compelling them to live together would be very hard and unjust. He made a
plea for dissolution of marriage on the ground of its irretrievable breakdown.
In support of the submission, learned counsel relied on the judgment of this
Court in Satish Sitole vs. Smt. Ganga, (2008) 7 SCC 734 wherein it was held in
the last paragraph as follows:
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 powers
under 7 Article 142 of the Constitution we direct that the marriage of the
appellant and the respondent shall stand dissolved..."
We are not impressed by this submission at all. There is nothing
to indicate that the respondent has contributed in anyway to the alleged
breakdown of the marriage. If a party to a marriage, by his own conduct brings
the relationship to a point of irretrievable breakdown, he/she cannot be
allowed to seek divorce on the ground of breakdown of the marriage.
would simply mean giving someone the benefits of his/her own misdeeds.
Moreover, in a later decision of this Court in Vishnu Dutt Sharma vs. Manju Sharma
(2009) 6 SCC 379, it has been held that irretrievable breakdown of marriage is
not a ground for divorce as it is not contemplated under section 13 and
granting divorce on this ground alone would amount to adding a clause therein
by a judicial verdict which would amount to legislation by Court. In the
concluding paragraph of this judgment, the Court observed:
we grant divorce on the ground of irretrievable breakdown, then we shall by
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."
On a consideration of the submissions made on behalf of the
parties and the materials on record, we find no merit in this appeal. It is,
accordingly, dismissed but with no order as to costs.
..................................J. (B. SUDERSHAN REDDY)
..................................J. (AFTAB ALAM)
July 6, 2010.