Sanjeeta Das Vs.
Tapan Kumar Moahnty [2010] INSC 768 (22 September 2010)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 8196-8197 OF 2010
(Arising out of S.L.P. (Civil) Nos.5289-5290 of 2010) Sanjeeta Das
....Appellant Versus Tapan Kumar Mohanty ....Respondent
AFTAB ALAM, J.
1.
Leave
granted.
2.
The
order of a division bench of the Orissa High Court that is before us in this
appeal, though passed in a judicial proceeding, appears to us to be completely
alien to the law. The relevant facts to see the impugned order in perspective
may be stated thus.
3.
The
respondent and the appellant were married in accordance with the Hindu
religious rites. About three years after the marriage, he filed a petition
(Civil Proceeding No.136 of 1997) before the Family Court, Rourkela for 2
dissolution of his marriage with the appellant on grounds of cruelty and
desertion [clauses (ia) and (ib) of section 13(1) of the Hindu Marriage Act,
1955]. The appellant strongly resisted the grounds taken by the respondent for
dissolution of their marriage and took the plea that in reality she had been
deserted and subjected to cruelty by the respondent. For the purpose of the
present appeal, there is no need for us to go into the details of the
allegations made by the respondent in his petition or the counter-allegations
made against him in the written statement filed by the appellant. Suffice it to
note that on the basis of the evidences adduced before it, the Family Court in
its judgment dated October 29, 2005 arrived at findings against the respondent
on both the issues of desertion and cruelty. Invoking, however, the provision
of section 23A of the Act, it directed the appellant to resume cohabitation
with her husband, the respondent, within 3 months from the date of the
judgment. The operative order of the Family Court is as follows:
"In the ultimate
analysis, while rejecting the prayer of the petitioner seeking for grant of
dissolution of his marriage with the respondent by a decree of divorce, I pass
a decree of restitution of the conjugal life of the parties. Accordingly, the
respondent-wife is directed to restitute her conjugal life with the
petitioner-husband within 3 months, hence on the event of the respondent coming
to the fold of the petitioner to restitute her conjugal life with the latter,
he shall co-operate with the former and that consequent upon success of the
restitution of conjugal life between the parties, the impact/gravity of the
criminal proceeding u/s. 498A IPC started against the petitioner and his 3
family members at the instance of the respondent shall be loosen"
4.
Against
the judgment and order passed by the Family Court, the respondent preferred
appeal (MATA No.59 of 2005) before the Calcutta High Court. The appeal was
disposed of by a division bench of the High Court by order dated September 2, 2009.
From that order it appears that the respondent filed an affidavit before the
court declaring his willingness to pay a sum of Rs.10,00,000.00 (rupees ten
lakhs only) as life term maintenance of the appellant and for the expenses of
marriage of their daughter Kumari Ayushi Mohanty (Richi), in consideration of
the dissolution of his marriage with the appellant by a decree of divorce and
compounding of a criminal case instituted against him by the appellant. The
respondent further stated in the affidavit that he would pay the sum of
Rs.5,00,000.00 (rupees five lakhs only) within 4 months from the date of
passing of the decree of divorce and the balance amount of Rs.5,00,000.00
(rupees five lakhs only) in 4 equal installments spread over a period of 2 years
from the date of the passing of the decree of divorce. The High Court in its
order dated September 2, 2009 simply paraphrased the statements made in the
affidavit filed by the respondent and made it the order of the court. The order
dated September 2, 2009 was later modified by order dated November 20, 2009 to
the further advantage of the respondent. It was clarified that the payment of
4 Rs.10,00,000.00 (rupees ten lakhs only) was not only for the lifetime
maintenance of the appellant but also for the maintenance of the daughter,
Kumari Ayushi Mohanty (Richi) till she got married besides the expenses that
might be incurred for her marriage.
5.
These
two orders passed by the High Court, by which it purported to grant a decree of
divorce for dissolution of the respondent's marriage with the appellant are now
before us in appeal and plainly speaking we are unable to put any meaning to
the order of the High Court. The marriage between the respondent and the
appellant was admittedly solemnized in accordance with the Hindu religious
rites. A Hindu marriage can be dissolved only on any of the grounds plainly and
clearly enumerated under section 13 of the Hindu Marriage Act. The law does not
permit the purchase of a decree of divorce for consideration, with or without
the consent of the other side.
6.
Leaned
counsel appearing for the respondent urged us not to interfere in the matter
submitting that the respondent and the appellant had lived together barely for
four months. He stated that the marriage had taken place on April 29, 1994 and
from August 24, 1994 they are living separately. He also tried to argue that
the order of the High Court was passed with the consent of the parties and for
that reason also this Court should not interfere in the matter. We are not prepared
to accept the submission for a moment.
5 First, there is
nothing to indicate that the order was passed with the consent of the
appellant. All that is said in the order is as under:
"On
consideration of such affidavit and the submission of the learned counsel
appearing for the parties, we dispose both these appeals with the following
directions"
(Emphasis added)
7.
The
affidavit referred to in the order is the one filed by the respondent and
consideration of submission of counsel for the parties does not indicate that
the appellant had given her consent for dissolution of her marriage with the
respondent on payment of Rs.10,00,000.00 (rupees ten lakhs only).
Secondly, and more
importantly, the consent of the parties is of no relevance in the matter. No
court can assume jurisdiction to dissolve a Hindu marriage simply on the basis
of the consent of the parties de hors the grounds enumerated under section 13
of the Act, unless of course the consenting parties proceed under section 13B
of the Act.
8.
In
the light of the discussions made above, we find the order of the High Court
completely unsustainable. It is set aside and the appeal against the judgment
and order passed by the Family Court is restored to its file. The High Court
must now hear and dispose of the appeal along with the connected appeal afresh,
in accordance with law. Since the matter is somewhat old, the High Court may
give the appeals some priority and dispose them of at an early date.
9.
In
the result, the appeals are allowed with costs, quantified at Rs.15,000.00
(rupees fifteen thousand only).
.....................................J
(AFTAB ALAM)
.......................................J
(R.M. LODHA)
New
Delhi
September
22, 2010.
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