IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
[S.A. BOBDE] AND [L. NAGESWARA RAO] JJ.
OCTOBER 09, 2017
CIVIL APPEAL No. 7186 of 2016
SUKHENDU DAS …. Appellant
RITA MUKHERJEE …. Respondent
J U D G M E N T
L. NAGESWARA RAO, J.
- The Appellant and a Respondent are District Judges operative in a State of West Bengal. Their wedlock was achieved on 19th June, 1992 as per a Special Marriage Act, 1954 (hereinafter referred to as “the Act”). A lady child was innate out of a nuptials on 14th April, 1993. There was matrimonial conflict between a Appellant and a Respondent and they were vital alone given a year 2000. The Appellant filed an focus underneath Section 27 of a Act seeking a divorce.
- The Appellant purported that a differences arose given of a crude function of a Respondent in not display due honour to his bum father. It was serve purported that a Respondent forlorn him and refused to give a control of a child to him. The Appellant serve averred in a focus that a Respondent did not revisit him even when he was severely ill. The Respondent is indicted of regulating unstinting denunciation and melancholy a Appellant with filing of rapist cases if he perused a petition for divorce that he due in a year 2005.
- The Respondent filed a created matter denying a allegations done in a focus filed by a applicant for divorce. She refuted all a averments in a focus and sought for exclusion of a focus for divorce. The Respondent did not attend in a record before a hearing probity after filing a created statement. The Chief Judge, City Civil Court, Calcutta by a visualisation antiquated 6th August, 2009 discharged a focus for divorce. The Appeal filed opposite a pronounced visualisation was discharged by a High Court of Calcutta on 4th April, 2012. The Respondent did not find to seem before a High Court also. The exactness of a visualisation of a High Court is assailed in a above Appeal.
- After referring to a pleadings in a case, a hearing probity found that a Appellant unsuccessful to infer cruelty on a partial of a Respondent. The justification adduced by a Appellant was scrutinized by a hearing probity to come to a end that a Appellant did not make out a box for divorce. The High Court, holding note of a fact that a Appellant and a Respondent are legal officers, done an try for conciliation between a parties. However, in annoy of a bid of a High Court, both a Appellant and a Respondent did not seem privately before a High Court. Despite holding note of a fact that a Appellant and a Respondent were vital alone given a year 2000, a High Court discharged a Appeal by holding that unrecoverable relapse of wedlock can't be a belligerent for divorce. The High Court hold that a Appellant unsuccessful to infer mental cruelty on a partial of a Respondent.
- Notice was released to a Respondent on 8th October, 2012 to try a probability of an gentle fortitude to a matrimonial dispute. The parties were destined to seem before a Mediation Centre of a Supreme Court on 21st November, 2012. The Respondent did not seem before a Mediation Centre in annoy of use of a Notice. She chose not to seem before this Court. Fresh Notice was systematic on 17th August, 2015 though a Respondent did not seem in annoy of receipt of Notice again.
- Mr. Raja Chatterjee, schooled warn appearing for a Appellant submitted that a Respondent forlorn a Appellant about 17 years behind and she refused to come behind and live with him. Apart from a claim of desertion, a schooled warn also purported mental cruelty on a partial of a Respondent who threatened a Appellant in a year 2005 that she would get a rapist box filed opposite him if he did not stop attempts to get a divorce. The schooled warn serve submitted that a Appellant and a Respondent have been vital detached due to matrimonial conflict given 17 years and for all unsentimental functions a wedlock has damaged down.
- The Respondent, who did not seem before a hearing probity after filing of created statement, did not respond to a ask done by a High Court for personal appearance. In annoy of use of Notice, a Respondent did not uncover any seductiveness to seem in this Court also. This control of a Respondent by itself would prove that she is not meddlesome in vital with a Appellant. Refusal to attend in move for divorce and forcing a appellant to stay in a passed wedlock would itself consecrate mental cruelty [Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 [para101 (xiv)]]. The High Court celebrated that no try was done by possibly of a parties to be posted during a same place. Without entering into a doubtful contribution of a case, we are of a opinion that there is no odds of a Appellant and a Respondent vital together and for all unsentimental functions there is an unrecoverable relapse of a marriage.
- This probity in a array of judgments has exercised a fundamental powers underneath Article 142 of a Constitution for retraction of a wedlock where a Court finds that a wedlock is totally unworkable, emotionally dead, over deliver and has damaged down irretrievably, even if a contribution of a box do not yield a belligerent in law on that a divorce could be postulated [Manish Goel v. Rohini Goel, (2010) 4 SCC 393 [para 11]]. Admittedly, a Appellant and a Respondent have been vital alone for some-more than 17 years and it will not be probable for a parties to live together and there is no purpose in constrained a parties to live together in wedlock [Rishikesh Sharma v. Saroj Sharma, (2007) 2 SCC 263 [para 4 and 5]]. The daughter of a Appellant and a Respondent is aged about 24 years and her control is not in emanate before us. In a rare contribution of this box and in sequence to do finish probity between a parties, we concede a Appeal in practice of a energy underneath Article 142 of a Constitution of India, 1950.
- For a aforementioned reasons, a Appeal is authorised and a focus for divorce filed by a Appellant underneath Section 27 of a Act is allowed.