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Cruelty if Forced to stay together



CIVIL APPEAL No. 7567 of 2004

Satish Sitole …Appellant
Smt. Ganga …Respondent



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 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 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 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.

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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
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
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.

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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
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
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
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.

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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

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
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

Altamas Kabir
Aftab Alam

New Delhi

Dated: July 10,2008

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