Court can Grant Divorce even if the facts of the case do not provide a ground for the same

If Spouse is unwilling to stay together but bent to keep other Spouse tied in Dead Marriage, then it is also 'Cruelty'

Refusal to participate in proceeding for Divorce and forcing the appellant to Stay in a Dead Marriage would itself constitute Mental Cruelty.

If there is no likelihood of the spouses living together then for all practical purposes there is an Irretrievable Breakdown of the Marriage!

The instances/proof/evidence placed before the court was sufficient to establish that one Spouse (female-wife) Frustrated the other Spouse (Male-husband) and Frustrated the Wedlock to such an extent that court should not blink once to liberate the Frustrated Spouse from Frustrated Wedlock by 'Divorce'

As usual the other spouse (female-wife) traded same, serious charges and inflated blames that were however found meritless by the Apex Court.

The courts below did not decide ignoring merits and Apex Court had to analyze the facts and evidence judiciously and deliver the verdict.

This latest decision by Apex Court shall open new chapters and debates for the better and best to come in future.

Apex Court: Supreme Court of India; has inherent powers to do 'Complete Justice'

Dated: 09 October, 2017:  The Apex Court reiterated that Article 142 of the Constitution can be invoked for the Dissolution of a Marriage where the court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if: The facts of the case do not provide a ground in law on which the divorce could be granted.

Husband and wife are both judicial officers (District Judge) in state of West Bengal. They have been living separately for 17 years. The wife did not opt for transfer to town where husband was posted although this option was available to her. The wife after filing of written statement did not appear again before trial court. Neither she responded to the request made by the High Court for personal appearance and did not appear in High Court. Still, High Court held that irretrievable breakdown of marriage cannot be a ground for divorce and dismissed the appeal also holding that husband has failed to prove any Cruelty by Wife.

The correctness of the judgment of the High Court was assailed in the Appeal before Supreme Court.

Nor did wife appear in Supreme Court.

The Supreme Court noting the Conduct of Wife declared that her Conduct indicates she is NOT interested in Living with Husband and refusal to participate in divorce proceedings in Supreme Court and courts below but forcing the Husband to stay in Dead Marriage constitutes 'Mental Cruelty'

The Apex court granted divorce to Husband and liberated him from dead marriage; dead for 17 years.

In this matter also the Apex Court has adopted and reiterated the problematic approach of invoking the grounds of 'Irretrievable Breakdown of Marriage' as well as the 'Fault Ground' of Cruelty in dissolving the marriage.

In one stroke the Apex Court has asserted its authority and responsibility to deliver 'Complete Justice' and that also brought out the long felt need for inclusion of provisions in the Law to suit need of Modern Times for which legislature has to play its part.

The reason, justification and history of the verdict can be tracked back.

{A}  (a) Central Government Act: Article 142 in The Constitution Of India 1949

142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc

(b) The Supreme Court has maintained its supremacy by reiterating that the inherent power under Art. 142 is not available to the High Courts or other subordinate courts.

'This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil courts nor even the High Courts can, therefore, pass orders on grounds not provided for in Section 13 and 13-B of the Hindu Marriage Act, 1955.'

Supreme Court of India
Anil Kumar Jain vs Maya Jain on 1 September, 2009

 
(c) The Hindu Marriage Act, 1955 with its amendment laid down grounds, for divorce; Sec,13;

- On Fault liability theory of divorce, as in subsection (1) (Nine grounds e.g; Cruelty, Desertion) and only the party aggrieved may avail of them.
- On Breakdown theory of divorce as in sub-section (1-A) (Two grounds)
- Special that can be availed by wife only as in sub-section (2) (Four Grounds)

THE HINDU MARRIAGE ACT, 1955:

13. Divorce-

23. Decree in proceedings. -  (1) (b) where the petition is cruelty the petitioner has not in any manner condoned the cruelty,

(d) The Special Marriage Act, 1954:Sec.27, recognizes grounds for divorce based on guilt (eight grounds) on which either party may seek divorce and grounds on which wife alone may seek divorce (two grounds).

(e) Irretrievable Breakdown of Marriage:

This means the couple can no longer live together as man and wife. Both partners, and one partner, must prove to the court that the marriage broke down so badly that there is no reasonable chance of getting back together.

Literally Irretrievable Breakdown of Marriage is not listed amongst the grounds in either of the Act but it's need is a fact, and an old one.

(i) Decree for judicial separation or for restitution of conjugal rights necessarily presupposes that the spouse against whom such a decree is granted has been guilty of marital wrong or has failed to discharge an essential marital obligation.

As per The developments in the western world, and feeling the similar needs of modern world in India the Full Bench of Delhi High Court way back in 1971 called the attention to the necessity of introducing alike of  'Irretrievable Breakdown of Marriage';

''The Court should assume that the relations between the parties have reached a stage where there is no possibility of reconciliation and as such it might grant the decree of divorce. The aforesaid object is in consonance with the modern trend not to insist on the maintenance of union which has utterly broken down.”

Delhi High Court
Ram Kali vs Gopal Dass on 13 January, 1971
Bench: H Khanna, V Misra, R Sachar

(ii) If people fight like Kilkenny cats, they fight or disagree very violently. {Kilkenny fight; fight like Kilkenny cats almost to the death.}

Subsequently; Law commission in IT's report 71 of April 1978 titled “The Hindu Marriage Act, 1955 - Irretrievable Breakdown of Marriage as a Ground of Divorce” recommended amendments in the Hindu Marriage Act to make irretrievable breakdown of marriage as a new ground for granting divorce among the Hindus indicating that legislature has been conscious of the social developments and the need for making available the remedy of divorce in more and more situations.

The Apex Court has also taken note of the need of Modern Times and has referred to certain excerpts from the Law Commission report: 

'A few excerpts from the Seventy-first Report of the Law Commission of India on the Hindu Marriage Act, 1955 -- "Irretrievable breakdown of marriage" -- dated April 7, 1978 throw much light on the matter:

Proof of such a breakdown would be that the husband and wife have separated and have been living apart .. once it is known that there are no prospects of the success of the marriage, to drag the legal tie acts as a cruelty to the spouse and gives rise to crime and even abuse of religion to obtain annulment of marriage.'

Supreme Court of India
Ashok Hurra vs Rupa Ashok Hurrarupa Bipin Zaveri on 10 March, 1997
Bench: M.M. Punchhi, K.S. Paripoornan

(iii) The Apex Court has also asked to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce.

'Before we part with this case, on the consideration of the totality of facts, this Court would like to recommend the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. A copy of this judgment be sent to the Secretary, Ministry of Law & Justice, Department of Legal Affairs, Government of India for taking appropriate steps.'

Supreme Court of India
Naveen Kohli vs Neelu Kohli on 21 March, 2006
Bench: B.N. Agrawal, A.K. Mathur, Dalveer Bhandari

(iv)Taking Suo Motu Notice of Naveen Kohli vs Neelu Kohli case Law commission Report No. 217 of March 2009 titled: 'Irretrievable Breakdown of Marriage –Another Ground for Divorce; has recommended including in the Act 'Irretrievable Breakdown of Marriage'; as a ground for divorce.

(v) Recently: Allahabad HC has suggested Law Commission to initiate appropriate steps to consider for incorporating 'irretrievable breakdown of marriage' as grounds of Divorce in S.13 of Hindu Marriage Act.

'When it is obvious that the marriage between the two cannot, under any circumstances, continue any further and the marriage becomes practically dead, then considering the matters of ''irretrievable breakdown of marriage', or where the repair of broken marriage becomes impossible, it appears appropriate that such grounds may be accepted as ground for divorce. Therefore, this Court suggests the Law Commission of the State to take appropriate steps to consider for incorporating the ground of ''irretrievable breakdown of marriage” as grounds of divorce in Section 13 of the Hindu Marriage Act. Let a copy of this judgment be sent to Uttar Pradesh State law Commission for taking appropriate measures.

Allahabad High Court
Puja Suri vs Bijoy Suri on 26 May, 2016
Bench: Pramod Kumar Srivastava

(f) THE MARRIAGE LAWS (AMENDMENT) BILL, 2010 did not sail through and was put in cold storage.

{B} (i) Matrimonial offence: Misbehavior, such as adultery, desertion, or cruelty, by a party to a marriage. (Oxford Reference)

Matrimonial offence which is a ground of divorce implies: If one spouse commits such a matrimonial offence the other aggrieved spouse may seek divorce from the delinquent spouse.

(ii) In Litigation; Proof in all forms is essential while preparing to make charges or defense.

It is good that Fault Theory, Guilt Theory, Offense Theory, NO Fault Theory have been discussed philosophically, factually and have been useful and getting noticed in judgments.

Presumption may be necessary or essential in matrimonial offences because it may be difficult to get evidence. Presumption is to be backed by irrefutable evidence pointing clearly to fault, guilt on which spouse claims to be suffering from frustrated wedlock and seek divorce as frustrated spouse, so as to convince the 1st jurisdictional court (Lower Court) to get liberated from frustrated wedlock that is also deadlock for recourse of remarriage. The court of law must not be expected to end the institution of marriage on the charge of matrimonial offence(s) on guess, presumption alone.

{C} The Court has to deal NOT with an ideal husband and an ideal wife but with the particular man and woman before it.

One spouse in matrimonial relations must not be expected to remain endlessly tolerant and silent sufferer of abuse and cruelty by other spouse.

Condonation of a matrimonial offence is not to be likened to a full Presidential Pardon under Article 72 of the Constitution which, once granted, wipes out the guilt beyond the possibility of revival.

"No matrimonial offence is erased by condonation. It is obscured but not obliterated. Condoned cruelty can therefore be revived, say, by desertion or adultery.”

'Condonation under Section 23(1)(b) of  The Hindu Marriage Act, 1955, therefore means conditional forgiveness, the implied condition being that no further matrimonial offence shall be committed.'

That which may be cruel to one person may be laughed off by another and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances. 

Supreme Court of India
Narayan Ganesh Dastane vs Sucheta Narayan Dastane
BENCH:CHANDRACHUD, Y.V.GOSWAMI, P.K.UNTWALIA, N.L.

{D} 'Living separately' and 'Have not been able to live together' was and continues to form basis of 'Breakdown (Irretrievable) of Marriage'

Way back The Apex Court had illustrated the expression:

-'Living separately' connotes not living like husband and wife. It has no reference to the place of living.  The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately..

-'Have not been able to Live together'  which  indicates  the  concept  of  broken down marriage   and it  would  not  be  possible  to   reconcile themselves.

Supreme Court of India
Smt. Sureshta Devi vs Om Prakash on 7 February, 1991
Bench: Shetty, K.J. (J)

{E} Irretrievable breakdown of the marriage is also a ground for divorce. .. Its inclusion as ground for divorce in the ACT can only be done by the legislature and not by the Court.

This was pointed out, earlier also, by the Apex court.

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.

If 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. 

Supreme Court of India
Vishnu Dutt Sharma vs Manju Sharma on 27 February, 2009
Bench: Markandey Katju, V.S. Sirpurkar

Prior to that: The Apex Court asked to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce.

Naveen Kohli vs Neelu Kohli on 21 March, 2006

(F} It would not be appropriate to apply any submission of irretrievably broken marriage as a straight jacket formula for grant of relief of divorce. 

Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse.

The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by Statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well knit, healthy and not a disturbed and porous society. Institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of irretrievably broken marriage as a straight jacket formula for grant of relief of divorce. 

Supreme Court of India
Chetan Dass Appellant vs Kamla Devi Respondent on 17 April, 2001
Author: B Kumar
Bench: D.P. Mohapatra, Brijesh Kumar

{G} When the respondent gives priority to her profession over her husband's freedom it points unerringly at disharmony, diffusion and disintegration of marital unity, from which the Court can deduce about 'Irretrievable Breaking of Marriage'

It is true that irretrievable breaking of marriage is not one of the statutory grounds on which Court can direct dissolution of marriage, this Court has with a view to do complete justice and shorten the agony of the parties engaged in long drawn legal battle, directed in those cases dissolution of marriage. But as noted in the said cases themselves those were exceptional cases.In the aforesaid legal and factual background the inevitable conclusion is that the appellant is entitled to a decree of divorce and we direct accordingly.

Supreme Court of India
A. Jayachandra vs Aneel Kaur on 2 December, 2004
Bench: Ruma Pal, Arijit Pasayat, C.K.Thakker

{H} Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well.

Lest the institution of marriage and the matrimonial bonds get fragile easily to be broken which may serve the purpose most welcome to the wrong-doer who, by heart, wished such an outcome by passing on the burden of his wrong-doing to the other party alleging her to be the deserter leading to the breaking point.

The allegations of adulterous conduct of the appellant (husband) have been found to be correct and the courts below have recorded a finding to the same effect. In such circumstances, in our view, the provisions contained under Section 23 of the Hindu Marriage Act would be attracted and the appellant would not be allowed to take advantage of his own wrong. Let the things be not misunderstood nor any permissiveness under the law be inferred, allowing an erring party who has been found to be so by recording of a finding of fact in judicial proceedings, that it would be quite easy to push and drive the spouse to corner and then brazenly take a plea of desertion on the part of the party suffering so long at the hands of the wrong-doer and walk away out of the matrimonial alliance on the ground that marriage has broken down.

The defence of the respondent (wife) for having a justified reason to live away from the husband has been found to be correct.

He (appellant) perhaps prefers to snap relationship with the respondent (Wife) rather than with his Sosamma Thomas (paramour).

A decree of divorce on the ground of marriage having been irretrievably broken cannot be granted in the facts and circumstances of the case as indicated above.

In the result, the appeal has no merit and it is dismissed with costs which is assessed as Rs.10,000/-.

Supreme Court of India
Chetan Dass Appellant vs Kamla Devi Respondent on 17 April, 2001
Bench: D.P. Mohapatra, Brijesh Kumar

{I} The spouse seeking divorce has to be innocent of blame. The petitioner must approach court with clean hands.

In matrimonial jurisprudence, such provisions are founded on the 'matrimonial offence theory' or the 'fault theory' Under this jurisprudential principle, it is only on the ground of an opponent's fault, that a party may approach a Court for seeking annulment of his/her matrimonial alliance. In other words, if either of the Parties is guilty of committing a matrimonial offence, the aggrieved party alone is entitled to divorce. The party seeking divorce under the “matrimonial offence theory” / the “fault theory” must be innocent. A party suffering “guilt” or “fault” Disentitles himself/herself from consideration.

The issue in hand should be adjudged by the above standards, when the same prayer is made by the husband. To constitute justice, the picture should appear to be the same, irrespective of the angle from which it is viewed. If the same sequence of facts cannot be viewed as doing justice to the husband, they have to be likewise viewed for the wife as well.

The appellant (Male spouse-husband) contended that the matrimonial ties between the parties had irretrievably broken down as the parties have lived apart for more than 12 years and other spouse's (Female spouse-wife) medical condition is such that she is unable to perform her matrimonial obligations. The Apex court pierced the veil and diagnosed that the medical condition of wife is due to neglect and hugely selfish self-centered interest of husband.  

The conception was aborted when wife was in the fourth month of her pregnancy, as she had commenced to suffer from hypertension resulting into fits, extreme morning sickness and general weakness. The decision to abort the pregnancy was based on medical advice.

The attending gynecologist had cautioned the couple against any further conception for at least two years…and that pregnancy during this period could lead to serious medical complications. Despite that husband had proceeded with unsafe cohabitation, resulting in a second pregnancy within a short period of eight months i.e., well within the unsafe period. Despite the precarious condition of the wife, she was persuaded by her husband, to carry on the pregnancy till the eighth month. ..the child born to her surviving for only eight days. In this behalf her assertion is, that her husband was to be blamed for the same, as he did not heed to the medical advice of the gynecologist. According to wife, the fall out of the second pregnancy, specially the effect thereof to her health, was the real cause of the turn around of the matrimonial relationship, between the parties. The claims of husband of creating a Trust with corpus of Rs.10 Lakh for upkeep, maintenance, sustenance, lease deed for residence at nominal rent in posh locality, Rs.25,000/- per month towards maintenance, during the pendency of the proceedings to wife were not found convincing.

First and foremost it was sought to be averred, that it was Darshan Gupta, the appellant-husband, who was pointedly responsible for the medical condition of the respondent-wife. It was therefore submitted, that he ought to squarely accept his fault for the same. Accordingly it was contended, that it was not open to him to press a claim for dissolution of marriage under Section 13(1) of the Hindu Marriage Act, 1955, by making accusations, for which he himself was blameworthy.

The Apex Court declined to exercise of its jurisdiction under Article 142 of the Constitution of India to grant divorce on plea of husband, on the ground of irretrievable breakdown of marriage for the simple reason that the breakdown is only from the side of the husband.'

SUPREME COURT OF INDIA

Darshan Gupta … Appellant Versus Radhika Gupta … Respondent
J. (P. Sathasivam) …………………………….J. (Jagdish Singh Khehar)

New Delhi; July 1, 2013.

{J} 'Refusal to participate in proceeding for divorce and forcing the appellant to stay in a dead marriage would itself constitute mental cruelty.'

The appellant and the respondent are senior officials of the Indian Administrative Service..married on 13.12.1984 at Calcutta under the Special Marriage Act, 1954. The respondent was a divorcee and had a female child from her first marriage. The respondent's first husband, Debashish Gupta filed a belated appeal against the decree of divorce obtained by her from the District Court of Patna.

Therefore, during the pendency of the appeal, she literally persuaded the appellant to agree to the marriage immediately so that the appeal of Debashish Gupta may become infructuous.

Soon after the marriage, the respondent asked the appellant not to interfere with her career… unilaterally declared her decision not to give birth to a child for two years and the appellant should not be inquisitive about her child and he should try to keep himself aloof from her as far as possible. .. there was imposition of rationing in emotions in the arena of love, affection, future planning and normal human relations though he tried hard to reconcile himself to the situation created by the respondent.

She left him even when there was no one to look after him during his illness. On her return, the respondent remained in Calcutta for about four days, but she did not care to meet the appellant or enquire about his health. ..  unilaterally declared that she would not have any child and it was her firm decision. The appellant felt that his marriage with the respondent was merely an eye-wash because immediately after the marriage, serious matrimonial problems developed between them which kept growing.

She took strong exception to Prabir's presence in her flat and started shouting that the appellant had no self-respect and as such was staying in her flat without any right.. he was literally asked to get out of that flat. The respondent's father was also there and it appeared that the act was pre-conceived. The appellant felt extremely insulted and humiliated and immediately thereafter he left the flat and approached his friend to find a temporary shelter and stayed with him till he got a government flat allotted in his name on 13.9.1990.

The respondent refused cohabitation and also stopped sharing bed with him without any justification. Her unilateral decision not to have any child also caused mental cruelty on the appellant. ..the respondent desired sadistic pleasure at the discomfiture and plight of the appellant which eventually affected his health and mental peace.

In these circumstances, the appellant has prayed that it would not be possible to continue the marriage with the respondent and he eventually filed a suit for the grant of divorce.

The trial court, after analyzing the entire pleadings and evidence on record, came to the conclusion that the … facts led to mental cruelty.. the decree was granted and the marriage between the parties was dissolved.

The respondent, aggrieved by the said judgment of the learned Additional District Judge, filed an appeal before the High Court.

The Division Bench of the High Court vide judgment dated 20.5.2003 reversed the judgment of the Additional District Judge on the ground that the appellant has not been able to prove the allegation of mental cruelty.

The High Court has seriously erred in not appreciating the evidence on record in a proper perspective. The respondent's refusal to cohabit has been proved beyond doubt. The High Court's finding that the husband and wife might be sleeping in separate rooms did not lead to a conclusion that they did not cohabit and to justify this by saying that the respondent was highly educated and holding a high post was entirely unsustainable. Once the respondent accepted to become the wife of the appellant, she had to respect the marital bond and discharge obligations of marital life.

When we take into consideration aforementioned factors along with an important circumstance that the parties are admittedly living separately for more than sixteen and half years (since 27.8.1990) the irresistible conclusion would be that matrimonial bond has been ruptured beyond repair because of the mental cruelty caused by the respondent.

In the backdrop of the spirit of a number of decided cases, the learned Additional District Judge was fully justified in decreeing the appellant's suit for divorce. In our view, in a case of this nature, no other logical view is possible.

On proper consideration of cumulative facts and circumstances of this case, in our view, the High Court seriously erred in reversing the judgment of the learned Additional District Judge which is based on carefully watching the demeanour of the parties and their respective witnesses and the ratio and spirit of the judgments of this Court and other Courts.

The High Court erred in setting aside a well-reasoned judgment of the trial court based on the correct analysis of the concept of mental cruelty.

Consequently, the impugned judgment of the High Court is set aside and the judgment of the learned Additional District Judge granting the decree of divorce is restored.

Supreme Court of India
Samar Ghosh vs Jaya Ghosh on 26 March, 2007
Author: D Bhandari
Bench: B.N. Agrawal, P.P. Naolekar, Dalveer Bhandari

{K} Decree of divorce has been granted to put quietus to all litigations between the parties and to save them from further agony..

We are fully alive of the fact that this court has been exercising the power under Article 142 of the Constitution for dissolution of marriage where the Court finds that marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted.

This case reveals a very sorry state of affairs that the parties, merely being highly qualified, have claimed even to be higher and above the law, and have a vested right to use, misuse and abuse the process of the Court.

Parties as they could not bear each other, started living separately from 24.10.2008. Petitioner approached the Competent Court at Gurgaon for dissolution of marriage. … that case is still pending consideration. Parties filed the petition for divorce by mutual consent only in November 2009 before the Family Court, Delhi. Learned counsel for the petitioner could not explain as to how the case for divorce could be filed before the Family Court, Delhi during the pendency of the case for divorce before the Gurgaon Court.

Such a procedure adopted by the petitioner amounts to abuse of process of the court.

Petitioner has approached the different forums for the same relief merely because he is very much eager and keen to get the marriage dissolved immediately even by abusing the process of the Court.

Thus, this is not a case where there has been any obstruction to the stream of justice or there has been injustice to the parties, which is required to be eradicated, and this Court may grant equitable relief. Petition does not raise any question of general public importance. None of contingencies, which may require this Court to exercise its extraordinary jurisdiction under Article 142 of the Constitution, has been brought to our notice in the case at hand.

19. Thus, in view of the above, we do not find any justification to entertain this petition. It is accordingly dismissed.

Supreme Court of India
Manish Goel vs Rohini Goel on 5 February, 2010
Bench: Aftab Alam, B.S. Chauhan

{L} It will not be possible for the parties to live together and there is no purpose in compelling the parties to live together.

In the instant case the marriage is irretrievably broken down with no possibility of the parties living together again.

Appellant (husband)  and respondent (wife) got married according to the Hindu rites and customs in the year 1972. After three years of marriage a daughter was born of the wedlock. Because of the misunderstanding between them the respondent started living separately from her husband from the year 1981 onwards ..The respondent also filed several criminal proceedings against her husband with which we are not concerned in this appeal.

In the year 1989 the appellant filed a petition for a decree of dissolution of marriage on the ground of mental cruelty and the respondent having deserted him without any reasonable cause. The District Judge, Gwalior, dismissed the petition filed by the husband for dissolution of the marriage. The Appellant filed a first appeal in the High Court under Sec. 28 of the Hindu Marriage Act.

The High Court also dismissed the appeal of the appellant. The appellant has therefore questioned the correctness of the order passed by the High Court in the above appeal.

 In view of the several litigations between the parties it is not possible for her to prosecute criminal case against the husband and at the same time continue to reside with her husband. In the instant case the marriage is irretrievably broken down with no possibility of the parties living together again. Both the parties have crossed 49 years and living separately and working independently since 1981. There being a history of litigation with respondent-wife repeatedly filing criminal cases against the appellant which could not be substantiated as found by the Courts. This apart, only child born in the wedlock in 1975 has already been given in marriage. Under such circumstances the High Court was not justified in refusing to exercise its jurisdiction in favour of the appellant. This apart, the wife also has made certain allegations against her husband, that the husband has already remarried and is living with another lady as stated by her in the written statement. The High Court also has not considered the allegations made by the respondent which have been repeatedly made and repeatedly found baseless by the courts.

In our opinion it will not be possible for the parties to live together and therefore there is no purpose in compelling both the parties to live together. Therefore the best course in our opinion is to dissolve the marriage by passing a decree of divorce so that the parties who are litigating since 1981 and have lost valuable part of life can live peacefully in remaining part of their life.

During the last hearing both the husband and wife were present in Court. Husband was ready and willing to pay lumpsum by way of permanent alimony to the wife. The wife was not willing to accept the lumpsum but however expressed her willingness to live with her husband.

We are of the opinion that her desire to live with her husband at this stage and at this distance of time is not genuine. Therefore, we are not accepting this suggestion made by the wife and reject the same.

In the result, the appeal filed by the husband stands allowed. There will be a decree of dissolution of marriage in favour of the husband.

No costs.

Supreme Court of India
Rishikesh Sharma vs Saroj Sharma on 21 November, 2006
Author: . A Lakshmanan
Bench: Dr. Ar. Lakshmanan, Tarun Chatterjee Jj

{M}  If there is no likelihood of the spouses living together then for all practical purposes there is an Irretrievable Breakdown of the Marriage!

Referring to various judgments; Samar Ghosh v. Jaya Ghosh, Manish Goel v. Rohini Goel, Rishikesh Sharma v. Saroj Sharma:

The Apex Court reiterated that Article 142 of the Constitution can be invoked for the Dissolution of a Marriage where the court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if: The facts of the case do not provide a ground in law on which the divorce could be granted.

The husband and wife both Dist. Judges in West Bengal wore married in 1992 as per The Special Marriage Act, 1954. They had a girl child. Due to matrimonial discord they were living separately since 2000. The appellant files application for divorce u/s 27.

Husband alleged: Improper behavior by wife, NO respect shown to her ailing Father in Law, desertion, declining custody of child, did not visit husband when he was seriously ill, intemperate language, threats to file criminal cases if husband though of pursuing petition for divorce that was proposed in 2005.

Wife filed written statement: denying all allegations, refuting averments and sought for dismissal of application for divorce. Wife did not participate in proceedings before trial court.

The trial court scrutinized the evidence adduced by husband and concluded that he did not make out a case for divorce and failed to prove cruelty on part of wife.

The husband approached Calcutta High Court.The High Court noted that both husband and wife are judicial officers and attempted for conciliation between both. Wife did not seek to appear before the High Court also.

Though High Court noted that both are living separately since year 2000, no attempt was made by either of the parties to be posted at the same place, the High Court dismissed the appeal of husband in 2012 holding that irretrievable breakdown of marriage cannot be a ground for divorce and held that the husband failed to prove mental cruelty on the part of the wife.

3. …The correctness of the judgment of the High Court is assailed in the above Appeal.

5. Notice was issued to the Respondent on 8 th October, 2012 to explore the possibility of an amicable resolution to the matrimonial dispute. The parties were directed to appear before the Mediation Centre of the Supreme Court on 21 st November, 2012. The Respondent did not appear before the Mediation Centre in spite of service of the Notice.

She chose not to appear before this Court.

Fresh Notice was ordered on 17th August, 2015 but the Respondent did not appear in spite of receipt of Notice again.

6…. Respondent deserted the Appellant about 17 years back and she refused to come back and live with him...threatened the Appellant in the year 2005 that she would get a criminal case filed against him if he did not stop attempts to get the divorce. ..

The Appellant and the Respondent have been living apart due to matrimonial discord since 17 years and for all practical purposes the marriage has broken down.

7…… This conduct of the Respondent by itself would indicate that she is not interested in living with the Appellant.

Refusal to participate in proceeding for divorce and forcing the appellant to stay in a dead marriage would itself constitute mental cruelty.

Without entering into the disputed facts of the case, we are of the opinion that there is no likelihood of the Appellant and the Respondent living together and for all practical purposes there is an irretrievable breakdown of the marriage.

8. This court in a series of judgments has exercised its inherent powers under Article 142 of the Constitution for dissolution of a marriage where the Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted.

Admittedly, the Appellant and the Respondent have been living separately for more than 17 years and it will not be possible for the parties to live together and there is no purpose in compelling the parties to live together in matrimony.

The daughter of the Appellant and the Respondent is aged about 24 years and her custody is not in issue before us. In the peculiar facts of this case and in order to do complete justice between the parties, we allow the Appeal in exercise of our power under Article 142 of the Constitution of India, 1950.

9. For the aforementioned reasons, the Appeal is allowed and the application for divorce filed by the Appellant under Section 27 of the Act is allowed.

IN THE SUPREME COURT OF INDIA
NON-REPORTABLE
SUKHENDU DAS .... Appellant Versus RITA MUKHERJEE .... Respondent
CIVIL APPELLATE JURISDICTION, CIVIL APPEAL No. 7186 of 2016
Bench: [ N Rao], [ Bobde]
Dated: 09 October, 2017

{N} If there is death of a family member the other family members can obtain death certificate, per provisions of law.

If there is death of marriage itself (wedlock) then People should be able to marry again, by removing the deadlock.

If the divorce (death certificate of dead marriage) can be granted by court of law then to provide adequate provisions in Law in line with need of Modern Times is duty of elected representatives and legislature.

The legislature should do enough to remove the deadlock. The eye-opener judgments mentioned above must be read carefully. The objection that irretrievable breakdown as a ground of divorce is vague has been already dealt with by the Apex Court.

Even if the legislature has not included 'Irretrievable Breakdown of Marriage' as ground of divorce, in Sec 13 of Hindu Marriage Act, 1955, as per the long felt need of public and recommendation of courts of law, the Apex Court has delivered 'Complete Justice'

Although there is NO direction in the recent judgment 'SUKHENDU DAS Vs RITA MUKHERJEE' to lower Courts and it cannot be since the authority as per Art.142, rests with the Apex Court, The Apex Court has opened the doors by declaring If Spouse is unwilling to stay together but bent to keep other Spouse tied in Dead Marriage, then it is also 'Cruelty' and forcing the appellant to Stay in a Dead Marriage would itself constitute 'Mental Cruelty'

If the wedlock has broken the deadlock should also be broken.

The courts may examine the matters of frustrated spouses in frustrated wedlock before it, on such grounds.

However: The courts shall look at many parameters e.g.; Temperament, Conduct, Demeanor of spouses, evidence of Fault, Guilt lies on side of which spouse; appellant or respondent (Husband or Wife), and disharmony, diffusion and disintegration of marital unity.

The spouses that claim to be trapped in dead wedlock due to fault of other spouse should avoid racing to courts empty handed or on presumptions, i.e. without sufficient evidence of his/her innocence and evidence of fault and guilt of other spouse as court can disappoint and decline to dissolve the marriage.

The spouse that approaches the court with his/her innocence and irrefutable evidence of fault and guilt of other spouse can expect 'Complete Justice' from courts of Law.

 

Kumar Doab 
on 18 October 2017
Published in Family Law
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