Satish Sitole Vs.
Ganga [2008] INSC 1087 (10 July 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 7567 of 2004 Satish
Sitole ...Appellant Smt. Ganga ...Respondent
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.
.....................................................J.
(Altamas Kabir)
.........................................................J.
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