Durga Prasanna
Tripathy Vs. Arundhati Tripathy [2005] Insc 430 (23 August 2005)
Ruma
Pal & Dr. Ar. Lakshmanan
(Arising
out of S.L.P. (Civil) No. 9794 OF 2004) Dr. AR. Lakshmanan, J.
Leave
granted.
This
appeal is directed against the judgment dated 23.12.2003 passed by the High
Court of Orissa at Cuttack in Civil Appeal No. 10 of 2001 whereby the High
Court allowing the appeal filed by the respondent-herein/wife under Section
13(1) of the Hindu Marriage Act, 1955 on the ground of cruelty and desertion.
The
marriage between the appellant and the respondent was solemnized on 05.03.1991.
After the marriage, the parties led their conjugal life in the village to which
the appellant belongs and the respondent-wife persuaded the appellant to stay
at Bhubaneswar, the place of her service as well
as her parental place. The husband did not approve such proposal as a result of
which dispute arose between the parties. It was alleged that the
respondent-wife behaved with her husband and her in-laws in a cruel manner. She
deserted the appellant by staying in the house of her father since 22.10.1991.
The appellant and his parents tried their best to bring the respondent-wife to
the marital home but all their efforts were in vain. Thereafter, on 26.05.1996,
for the marriage ceremony of the appellant's younger brother, the mother of the
appellant also went to bring the respondent but the latter was not inclined to
come but misbehaved and insulted her mother-in-law. The appellant's father
expired and for which also the father of the respondent was requested by the
appellant to send the respondent to the house of the appellant since being the
eldest daughter-in-law but then also the respondent did not come. Even after
the death of the appellant's father, the respondent in spite of several
requests by the appellant and his family members did not join the company of
the appellant. The respondent, furthermore, joined the Office of the Civil
Supplies at Puri and in view of this, the respondent and her father always
insisted the appellant to shift to Bhubaneswar. The appellant, in view of this, after about 7 years from
the date of separation took redress of the Court. After leaving the appellant,
the respondent also joined as a Junior Assistant in the office of the Civil
Supply Corporation.
The
respondent-wife denied the allegations made against her. She further stated in
her written statement that due to maltreatment of the appellant's mother and
brother she came back to her parents house. She also stated that she was
willing to live separately from her mother-in-law and brother-in-law. She,
therefore, prayed for dismissal of the proceedings.
Both
parties led oral evidence in support of their respective cases. The appellant
was examined as P.W.1. During his evidence he corroborated the facts made in
the original application for divorce. He has also stated that he is not willing
to stay with the respondent as husband and wife after a long lapse of about 9
years and there is no chance of reunion between the parties. The respondent examined
herself as O.P.W1. She also filed bunch of documents. On the basis of the
pleadings and evidence of the parties, the Courts below framed an issue whether
there is just and sufficient cause to pass a decree of divorce against the
respondent-wife on the grounds of cruelty and desertion or not.
The
Family Court, Cuttack passed its judgment and allowed the
petition filed by the appellant-herein under Section 13 of the Hindu Marriage
Act and thereby granted decree of divorce. The Family Court, after having heard
the parties and after perusing the evidence on record, held as follows:-
"When the wife-respondent declines to come to the marital home,
undoubtedly it gave mental shock to the petitioner-husband, which knew no
bounds. There is also no chance of reunion or reconciliation between the
parties. The only course open to the Court is to pass a decree of divorce
thereby to put an end to the litigation. The husband-petitioner has proved to
the satisfaction of the Court that the wife-respondent is not only cruel, but
also deserted him since more than seven years, which are good grounds for
passing a decree of divorce." "However, as regards the alimony the
learned Judge directed the petitioner-husband to pay Rs.50,000/- to the
wife-respondent towards her permanent alimony, which was to be paid/deposited
in the shape of bank draft." Aggrieved by the judgment of the Family
Court, the respondent filed a civil appeal before the High Court of Orissa
under Section 19 of the Family Courts Act, 1984.
The
appellant contended before the High Court that while allowing the proceedings
under Section 13(1) of the Hindu Marriage Act on the ground of cruelty and
desertion, the Family Court dissolved the marriage solemnized between the
parties on 05.03.1991 and has directed the appellant to pay a sum of Rs.50,000/-
towards permanent alimony to the respondent and pursuant to such direction, the
appellant has deposited the amount by way of a bank draft.
The
High Court, vide its judgment dated 23.12.2003, set aside the decree of divorce
passed by the Family Court and allowed the appeal filed by the respondent
herein holding that the appellant had failed to prove cruelty and desertion as
against the respondent.
Aggrieved
against the judgment of the High Court, the appellant preferred the above
Special Leave Petition.
We
heard Mr. Ranjan Mukherjee, learned counsel appearing for the appellant and Ms.
S.S. Panicker, learned counsel appearing for the respondent.
Mr. Ranjan
Mukherjee, learned counsel for the appellant, submitted that the High Court has
failed to appreciate that the failure of the respondent to substantiate the
alleged reasons for staying away and omission to demonstrate readiness and
willingness to discharge continuing obligation to return to matrimonial home
taken together were sufficient to establish animus deserendi, necessary to
prove legal desertion by the wife as per the principles laid down by this Court
in a number of cases.
He
would further submit that the appellant has proved the desertion of the
respondent- wife to the satisfaction of the Courts below and after considering
all the aspects and evidence led in support of the desertion, the Family Court,
after satisfying itself that a reunion between the parties is not possible, has
passed a decree of divorce and in pursuance to the direction of the Family
Court, the appellant had deposited a sum of Rs.50,000/- by way of a bank draft
in favour of the respondent herein. It was further submitted that the High
Court has failed to appreciate that in the present case both have been staying
separately for about the last 14 years and in the meantime, the respondent has
got a job at Bhubaneswar and moreover the appellant and his family members had
on quite a number of times tried to get the respondent to her matrimonial home
but of no avail. It was further submitted that the High Court has failed to
appreciate that the allegations of dowry demand as made by the respondent by
the mother-in-law and the brother-in-law are concocted afterthoughts of the
respondent to defend her inexplicable stand which is evident from the fact that
though the respondent had left her matrimonial home in the year 1991 itself she
had only chosen to lodge a complaint against her mother-in-law and
brother-in-law before the Mahila Commission only in the year 1988 i.e. after
about 7 years.
Mr. Ranjan
Mukherjee further submitted that the parties have been living separately for
almost 14 years which means that there is an irretrievable breakdown of
marriage and that because of such breakdown of marriage, the marriage between
the parties has been rendered a complete deadwood. Mr. Ranjan Mukherjee, in
support of his submissions, cited the following judgments of this Court.
1. Anjana
Kishore vs. Puneet Kishore, (2002) 10 SCC 194 (Three-Judge Bench)
2. Swati
Verma (Smt) vs. Rajan Verma and Others (2004) 1 SCC 123
3. Sanat
Kumar Agarwal vs. Nandini Agarwal, (1990) 1 SCC 475
4. Adhyatma
Bhattar Alwar vs. Adhyatma Bhattar Sri Devi, (2002) 1 SCC 308
5.
G.V.N. Kameswara Rao vs. G. Jabilli, (2002) 2 SCC 296
Ms.
S.S. Panicker, learned counsel for the respondent submitted that the plea and
evidence of the appellant before the Family Court was at variance and that in
absence of corroboration the allegation of the appellant as to the desertion or
cruelty by the respondent-wife could not be proved by the appellant. It was
submitted that the High Court has rightly arrived at the conclusion that the
order of the Family Court was erroneous as the same was passed by misquoting
the evidence of the respondent.
She
would further submit that there is no error in the impugned order of the High
Court much less an error requiring interference by this Court under Article 136
of the Constitution of India. It was submitted that the order of the Family
Court is prima facie illegal, erroneous and that the Family Court failed to
take into account the evidence adduced by the parties in its proper
perspective. According to learned counsel for the respondent, a perusal of the
evidence would make it amply clear that the appellant in his evidence has
clearly admitted that he had himself led the respondent on 23.10.1991 in her
father's house which was contrary to the statement in the divorce petition
wherein he had made a specific allegation that the respondent had left the
matrimonial home on her own accord. He had not written any letter nor taken any
relations to persuade the respondent to lead marital life with him and that he
was also not willing to stay with the respondent and to continue the marital
relations. Learned counsel for the respondent invited our attention to the
evidence led in by both the parties and misquoting of the evidence by the
Court. The respondent, on the contrary, in her evidence had stated that after
23.10.1991 she had been to the matrimonial home with her father and other
relations but the appellant refused to accept her, so she had to take shelter
at her parental home, that the appellant was on visiting terms to her parental
home that she had led conjugal life with the appellant till February, 1996,
that even in the year 1997, the respondent had stayed with the appellant at Jajpur
in a rented accommodation but was again forced to quit because of harassment by
the in-laws that she was also willing to stay with the appellant at Jaipur and
was interested in continuing their marital relations. Learned counsel submitted
that the Family Court has failed to take note that the wife had categorically
stated before the Conciliation Officer as also in the evidence and pleadings
before the Family Court that she was interested and willing to live with the
husband and that the appellant on the other hand had clearly stated that he did
not want to continue the marital relations. Learned counsel further argued that
the appellant has also not been able to prove the allegations of cruelty
against the respondent and that the appellant had only alleged that the conduct
of the respondent of not returning to the matrimonial home, her lack of
cooperation in establishing normal cohabitation, her repeatedly causing social
embarrassment to the appellant by not performing the last rites of the
father-in-law and not participating in a marriage ceremony of the appellant's
brother and filing false complaint against the mother-in-law and brother-in-law
had caused mental depression, anguish and frustration to the appellant amounts
to mental cruelty. She would also further submit that the allegations which are
necessary to constitute desertion are not present in the instant case. It was
also submitted that the appellant filed divorce petition in the year 1998 that
is almost 7 years after the alleged desertion by the wife from 23.10.1991 and
that the appellant has not given any valid explanation for the unexplained
delay in filing the divorce petition.
Concluding
her arguments, she submitted that the appellant was not entitled to a decree of
divorce on the ground of desertion and he and his family members were
themselves responsible for the respondent quitting the matrimonial home and,
therefore, the appellant cannot be permitted to take advantage of his own wrong
for obtaining a decree for divorce in violation of the provisions of the Hindu
Marriage Act.
She
submitted that the High Court was, therefore, correct in setting right an
apparent error on the face of the order of the Family Court as the order of the
Family Court was passed without taking into the evidence of the respondent and
the appellant.
We
have carefully gone through the pleadings, the evidence led and the judgments
cited by learned counsel for the appellant. Learned counsel for the respondent
has not cited any ruling in support of her contentions.
This
is a most unfortunate case where both the parties could not carry on their
marital ties beyond a period of 7 months of their marriage. The marriage
between the parties took place on 05.03.1991 and it is the specific case of the
appellant that the respondent deserted him on 22.10.1999 and never again
returned to her matrimonial home. Today the position is that the parties have
been living separately for almost 14 years which means that there is an
irretrievable breakdown of marriage and that because of such breakdown of
marriage the marriage between the parties has been rendered a complete
deadwood. Learned counsel for the appellant argued that no useful purpose will
be served by keeping such a marriage alive on paper, which would only aggravate
the agony of the parties. Therefore, he would pray that in the fitness of
things and in the interest of justice, the marriage between the parties is
forthwith terminated by a decree of divorce. We have perused the orders passed
by the Family Court and also of the High Court. Both the Family Court as well
as the High Court made efforts to bring about a reconciliation/rapprochement
between the parties. The Family Court in this regard gave a clear finding that
in spite of good deal of endeavour to effect a reconciliation the same could
not be effected because of the insistence of the respondent to remain
separately from her in-laws. It was totally an impracticable solution.
In
this context, we may usefully refer to page 35 of the paper book which reads as
follows:
"Be
that as it may, good deal of endeavour was made by the Conciliation Cell
attached to the Court as per Section 9 of the Family Courts Act and as well as
by this Court for a compromise between the parties, but the respondent-wife
insisted and wanted to remain separately from her in- laws which was totally
impracticable on the part of the petitioner-husband." This apart, since
October, 1991 till date the respondent has not taken any steps from her side to
go back to her matrimonial home. The said fact gets reflected from her own
deposition before the Family Court wherein she has deposed as under:- "On
23.10.1991, the petitioner left me in the house of my father. I went to the
marital home with my father and other relations, but the petitioner created
trouble and did not accept me as his wife. So I came away to my father and has
taken shelter there." "The petitioner left me in my father's house
after the marriage on 23.10.1991. It is not a fact that I came away suo moto
from the marital home deserting the petitioner. Again I came and stayed in the
marital home from December, 1991 till February 1992 and thereafter came to my
father's house." The Family Court has given cogent and convincing reasons
for passing the decree of divorce in favour of the appellant. Having been
convinced that there was no chance of reunion or reconciliation between the
parties, more so because of the complaint filed by the respondent before the Mahila
Commission, the Family Court with a view to put a quietus to the litigation
inter se and the bitterness between the parties rightly passed the decree of
divorce.
The
Division Bench of the High Court by the impugned judgment has reversed the
finding of the Family Court. The learned Judges of the High Court held against
the appellant on two points, namely:-
(a)
Misquoting of the evidence of the respondent, by the Family Court; and
(b)
Inconsistent plea of the appellant with regard to leaving the matrimonial home
by the respondent.
Both
the aforesaid points taken into consideration by the learned Judges of the High
Court cannot, in our view, be construed as a finding upon the merits of the
case.
In our
view that 14 years have elapsed since the appellant and the respondent have
been separated and there is no possibility of the appellant and the respondent
resuming the normal marital life even though the respondent is willing to join
her husband. There has been an irretrievable breakdown of marriage between the
appellant the respondent. The respondent has also preferred to keep silent
about her absence during the death of her father-in-law and during the marriage
ceremony of her brother-in-law. The complaint before the Mahila Commission does
not implicate the appellant for dowry harassment though the respondent in her
evidence before the Family Court has alleged dowry harassment by the appellant.
It is pertinent to mention here that a complaint before the Mahila Commission
was lodged after 7 years of the marriage alleging torture for dowry by the
mother-in-law and brother-in-law during the initial years of marriage. The said
complaint was filed in 1998 that is only after notice was issued by the Family
Court on 27.03.1997 on the application filed by the appellant under Section 13
of the Hindu Marriage Act. The Family Court, on examination of the evidence on
record, and having observed the demeanor of the witnesses concluded that the
appellant had proved that the respondent is not only cruel but also deserted
him since more than 7 years. The desertion as on date is more than 14 years
and, therefore, in our view there has been an irretrievable breakdown of
marriage between the appellant and the respondent. Even the Conciliation
Officer before the Family Court gave its report that the respondent was willing
to live with the appellant on the condition that they lived separately from his
family. The respondent in her evidence had not disputed the fact that attempts
have been made by the appellant and his family to bring her back to the
matrimonial home for leading a conjugal life with the appellant. Apart from
that, relationship between the appellant and the respondent have become
strained over the years due to the desertion of the appellant by the respondent
for several years. Under the circumstances, the appellant had proved before the
Family Court both the factum of separation as well as animus deserendi which
are the essential elements of desertion. The evidence adduced by the respondent
before the Family Court belies her stand taken by her before the Family Court.
Enough instances of cruelty meted out by the respondent to the appellant were
cited before the Family Court and the Family Court being convinced granted the
decree of divorce. The harassment by the in-laws of the respondent was an after-thought
since the same was alleged after a gap of 7 years of marriage and desertion by
the respondent. The appellant having failed in his efforts to get back the
respondent to her matrimonial home and having faced the trauma of performing
the last rites of his deceased father without the respondent and having faced
the ill-treatment meted out by the respondent to him and his family had, in our
opinion, no other efficacious remedy but to approach the Family Court for
decree of divorce.
In the
following two cases, this Court has taken a consistent view that where it is
found that the marriage between the parties has irretrievably broken down and
has been rendered a dead wood, exigency of the situation demands, the
dissolution of such a marriage by a decree of divorce to put an end to the
agony and bitterness:
(a) Anjana
Kishore vs. Puneet Kishore (2002) 10 SCC 194
(b) Swati
Verma (Smt.) vs. Rajan Verma & Ors. (2004) 1 SCC 123
Likewise,
in the following three cases, this Court has observed that the question of
desertion is a matter of inference to be drawn from the facts and circumstances
of each case and those facts have to be viewed as to the purpose which is
revealed by those facts or by conduct and expression of intention, both
anterior and subsequent to the actual act of separation.
(a) Sanat
Kumar Agarwal vs. Nandini Agarwal (1990) 1 SCC 475
(b) Adhyatma
Bhattar Alwar vs. Adhyatma Bhattar Sri Devi (2002) 1 SCC 308
(c)
G.V.N. Kameswara Rao vs. G. Jabilli (2002) 2 SCC 296
The
submission made by Mr. Ranjan Mukherjee that the marriage between the appellant
and the respondent has for all practical purposes become dead, that there can
be no chance of being retrieved and that it was better to bring the marriage to
an end merits acceptance and force.
In Chanderkala
Trivedi (Smt) vs Dr. S.P. Trivedi, (1993) 4 SCC 232, which is an appeal before
this Court against the grant of decree for divorce by the Bombay High Court on
the ground of cruelty. When leave was granted, this Court observed that they
are granting leave because it appears to them that the marriage between the
parties was in all practical purposes dead and the enforced continuity of the
marriage will only mean that the parties will spend more years in bitterness
against each other. Since the husband was in a position to provide reasonable
maintenance or permanent alimony, this Court granted special leave. At the time
of final hearing, this Court deleted the findings and has, however, decided not
to interfere with the order passed by a Division Bench of the Bombay High
Court. The husband, on the persuasion of this Court, agreed to provide a one
bed-room flat to the wife in a locality where it can be available between Rs. 3
and 4 lacs. Therefore, while dismissing the appeal, this Court directed the husband
to purchase a flat for the wife and further deposit a sum of Rs. 2 lacs by
means of a demand draft in the name of the appellant with the Family Court.
In V. Bhagat
vs. D. Bhagat (Mrs), (1994) 1 SCC 337 = AIR 1994 SC 710, this Court while
allowing the marriage to dissolve on ground of mental cruelty and in view of
the irretrievable breakdown of marriage and the peculiar circumstances of the
case, held that the allegations of adultery against the wife were not proved
thereby vindicating her honour and character. This Court while exploring the
other alternative observed that the divorce petition has been pending for more
than 8 years and a good part of the lives of both the parties has been consumed
in this litigation and yet, the end is not in sight and that the allegations
made against each other in the petition and the counter by the parties will go
to show that living together is out of question and rapproachment is not in the
realm of possibility. This Court at page 720 of AIR has observed thus:
"Before
parting with this case, we think it necessary to append a clarification. Merely
because there are allegations and counter allegations, a decree of divorce
cannot follow. Nor is mere delay in disposal of the divorce proceedings by
itself a ground. There must be really some extra- ordinary features to warrant
grant of divorce on the basis of pleading (and other admitted material) without
a full trial. Irretrievable breakdown of the marriage is not a ground by
itself. But while scrutinising the evidence on record to determine whether the
ground(s) alleged is/are made out and in determining the relief to be granted,
the said circumstance can certainly be borne in mind. The unusual step as the
one taken by us herein can be resorted to only to clear up an insoluable mess,
when the Court finds it in the interest of both parties." The decision
reported in Romesh Chander vs. Savitri AIR 1995 SC 851 = 1995 AIR SCW 647 is
yet another case where this Court in its powers under Article 142 of the
Constitution directed the dissolution of the marriage subject to the transfer
of the house of the husband in the name of the wife. In that case, the parties
had not enjoyed the company of each other as husband and wife for 25 years,
this is the second round of litigation which routing through the trial court
and the High Court has reached the Supreme Court. The appeal was based on
cruelty. Both the Courts below have found that the allegation was not proved
and consequently it could not be made the basis for claiming divorce. However,
this Court after following the earlier decisions and in exercise of its power
under Article 142 of the Constitution directed the marriage between the
appellant and the respondent shall stand dissolved subject to the appellant
transferring the house in the name of his wife within four months from the date
of the order and the dissolution shall come into effect when the house is
transferred and possession is handed over to the wife.
The
facts and circumstances in the above three cases disclose that reunion is
impossible. Our case on hand is one such. It is not in dispute that the
appellant and the respondent are living away for the last 14 years. It is also
true that a good part of the lives of both the parties has been consumed in
this litigation. As observed by this Court, the end is not in sight. The
assertion of the wife through her learned counsel at the time of hearing
appears to be impractical. It is also a matter of record that dislike for each
other was burning hot.
Before
parting with this case, we think it necessary to say the following:
Marriages
are made in heaven. Both parties have crossed the point of no return. A
workable solution is certainly not possible. Parties cannot at this stage
reconcile themselves and live together forgetting their past as a bad dream.
We, therefore, have no other option except to allow the appeal and set aside
the judgment of the High Court and affirming the order of the Family Court
granting decree for divorce. The Family Court has directed the appellant to pay
a sum of Rs. 50,000/- towards permanent alimony to the respondent and pursuant
to such direction the appellant had deposited the amount by way of bank draft.
Considering the status of parties and the economic condition of the appellant
who is facing criminal prosecution and out of job and also considering the
status of the wife who is employed, we feel that a further sum of Rs. 1 lakh by
way of permanent alimony would meet the ends of justice. This shall be paid by
the appellant within 3 months from today by an account payee demand draft drawn
in favour of the respondent Arundhati Tripathy and the dissolution shall come
into effect when the demand draft is drawn and furnished to the respondent.
In the
result, the Civil Appeal is allowed. There will be no order as to costs.
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