Divorce On Grounds Of Cruelty And Desertion

CASE NO.:Appeal (civil) 5184 of 2005
PETITIONER:Durga Prasanna Tripathy
RESPONDENT:Arundhati Tripathy

DATE OF JUDGMENT: 23/08/2005
BENCH:Ruma Pal & Dr. AR. Lakshmanan

JUDGMENT:J U D G M E N T
(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
respondentwife
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

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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

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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 inlaws
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 extraordinary
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.

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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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