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Judgments of Supreme Court of India and High Courts

Disha Kushwaha vs Rituraj Singh on 1 October, 2019

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HIGH COURT OF MADHYA PRADESH

******

Division Bench : Hon’ble Shri Justice J.K. Maheshwari
Hon’ble Smt. Justice Anjuli Palo

******

First Appeal No.653/2016
Disha Kushwaha

-Versus-

Rituraj Singh

Writ Petition No. 5967/2015
Ritu Raj Singh
v.

Smt. Disha Kushwaha (Singh)

M.Cr.C. No. 16660/2015
Ritu Raj Singh
v.

Smt. Disha Singh others

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Shri Praveen Dubey, Advocate for husband Ritu Raj Singh.

Shri Ankit Saxena, Advocate for wife Smt. Disha Kushwaha.

*******

(J UD G M E N T)
(1.10.2019)

As per : J.K.Maheshwari, J.-

1. This judgment shall govern the disposal of all the aforesaid three

cases which are filed by the either parties on matrimonial issues like

divorce, restitution of conjugal rights, maintenance pendente lite or
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grant of regular maintenance. However, they are being heard and

decided by this common order.

2. The first appeal is filed by the appellant-wife under Section 19 of

the Family Courts Act being aggrieved by the judgment and decree

dated 02.09.2016 passed in Civil Suit No.828-A/2014 by First Additional

Principal Judge, Family Court, Bhopal granting decree of divorce on a

suit filed by the respondent-husband under Section 13 (1) of the SectionHindu

Marriage Act. The appellant wife has also assailed the judgment passed

in Civil Suit No.464-A/2015 filed by her for restitution of conjugal rights

against the respondent which was dismissed by the same order. W.P. No.

5967/2015 has been filed by the husband against grant of maintenance

pendente lite vide order dated 5.1.2015 passed in R.C.S. No. 828-

A/2014; and M.Cr.C. No. 16660/2015 has been filed by the husband

under Section 482 of the Cr.P.C. for setting aside of the order dated

12.1.2015 passed in M.J.C. No. 450/2014 granting maintenance of Rs.

35,000/- to the wife.

3. The facts of the case, in brief, are that the appellant is legally

wedded wife of the respondent. The marriage was solemnized on

06.02.1999 as per Hindu rituals. They are having three children by the

said wedlock i.e. twin daughters and a son. The appellant along with

the children is residing separately from the respondent since February,

2013 and they are litigating in the Court by filing various Court cases.

Still the wife wish to reside with the husband but he is not ready to live

with wife alleging her cruelty.

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4. The respondent husband filed a suit under Section 13 of the

Hindu Marriage Act inter alia pleading that immediate after the

marriage the appellant wife ill-treated him, having fit of anger and she

use to lose her tamper and abuse him. She also doubted on his

character alleging his illicit relation with several women out of which

some are co-workers in the same department and office. The appellant-

wife use to quarrel with the neighbours, due to which he took transfer

from the State of Arunachal Pradesh to Andaman Nicobar. Even by

passage of time, there was no change in her behavior and she did not

care to maintain the dignity and reputation of the respondent. It is also

alleged that she use to propagate, the respondent is a corrupt man and

threatened him to file a criminal case, thereby he would lose his job. In

recent past he joined on an important administrative post in All India

Institute of Medical Sciences, Bhopal. But due to intolerable behaviour

of the appellant, he is living separately in the guest house of the AIIMS

since February, 2013. While the appellant and his children are residing

in his official accommodation. The husband alleged that the appellant

made all efforts to harass and torture him. The respondent alleged that

the appellant-wife believes in performing witchcraft and also alleged

that mother and sister of the respondent have controlled by witchcraft.

At several occasion, in front of the senior officials after reaching office,

the appellant insulted the respondent. It is said, there is no possibility of

change in her behavior, however, as per the said averments, on the

ground of cruelty, the respondent-husband prayed for dissolution of

marriage.

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5. On filing the written statement, before the Family Court the

appellant-wife has denied all the allegations and pleaded that after the

marriage her husband and his family members regularly pressurized the

appellant to bring dowry. They have mentally and physically tortured

her due to non-fulfillment of dowry demand. As per the appellant, the

respondent husband is drunkard and on consuming liquor he use to

beat the appellant to bring Rs.25 Lakh and once her clothes were burnt.

On 20th August, 2004, the appellant gave birth to twin (daughters). All

expenses of delivery were born by the parents of the appellant. The

family members of the respondent-husband were not happy due to birth

to two female children. It is said, the ill-treatment of respondent

husband continued till 2012. Thereafter appellant gave birth to a male

child on 19.12.2012. In January, 2013, the respondent was transferred

to AIIMS, Bhopal as Deputy Director, at that time appellant-wife along

with the children came Bhopal and started to reside with respondent-

husband in Government Quarter situated in AIIMS campus. But at

Bhopal in evening the respondent after taking liquor use to beat and

made attempt to oust her from the house. When the appellant refused to

leave the house, the respondent himself started living separately in the

guest house of the AIIMS situated in the same premises. In view of the

foregoing, the appellant prayed for dismissal of the suit preferred by the

respondent under Section 13 (1) of the SectionHindu Marriage Act.

6. The appellant also filed a suit (Civil Suit No.464-A/2015) seeking

restitution of conjugal rights under Section 9 of the Hindu Marriage Act

interalia stating that without sufficient reason the respondent husband
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is living separately and claiming divorce from her to avoid liability to

maintain the wife and children. It is said, the Court granted Rs.40,000/-

maintenance pendente lite to the respondent and to the children in

Case No.828-A/2014 filed by the appellant. Against which W.P. No.

5967/2015 has been filed which is pending. The respondent had an

agricultural land admeasuring 3.16 acres at Village-Badla, Block-

Sanchi, District-Raisen but he deliberately with lack of bonafide

transferred the same in favour of his mother without any consideration.

The appellant-wife believes and having hope that her relation with the

respondent husband may be improved by passage of time, however,

prayed for the decree of restitution of conjugal rights.

7. In reply to it, the respondent denied all the allegations of the

plaint and taking the same plea as taken in his suit for divorce, prayed

for dismissal of the suit for restitution of conjugal rights filed by the

wife.

8. Learned trial Court dismissed the suit filed by the appellant-wife

under Section 9 of the Hindu Marriage Act, recording the finding that

averments made in the suit has not been proved. It is said, without

sufficient cause, wife is residing separately from the husband.

Simultaneously, the trial Court found that the appellant do not agree for

divorce yet it has been proved that she treated her husband with

cruelty levelling the allegations on his character and tarnishing his

reputation in the office, which is amounting to mental cruelty.

Therefore, the marriage between the parties has irretrievably broken

down, however granted the decree of divorce. The trial Court also
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awarded Rs.5 Lakh towards the expenses of study and other needs of

the minor children and to the appellant towards permanent alimony.

9. The appellant wife has challenged the adverse findings on the

grounds that the impugned judgment and decree are perverse and

erroneous therefore, unsustainable in law. The trial Court committed

error to held that the cruelty is perpetuating from both side, therefore,

the marriage has broken down irretrievably. It is said that such decree

can be granted by Hon’ble the Supreme Court only as has been held in

the case of SectionPuja Suri v. Bijoy Suri (decided on 26th May, 2016 in

Second Appeal No.258/2012 by High Court of SectionAllahabad) and Naveen

Kohli v. Neelu Kohli reported in (2006) 4 SCC 558. It is further

contended that the trial Court committed error in dismissing the suit

filed by the appellant-wife seeking restitution of conjugal rights due to

the finding of mental cruelty and to declare the break down of marriage

irretrievably. However, urged allowing the appeal, the decree of divorce

granted in favour of the respondent-husband and dismissal of the suit of

restitution of conjugal rights, may be set aside. In alternative, it is

contended that in case this Court is of the opinion that the judgment

and decree passed by the trial Court is in accordance with law, the

amount of permanent alimony, as awarded is inadequate, which may be

reasonably enhanced looking to earning of the husband being IFS

(Indian Forest Services Officer) and the fact that the appellant-wife is

residing separately with three school going children and grant them

permanent alimony looking to the status of her husband.
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10. Learned counsel appearing for the respondent-husband has

strenuously urged that it is a case in which the respondent-husband was

subjected to mental cruelty, as reveal from the evidence brought on

record. However, trial Court granted decree of divorce, holding that

there is no possibility of reunion of spouse, who are residing separately

since a long, therefore, the marriage has been irretrievably broken

down and possibility of restitution or reunion is bleak. In view of the

said fact looking to the evidence on record in support of the pleadings,

the findings as recorded by the trial Court do not warrant interference

in this appeal. It is also argued that the maintenance by way of

permanent alimony as granted, is in accordance with law, which may

not be enhanced.

11. After hearing learned counsel for the parties and on perusal of the

pleadings, evidence and the findings recorded by the trial Court

granting divorce, is mainly perceivable on proving the mental cruelty of

the wife due to which reunion of parties is not possible. The Court

observed either the appellant-wife or the respondent-husband both have

acted unbecoming to each other causing mental cruelty, however,

continuation of their marital relationship is not possible, thus held that

it is a case of irretrievable break down of marriage, hence granted

decree of divorce, dismissing the suit for restitution of conjugal right.

12. To advert the contentions and the grounds raised, it is not out of

place to mention that irretrievable breakdown of marriage is not the

ground seeking decree of divorce under SectionHindu Marriage Act. But the

said ground has been recognized by Hon’ble the Apex Court while
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dealing with the facts and circumstances of the individual case in which

continuation of the marriage or reunion even after passing the order of

restitution of conjugal rights is not possible to the spouse by living

together and their life violated the purpose to which the marriage was

set up. Therefore, to deal the issue of irretrievable break down of

marriage, first of all we have to understand the history and concept of

irretrievably breakdown of marriage.

What Is Marriage

13. For understanding the irretrievable breakdown of marriage, first

we have to understand what is marriage. According to Vedas, marriage

is a union between a masculine and feminine entity with commitment to

pursue Dharma, Artha (possessions), Kama (physical and other desires)

and Moksha (the liberation) in unison. In legal terminology, under the

statute, as per Corpus Juris Secundam, marriage is a contract under

which a man and a woman reciprocally engage to live with each other

during their joint lives, and to discharge toward each other the duties

imposed by law on the relation of husband and wife. The marriage is

generally considered a civil contract differing in notable respects from

ordinary contract, but it is specially a status or personal relation in

which the state is deeply concerned and over which the state exercises

exclusive dominion. The marriage signifies, the act by which a man and

woman unite for life, with intent to discharge towards society and to

one another those duties, which result from the relation of husband and

wife and to this, the term ‘marriage’ is most frequently applies. Thus as
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per Hindu mythology and as per legal terminology, the concept of

marriage is different but its usages is the same.

14. In view of the aforesaid, looking to the definition of marriage as

per Vedas, it is a union based on commitment to pursue Dharma which

signifies from trust in between tolerance to each other, adjustment and

respect to one another, even to the faults of each other tolerance to

certain bearable extent. Artha indicates the possession to each other

signifying common life, happiness, miseries faced in life, possessing joy

and miseries by each other in Union. Kama indicates fulfillment of

physical and other desires of masculine and feminine gender while

Moksha is indicative of the liberation from the life achieving ultimate

object from where either the man or woman have been brought on

earth.

15. If we see marriage in legal perspective then it is a contract by

reciprocally engaging the man and woman jointly in life and to

discharge the duties imposed on them being the husband and wife. The

said contract gives special status of personal relations in a family or in a

society having deep concern with each other. Thus, by way of marriage

the unity of life, to form a relation of husband and wife, signifies. Once

it accomplishes, marriage ceases itself.

Irretrievable Break Down of Marriage

Its Meaning, History Concept

16. Concept of irretrievable breakdown of marriage requires its

emphasis from its meaning and the place and time wherefrom it has

emerged. The word ‘irretrievable’ is antonym to the word ‘retrievable’.
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As per Oxford English Dictionary, retrievable is a noun which means

Origin Me: from Ofr. Retroeve, stressed stem of retrover ‘find again’. It

may be understood from the word ‘retrieve’, which means find and

bring back; put right or improve, find or extract. As per verbal meaning

it denotes the thing which was not in order or lost, has come back in its

revival would retrieve. In view of the above, word irretrievable is an

adjective and indicative to the fact ‘not able to be retrieved, means the

things were lost in past, now cannot be revived. As per Cambridge

English Dictionary; a couple separated on the ground of irretrievable

breakdown (of their marriage). However, the phrase ‘irretrievable

breakdown’ has been used on cessation of marriage and when its

revival is not possible. Thus, it can safely be clarified that a marriage

resumes religious character but under a legal perspective a contract

giving special status to spread in society establishing family virtues.

Once its continuation is not possible, it would fall within irretrievable

breakdown.

17. The concept of irretrievable breakdown of marriage as ground of

divorce, came from commonwealth countries. First time in the New

Zealand, the Divorce and Matrimonial Causes Act, 1920 was brought

including the provision of Separation Agreement for a period of 3 years

or more. It was made out a ground to make petition to the Court for

irretrievable breakdown of marriage. In the case of Lodder vs. Lodder

1921 NZLR 876, Salmond J, in a passage which has now become

classic, enunciated the breakdown principle in the following words:-

“The legislature must, I think, be taken
to have intended that separation for three
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years is to be accepted by this Court, as prima
facie a good ground for divorce. When the
matrimonial relation has for that period
ceased to exist de facto, it should unless there
are special reasons to the contrary, cease to
exist de jure also. In general, it is not in the
interests of the parties or in the interest of the
public that a man and woman should remain
bound together as husband and wife in law
when for a lengthy period they have ceased to
be such in fact. In the case of such a
separation the essential purposes of marriage
have been frustrated, and its further
continuance is in general not merely useless
but mischievous.”

18. In the history of irretrievable breakdown of marriage the

Matrimonial Causes Act, 1959 of the Commonwealth of Australia

provides for divorce as the ground to breakdown of marriage. In this

context, the breakdown situation exists when either or both spouse are

no longer able or wiling to live with each other, thereby destroying their

husband and wife relationship with no hope of resumption of spousal

duties. In other words, it can be defined as failure in the matrimonial

relationship or such circumstances adverse to that relationship that no

reasonable probability remains to the spouses to live together as

husband and wife by mutual comfort and support. It also signifies the

breakdown in the cases where neither party is at fault or fault is of such

a nature that neither party wishes to divulge it and yet the marriage has

ceased to exist; Meaning thereby the irretrievable breakdown of

marriage, refers to a situation where the emotional bonds, respect to

each other, trust etc, which is the very foundation of a marriage have
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disappeared and only a facade in the name of marriage remains. Thus

Australian Law Commission concluded that where a marriage has

ceased to exist both in substance and in reality, divorce has to be taken

as a solution to escape from a difficult situation of human being.

19. In the USSR, initially granting the divorce was very liberal and it

was called as “Post Card Divorce”. The family instability led to the

tightening of the divorce conditions lately bringing the breakdown of

marriage irretrievably. Similarly in the Canadian Divorce Act 1967-68

irretrievable breakdown of marriage is recognized as a ground of

divorce, apart from the normal fault ground.

20. In commonwealth country in England, the theory of irretrievable

breakdown was opened up in the case of Masarati Vs. Masarati

reported in (1969) 1 WLR 392, where both the parties to the marriage

had committed adultery. The Court of appeal on its petition for divorce

observed it as a breakdown of marriage. Thereafter Law Commission of

England in its report said, “the objectives of good divorce law are two:

first to buttress rather than to undermine the stability of marriage and

second, when regrettably a marriage has broken down, to enable the

empty shell to be destroyed with maximum fairness and minimum

bitterness, humiliation and distress. On the basis of the said report of

Law Commission and the recommendation in England, irretrievable

breakdown of marriage was made the ground for divorce. Sections 1

and 2 of the Matrimonial Causes Act, 1973 which is relevant, however,

reproduced as under:-

1. (1) Subject to Sectionsection 3 below, a petition
for divorce may be presented to the court by
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either party to a marriage on the ground that
the marriage has broken down irretrievably.

(2) The court hearing a petition for divorce
shall not hold the marriage to have broken
down irretrievably unless the petition satisfies
the court of one or more of the following facts,
that is to say-

(a) that the respondent has committed adultery
and the petition finds it intolerable to live with
the respondent;

(b) that the respondent has behaved in such a
way that the petitioner cannot reasonably be
expected to live with the respondent;

(c) that the respondent has deserted the
petitioner for a continuous period of at least
two years immediately preceding the
presentation of the petitioner;

(d) that the parties to the marriage have lived
apart for a continuous period of at least two
years immediately preceding the presentation
of the petition (hereafter in this Act referred to
as “two years” separation”) and the respondent
consents too a decree being granted;

(e) that the parties to the marriage have lived
apart for a continuous period of at least five
years immediately preceding the presentation
of the petition (hereafter in this Act referred to
as “five years” separation”)

(3) On a petition for divorce it shall be the duty
of the court to inquire, so far as it reasonably
can, into the facts alleged by the petition and
into any facts alleged by the respondent.

(4) If the court is satisfied on the evidence of
any such fact as is mentioned in subsection (2)
above, then, unless it is satisfied on all the
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evidence that the marriage has not broken
down irretrievably, it shall, subject to Sectionsections
3(3) and Section5 below, grant a decree of divorce.

(5) Every decree of divorce shall in the first
instance be a decree nisi and shall not be made
absolute before the expiration of six months
from its grant unless the High Court by general
order from time to time fixes a shorter period,
or unless in any particular case the court in
which the proceedings are for the time being
pending from time to time by special order fixes
a shorter period than the period otherwise
applicable for the time being by virtue of this
subsection.

2.- (1) One party to marriage shall not be
entitled to rely for the purposes of Sectionsection 1(2)

(a) above on adultery committed by the other if,
after it became known to him that the other had
committed that adultery, the parties have lived
with each other for a period exceeding, or
periods together exceeding, six months.

(2) Where the parties to a marriage have lived
with each other after it became known to one
party that the other had committed adultery,
but subsection (1) above does not apply, in any
proceedings for divorce in which the petitioner
relies on that adultery the fact that the parties
have lived with each other after that time shall
be disregarded in determining for the purposes
of Sectionsection 1(2)(a) above whether the petitioner
finds it intolerable to live with the respondent.

(3) Where in any proceedings for divorce the
petitioner alleges that the respondent has
behaved in such a way that the petitioner
cannot reasonably be expected to live with him,
but the parties to the marriage have lived with
each other for a period or periods after the date
of the occurrence of the final incident relied on
by the petitioner and held by the court to
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support his allegation, that fact shall be
disregarded in determining for the purposes of
Sectionsection 1(2)(b) above whether the petitioner
cannot reasonably be expected to live with the
respondent if the length of that period or of
those periods together was six months or less.

(4) For the purposes of Sectionsection 1(2)(c) above
the court may treat a period of desertion as
having continued at a time when the deserting
party was incapable of continuing the necessary
intention if the evidence before the court is
such that, had that party not been so incapable,
the court would have inferred that his desertion
continued at that time.

(5) In considering for the purposes of Sectionsection
1(2) above whether the period for which the
respondent has deserted the petitioner or the
period for which the parties to a marriage have
lived apart has been continuous, no account
shall be taken of any one period (not exceeding
six months) or of any two or more periods (not
exceeding six months in all) during which the
parties resumed living with each other, but no
period during which the parties lived with each
other shall count as part of the period of
desertion or of the period for which the parties
to the marriage lived apart, as the case may be.

(6) For the purposes of Sectionsection 1(2)(d) and (e)
above and this section a husband and wife shall
be treated as living apart unless they are living
with each other in the same household, and
references in this section to the parties to a
marriage living with each other shall be
construed as references to their living with
each other in the same household.

(7) Provision shall be made by rules of court for
the purpose of ensuring that where in
pursuance of Sectionsection 1(2)(d) above the
petitioner alleges that the respondent consents
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to a decree being granted the respondent has
been given such information as will enable him
to understand the consequences to him of his
consenting to a decree being granted and the
steps which he must take to indicate that he
consents to the grant of a decree.

In the backdrop of the aforesaid provisions based on different

foreign countries wherein long desertion of the spouse with other

committing cruelty (physical or mental), living adulterous life and on so

many other reasons were recognized by the statute as grounds for

divorce which is known as irretrievable breakdown of marriage.

21. But in India, it has not been recognized as a ground for divorce in

the statute Book. The Law Commission of India after experiencing the

pendency of matrimonial cases, complicity, non-adjustment, vulgarity in

relation between the spouse thought it appropriate to recommend the

same as a ground for divorce. The Law Commission of India in Chapter

III of its 71st Report made such recommendation first time. As per the

said report also the theory of irretrievable breakdown first came from

New Zealand. General Assembly of Church of Scotland, based on the

report of their Moral and Social Welfare Board, which suggested the

substitution of breakdown in place of matrimonial offences. They

classified it as a matrimonial fault. The proposal for it was based on the

following recommendations which is relevant, therefore, reproduced as

under:-

“Matrimonial offences are often the
outcome rather than the cause of the
deteriorating marriage. An accusatorial
principle of divorce tends to encourage
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matrimonial offences, increase bitterness
and widen the rigt that is already there.
Separation for a continuous period of at
least two years consequent upon a
decision of at least one of the parties not
to live with the other should act as the
sole evidence of marriage breakdown.

22. The Law Commission said that once the parties have separated,

which continued for a sufficient length of time and one of them

presented the petition for divorce, it can very well be presumed that the

marriage has broken down. The Court, no doubt, should endeavour to

reconcile, the parties; yet if it is found that the breakdown is

irretrievable then divorce should not be withheld. Meaning thereby the

consequences of preservation in law of the unworkable marriage which

has long ceased to be effective are bound to be a source of greater

misery for the parties. In chapter IV of the said report, the merits and

demerits of irretrievable breakdown of marriage was considered and

the Commission observed that the grounds contained in SectionHindu

Marriage Act even after the amendment 1976 do not specially deal with

irretrievable breakdown of marriage. No doubt, some of the amendment

taken into account necessary implications of it as a relevant factor but it

was not a ground specified in the Act. The Commission says the

irretrievable breakdown of marriage may be a ground for divorce even

if one of the spouse does not join together in filing of the petition or

even opposes such a petition. It is observed that living apart of the

husband and wife for a sufficient long time would be presumptive proof

of breakdown of marriage but it is not a ground in the existing law to
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make such eventuality. While making such recommendation, it was

observed that it would obviate the necessity of washing dirty linen of

marital life. Even after the said recommendation made on 7.4.1978 by

Chairman of the Law Commission, Government of India, it was not

made a ground for divorce.

23. The Law Commission of India while discussing the concept of

irretrievable breakdown of marriage in its 217 th report, said that the

foundation of a sound marriage is tolerance, adjustment and respecting

one another. Tolerance to each other’s fault to a certain bearable extent

has to be inherent in every marriage. Petty quibbles, trifling differences

should not be exaggerated and magnified to destroy what is said to have

been made in heaven. All quarrels must be weighed from the point of

view in determining what constitutes cruelty in each particular case and

as noted above, always keeping in view the physical and mental

conditions of the parties, their character and social status. A too

technical and hyper- sensitive approach would be counter-productive to

the institution of marriage. Thus, in the said report also

recommendation was made that irretrievable break down may be a

ground for divorce.

India Case Laws on Irretrievable Breakdown

24. The Apex Court first time in the case of Jordan Diengdeh Vs.

S.S. Chopra reported in 1985 AIR 935 considered the issue of

irretrievable breakdown of marriage as a ground for divorce. The Court

explaining the situation as prevalent under Hindu Law, Mohammedan

Law and other customs observed as under:-

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“it is thus seen that the law relating to
judicial separation, divorce and nullity of
marriage is far, far from uniform. Surely the
time has now come for a complete reform of
the law of marriage and make a uniform law
applicable to all people irrespective of
religion or caste. It appears to be necessary
to introduce irretrievable break down of
marriage and mutual consent as grounds of
divorce in all cases. The case before us is an
illustration of a case where the parties are
bound together by a marital tie which is
better untied. There is no point or purpose to
be served by the continuance of a marriage
which has so completely and signally broken
down. We suggest that the time has come for
the intervention of the legislature in these
matters to provide for a uniform code of
marriage and divorce and to provide by law
for a way out of the unhappy situations in
which couples like the present have find
themselves in. We direct that a copy of this
order may be forwarded to the Ministry of
Law and Justice for such action as they may
deem fit to take. In the meanwhile, let notice
go to the respondents.”

25. Thereafter, the Apex Court in the case of V. Bhagat Vs. D.

Bhagat (Mrs.) reported in (1994) 1 SCC 337 while dealing with the

case of cruelty, in specific mental cruelty, the marriage was declared as

dissolved in view of the irretrievable breakdown of marriage in the

peculiar circumstances of the case. The Court in Para 20 while

examining the allegation made by the parties observed as under:-

“20. ………………….She is fully aware that
the marriage is long dead and over. It is her
case that the petitioner is genetically
insane. Despite all that, she says that she
wants to live with the petitioner. The
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obvious conclusion is that she has resolved
to live in agony only to make life a
miserable hell for the petitioner as well.
This type of callous attitude in the context
of the facts of this case, leaves no manner of
doubt in our mind that the respondent is
bent upon treating the petitioner with
mental cruelty. It is abundantly clear that
the marriage between the parties should be
dissolved under Section 13(1)(i-a) of SectionHindu
Marriage Act and we do so accordingly.
Having regard to the peculiar facts and
circumstances of this case and its progress
over the last eight years- detailed
hereinbefore- we are of the opinion that it is
a fit case for cutting across the procedural
objections to give a quietus to the matter.”

26. The Apex Court in Sandhya Rani Versus Kalyanram

Narayanan reported in 1994 Supp (2) SCC 588 though in a crisp but

on concrete basis due to living of parties separately from last more than

3 years and having no chance to come together observed granting the

decree as under:-

1. We have heard the parties in person.
Learned counsel for the parties have also
assisted us. It is not disputed that the
parties are living separately for the last
more than three years. We have no doubt in
our mind that the marriage between the
parties has irretrievably broken down.
There is no chance whatsoever of their
coming together. The parties have made
joint request for mutual divorce. The
written request by the parties has been
placed on the record. In order to do
complete justice between the parties, we
are inclined to grant decree in divorce on
the following agreed terms:

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“1. The respondent Kalyanram Narayanan
gives up all his claims in respect of plot No.
119 in V.G.P. Pushpa Nagar which is in the
name of the petitioner Sandhya Rani. The
said plot measures 3200 sq. yds.;

2. Two-third share in the said plot shall go
to Kartak Narain son born out of wedlock.
The remaining 1/3 share shall be owned by
the petitioner Sandhya Rani;

3.the title deed in respect of the property
has been handed over to the petitioner
Sandhya Rani; and

4. The petitioner Sandhya Rani shall not
claim any maintenance past or future, for
herself or for her son Kartak Narain from
the respondent.”

2. We grant decree for divorce in the above
terms. The Divorce Petition No. O.P. 1019 of
1992 filed by the respondent (husband)
pending before the Principal Family Court,
Madras shall stand disposed in the above
terms. No costs.

27. In Kanchan Devi (Smt.) Vs. Promod Kumar Mittal and

another reported in (1996) 8 SCC 90, the Apex Court found that the

parties were living separately for last more than 10 years and there is

no possibility of reconciliation. On being found by the parties that the

marriage has been irretrievably brokedown, they mutually agreed to

dissolve the marriage. The Apex Court has observed as under:-

3. During the pendency of the proceedings
in this Court, an effort was made for
reconciliation between the parties. It was
admitted by the learned counsel for the
parties that the parties have not been living
together for the last more than one decade
as husband and wife and their relationship
was totally strained and bitter against each
other. On 7-12-1995, it appeared to us that
there was no possibility of any reconciliation
22

between the parties and that the marriage
between them had irretrievably broken
down. The respondent through his learned
counsel categorically submitted that there
was no possibility of the parties remaining
together as husband and wife and that
position was not disputed by the learned
counsel appearing for the appellant.”

4. XXX XXX XXX

5. XXX XXX XXX

6. In view of the peculiar facts and

circumstances of the case and being satisfied
that the marriage between the appellant and
the respondent has irretrievably broken
down and that there is no possibility of
reconciliation, we in exercise of our powers
under SectionArticle 142 of the Constitution of India
hereby direct that the marriage between the
appellant and the respondent shall stand
dissolved by a decree of divorce.

28. The Apex Court in Ashok Hurra Versus Rupa Bipin Zaveri

reported in (1997) 4 SCC 226 considered the 71st Report of Law

Commission of India and granted decree of divorce relying such

Report. The relevant part of the judgment is reproduced as under:-

Para 24

24. A few excerpts from the Seventy-first
Report of the Law Commission of India on
the SectionHindu Marriage Act, 1955- “Irretrievable
Breakdown of Marriage” – dated 7-4-1978
throw much light on the matter:

“Irretrievable breakdown of marriage
is now considered, in the laws of a number
of countries, a good ground of dissolving the
marriage by granting a decree of divorce.

Proof of such a breakdown would be
that the husband and wife have separated
and have been living apart for, say, a period
23

of five or ten years and it has become
impossible to resurrect the marriage or to
reunite the parties. It is stated that 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 or religion to
obtain annulment of marriage.

The theoretical basis for introducing
irretrievable breakdown as a ground of
divorce is one with which, by now, lawyers
and others have become familiar.

Restricting the ground of divorce to a
particular offence or matrimonial disability,
it is urged, causes injustice in those cases
where the situation is such that although
none of the parties is at fault, or the fault is
of such a nature that the parties to the
marriage do not want to divulge it, yet there
has arisen a situation in which the marriage
cannot be worked. The marriage has all the
external appearances of marriage, but none
of the reality. As is often put pithily, the
marriage is merely a shell out of which the
substance is gone. In such circumstances, it
is stated, there is hardly any utility in
maintaining the marriage as a facade, when
the emotional and other bonds which are of
the essence of marriage have disappeared.

After the marriage has ceased to exist
in substance and in reality, there is no
reason for denying divorce. The parties
alone can decide whether their mutual
relationship provides the fulfillment which
they seek. Divorce should be seen as a
solution and an escape route out of a
difficult situation. Such divorce is
unconcerned with the wrongs of the past,
but is concerned with bringing the parties
and the children to terms with the new
situation and developments by working out
the most satisfactory basis upon which they
24

may regulate their relationship in the
changed circumstances.

Moreover, the essence of marriage is
a sharing of common life, a sharing of all
the happiness that life has to offer and all
the misery that has to be faced in life, an
experience of the joy that comes from
enjoying, in common, things of the matter
and of the spirit and from showering love
and affection on one’s offspring. Living
together is a symbol of such sharing in all
its aspects. Living apart is a symbol
indicating the negation of such sharing. It is
indicative of a disruption of the essence of
marriage- ‘breakdown’ – and if it continues
for a fairly long period, it would indicate
destruction of the essence of marriage-

‘irretrievable breakdown'”.

29. In A. Jayachandra Versus Aneel Kaur reported in (2005) 2

SCC 22, three Judges’ Bench of Supreme Court was having an occasion

to consider the case of divorce on the basis of cruelty including mental

cruelty. While examining the pleadings and the evidence brought on

record, the Court emphasized that the allegation of cruelty is of such

nature in which resumption of marriage is not possible, however,

referring various decisions, the Court observed 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. The

Apex Court in Para-17 has observed as under:-

17. Several decisions, as noted above,
were cited by learned counsel for the
respondent to contend that even if marriage
25

has broken down irretrievably decree of
divorce cannot be passed. In all these cases
it has been categorically held that in
extreme cases the court can direct
dissolution of marriage on the ground that
the marriage had broken down irretrievably
as is clear from para 9 of Shyam Sunder
case. The factual position in each of the
other cases is also distinguishable. It was
held that long absence of physical company
cannot be a ground for divorce if the same
was on account of the husband’s conduct. In
Shyam Sunder case it was noted that the
husband was leading adulterous life and he
cannot take advantage of his wife shunning
his company. Though the High Court held by
the impugned judgment that the said case
was similar, it unfortunately failed to notice
the relevant factual difference in the two
cases. 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.

30. The Apex Court in Durga Prasanna Tripathy Versus Arundhati

Tripathy reported in (2005) 7 SCC 353 taken into consideration

cruelty and desertion as a ground for divorce which resulted into

irretrievable breakdown of marriage. The Apex Court referred the

situation as emerged between the parties and observed as under:-

21. 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
26

respondent is willing to join her husband.

There has been an irretrievable breakdown
of marriage between the appellant and 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 Maila
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 27-3-

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 demeanour of the
witnesses concluded that the appellant had
proved that the respondent is not only cruel
but also deserted him for 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
27

respondent have become strained over
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 afterthought
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 o him and his family had, in
our opinion, no other efficacious remedy but
to approach the Family Court for decree of
divorce.

Thereafter in the same Judgment in Paras 28 and 29, granted

decree of divorce considering the circumstances subject to award of

permanent alimony.

28. The facts and circumstances in the
above three cases disclose that reunion is
impossible. The 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
28

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.

29. 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. 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.

The similar view has been reaffirmed by the Supreme Court in the

case of Vinita Saxena Versus Pankaj Pandit reported in (2006) 3

SCC 778.

29

31. Thereafter the Apex Court in the case of Naveen Kohli Vs.

Neelu Kohli reported in (2006) 4 SCC 558 in a case of cruelty

(physical and mental) has considered the concept of irretrievable

breakdown of marriage has observed that there should be statutory

ground for divorce. The Apex Court referring the 71 st Report of Law

Commission of India observed as under:-

80. The High Court ought to have
considered the repercussions,
consequences, impact and ramifications of
all the criminal and other proceedings
initiated by the parties against each other in
the proper perspective. For illustration, the
High Court has mentioned that so far as the
publication of the news items is concerned,
the status of the husband in a registered
company was only that of an employee and
if any news item is published, in such a
situation, it could not, by any stretch of
imagination be taken to have lowered the
prestige of the husband. In next para 69 of
the judgment that in one of the news items
what has been indicated was that in the
Company Nikhil Rubber (P) Ltd., the
appellant was only a director along with
Mrs. Neelu Kohli who held 94.5% shares of
Rs. 100 each in the Company. The news
item further indicated that Naveen Kohli
was acting against the spirit of the article of
association of Nikhil Rubber (P) Ltd. had
caused immense loss of business and
goodwill. He had stealthily removed
produce of the Company, besides diverted
orders of foreign buyers to his
proprietorship firm M/s. Navneet
Elastomers. He had opened the bank
account with forged signatures of Mrs.
Neelu Kohli and fabricated the resolution of
the Board of Directors of the Company.

Statutory authority under the Companies
30

Act had refused to register the documents
filed by Mr. Naveen Kohli and had issues
show-cause notice. All business associates
were cautioned to avoid dealing with him
alone. Neither the Company nor Mrs. Neelu
Kohli shall be liable for the acts of Mr.
Naveen Kohli. Despite the aforementioned
finding that the news item was intended to
caution business associates to avoid dealing
with the appellant then to come to this
finding in the next para that it will by no
stretch of imagination result in mental
cruelty is wholly untenable.

83. Even at this stage, the respondent
does not want divorce by mutual consent.

From the analysis and evaluation of the
entire evidence, it is clear that the
respondent has resolved to live in agony
only to make life a miserable hell for the
appellant as well. This type of adamant and
callous attitude, in the context of the facts
of this case, leaves no manner of doubt in
our minds that the respondent is bent upon
treating the appellant with mental cruelty.
It is abundantly clear that the marriage
between the parties had broken down
irretrievably and there is no chance of their
coming together, or living together again.

84. The High Court ought to have
appreciated that there is no acceptable way
in which the parties can be compelled to
resume life with the consort, nothing is
gained by trying to keep the parties tied
forever to a marriage that in fact has
ceased to exist.

85. Undoubtedly, it is the obligation of
the court and all concerned that the
marriage status should, as far as possible,
as long as possible and whenever possible,
be maintained, but when the marriage is
31

totally dead, in that event, nothing is
gained by trying to keep the parties tied
forever to a marriage which in fact has
ceased to exist. In the instant case, there
has been total disappearance of emotional
substratum in the marriage. The course
which has been adopted by the High Court
would encourage continuous bickering,
perpetual bitterness and may lead to
immorality.

86. In view of the fact that the parties
have been living separately for more than
10 years and a very large number of
aforementioned criminal and civil
proceedings have been initiated by the
respondent against the appellant and some
proceedings have been initiated by the
appellant against the respondent, the
matrimonial bond between the parties is
beyond repair. A marriage between the
parties is only in name. The marriage has
been wrecked beyond the hope of salvage,
public interest and interest of all concerned
lies in the recognition of the fact and to
declare defunct de jure what is already
defunct de facto. To keep the sham is
obviously conducive to immorality and
potentially more prejudicial to the public
interest than a dissolution of the marriage
bond.

87. The High Court ought to have
visualised that preservation of such a
marriage is totally unworkable which has
ceased to be effective and would be greater
source of misery for the parties.

88. The High Court ought to have
considered that a human problem can be
properly resolved by adopting a human
approach. In the instant case, not to grant
a decree of divorce would be disastrous for
32

the parties. Otherwise, there may be a ray
of hope for the parties that after a passage
of time (after obtaining a decree of divorce)
the parties may psychologically and
emotionally settle down and start a new
chapter in life.

On the basis of the same, the Court declared the marriage

dissolved setting aside the judgment of the High Court.

32. In Anil Kumar Jain Vs. Maya Jain reported in (2009) 10 SCC

415, two Judges’ Bench of Supreme Court observed that irretrievable

breakdown of marriage can only be ordered by the Supreme Court in

exercise of power under SectionArticle 142 of the Constitution of India but not

by the High Court. The said view do not find support by the three

Judges’ Bench of the Supreme Court in Naveen Kohli (supra), which

was delivered prior in time but the said judgment was not considered in

Anil Kumar Jain (supra). This Court is bound by three Judges’ Bench

judgment in which the directions were issued to the High Court to

consider the repercussion, consequences, impact and ramification of all

the criminal and other proceedings for the purpose of considering the

issue of irretrievable breakdown of marriage. The Apex Court in the

said case has observed that when the parties are living separately for

sufficiently a long time and one of them brings a suit seeking decree of

divorce, it can be presumed that the marriage has broken down

irretrievably. It will be against the interest of both the parties as well

against the society to refuse to grant the decree of divorce in such

cases. The Court has observed that Parliament is commended to pass
33

such an amended. But in any case, the dissolution of marriage has been

directed.

33. The Apex Court has also considered the said issue in the case of

Rishikesh Sharma Vs. Saroj Sharma reported in (2007) 2 SCC 263

and reiterated the principles of irretrievable breakdown of marriage

thereafter in the case of Samar Ghosh Vs. Jaya Ghosh reported in

(2007) 4 SCC 511, three Judges’ Bench of the Apex Court though

passed the decree on the ground of mental cruelty but the concept of

irretrievable breakdown of marriage has been discussed in detail

referring the 71st Report of Law Commission of India. Similar view has

been taken by the Apex Court in the case of Satish Sitole Vs. Ganga

(Smt.) reported in (2008) 7 SCC 734 taking irretrievable breakdown

of marriage as a concept to divorce and to pass the decree of

dissolution of marriage. The similar is the view taken by the Apex Court

in the case of K. Srinivas Rao Vs. D.A.Deepa reported in (2013) 5

SCC 226 wherein it was observed that though irretrievable breakdown

of marriage is not a ground for divorce under SectionHindu Marriage Act,

however, marriage which is dead for all purposes cannot be revived by

court’s verdict, if parties are now willing since marriage involves human

sentiments and emotions and if they have dried up, there is hardly any

chance of their springing back to life on account of artificial reunion

created by court decree.

34. After examination of the above referred precedents, we can

illustrate the circumstances which may fall within the purview of
34

irretrievable breakdown of marriage, due to which dissolution of

marriage has been considered by the Apex Court:-

(i) From the conduct of the parties looking to the facts and evidence

brought in the Court, if parties are living separately since last more

than five years and not ready to live together losing possibility of their

reunion despite mediation and conciliation, the case may fall within the

purview of irretrievable breakdown of marriage.

(ii) In case the parties are not accepting their faults yet under the

situation marriage cannot work out, marriage has to be struck down

because it s irretrievably broken down.

(iii) If there is no substance in the marital life and the marriage is a

mere shell, out of which the substance is gone, then divorce should be

seen as a solution and an escape route out of a difficult situation and it

would come within the purview of irretrievable breakdown of marriage.

(iv) If divorce is unconcerned with the wrongs of the past, but is

concerned with bringing the parties and the children as a hope of new

situation by working out the most satisfactory basis upon which they

may not be in a position to regulate their relationship even in the

changed circumstances, it would come within the purview of

irretrievable breakdown of marriage.

(v) If the parties have consumed their most of the lives in litigation

and their reunion is impossible and they are living separately for quite

number of years by separation and litigation due to which the dislike for

each boils hotter and when the parties have crossed the point of ‘No

Return’ that can be termed as Irretrievable Breakdown of Marriage.
35

(vi) In cases where one of the spouse decided not to resolve the

dispute and live in agony only to make life miserable, hell for both

husband and wife, this type of adamant and callous attitude, bent upon

treating in mental cruelty, such state of affairs may be classified as

totally a dead marriage and continuation or preservation of such

marriage would encourage continuous bickering, perpetual bitterness

and may lead to immorality. Thus, for this human problem, human

approach is warranted by declaring it as irretrievable breakdown of

marriage.

(vii) Once the marriage has broken down beyond repair and it has

become unrealistic for the law not to take notice of that fact, it would be

harmful to society and injurious to the interest of the parties because it

would show scant regard for the feelings and emotions of the parties. In

such circumstances, marriage may be declared irretrievably broken

down.

(viii) If we see the concept, irretrievable breakdown of marriage,

meaning of marriage recognized by Vedas to maintain Dharma, Artha,

Kama and Moksha, if any of the limb is missing by an act, conduct,

understanding, losing faith, trust in between husband and wife, it would

be called as irretrievable breakdown of marriage.

35. Considering the law laid down by the Apex Court by various

precedents, it is not in dispute that in the said cases, suits were filed

seeking decree of divorce on the ground as specified under the SectionHindu

Marriage Act. While dealing with those grounds and when it has been

proved on the basis of the evidence brought on record, the Apex Court
36

granted decree considering the same and observed, the revival of

marriage between the husband and wife is not possible and ceases its

realistic purpose. The Apex Court has dealt with the concept of

irretrievable breakdown of marriage in which dissolution of marriage

may be directed. The Court relied upon the recommendations of 71 st

Reports of the Law Commission of India and commended the Parliament

to bring it as a ground for divorce or to dissolve the marriage. But in all

the cases, the Court was of the opinion that the parties have suffered

mental cruelty by their conduct and behaviour and not in a position to

continue with marital tie, thus taking, the concept of irretrievable

breakdown of marriage is possibly the right way to spouse. However,

the said concept is in addition to the grounds specified under the SectionHindu

Marriage Act as reveal from Para 80 of the judgment of Naveen Kohli

(supra) the Apex Court observed that the High Court ought to have

considered the repercussions, consequences, impact and ramifications

of all the criminal and other proceedings initiated by the parties against

each other in the proper perspective. Meaning thereby the aforesaid

circumstances are in addition when the revival of marriage is not

possible, therefore, the Judgment of Anil Jain (supra) do not apply to

this case.

36. The Law Commission of India in its 71st and 217th Report, has left

open this issue for the Parliament to bring amendment in the Act

inserting the concept of irretrievable breakdown of marriage as a

ground for divorce and despite commending to the Parliament, the

amendment has not yet been brought but the circumstances may be
37

looked into by the Court in a suit seeking decree of divorce on the

grounds so specified under the SectionHindu Marriage Act, which has not been

expressly ousted to consider by the Courts as reveal by various

precedents of Hon’ble the Supreme Court directly to dissolve the

marriage.

37. SectionUnder the Hindu Marriage Act, the grounds of divorcee have been

specified, which are; if spouse after marriage voluntarily having sexual

intercourse other than spouse; any of the parties treated with cruelty;

deserted for a continuous period of not less than two years; ceased to

be a Hindu by conversion to another religion; the spouse is incurably of

unsound mind or continuously or intermittently suffering from mental

disorder, in which living of husband and wife is not expected; suffering

from leprosy; venereal disease; any spouse has renounced the world by

entering any religious order or has not been heard of as being alive and

other grounds as specified under sub-section (1A) and (2) of of Section

13 of the Hindu Marriage Act. Considering the aforesaid, it can safely

be observed that irretrievable breakdown is not a ground for divorce

but its essence may be put in, to the above said grounds. If we see

various judgments, Hon’ble the Apex Court directed that the Courts are

duty bound to see the repercussion, consequences, impact and

ramification of the criminal and other proceedings and also

circumstances in which the grounds specified under the SectionHindu

Marriage Act have been pleaded and proved. At the time of appreciation

of the evidence to those grounds, the chances of revival of marriage for

the said reason may be looked into while recording the finding and to
38

arrive at a conclusion that the reunion or revival of marriage is not

possible, therefore, the case of irretrievable breakdown of marriage is

made out on the ground so pleaded and proved. Thus, even if the

irretrievable breakdown of marriage itself is not a ground but it is a

consequence of non revival of marriage due to illustrations as referred

in Paragraph 34 hereinabove and due to which the marriage may be

dissolved as directed by Hon’ble the Apex Court.

38. In view of the foregoing legal position, now the ground for divorce

as taken in the petition and the evidence so brought to prove it, may be

discussed, to see the hope of revival of marriage and would it not make

the life hell of both the husband and wife on account of their adament

and callous attitude. Thus, the pleadigs and evidence of the present

case are analyzed in succeeding paragraphs.

39. In the present case, the cruelty has been alleged by the husband

against the wife and similar is the position with the wife against the

husband. In this regard, in place of perusing the other evidence, a CD of

conversation between the husband and wife and children is on record

and its transcript is also on record. On perusal, it is abundantly clear

that the husband levelled vulgar allegations of adultery against the wife

which has not ended to the wife but repeatedly asked the same from the

children, alleging to have her adulterous relation. Similar is the position

in the conversation of wife with the husband alleging illicit relations

with co-workers and other women. For the said allegation of adultery,

oral evidence is available on record, blaming to each other. The

allegation of cruelty, consuming liquor, assault, to burn the clothes of
39

the wife and to counter the same, Peons and the workers of the family

were produced alleging the threat to leave the job. During the course of

evidence in the Court, the husband specifically said that he cannot live

with the wife in future. The Court found various allegations proved by

the evidence and the conduct of the wife and held that it falls within the

purview of mental cruelty. It is also said the wife made the complaint

reaching in the Office during office hours and alleged for corruption

against him and also misbehaved in office. Considering all these

circumstances, the trial Court recorded the finding that it is a case of

mental cruelty committed by the wife with the husband. Simultaneously

the conversation of husband with the wife and children in the CD,

alleging adultery against each other is also on record. It is also a case in

which the husband and wife are residing separately for the last more

than 6 years, however, the Court recorded the finding that the cruelty

has been proved, therefore, decreed the suit filed by the husband. It is

also observed that it is a case in which revival of marriage is not

possible, therefore, it attracts the concept of irretrievable breakdown of

marriage and in the said facts, the restitution of conjugal rights was

denied.

40. After due appraisal of the evidence brought on record as

discussed and also the finding recorded by the trial Court, we do not

find any perversity or illegality in the findings warranting interference

in the appeal. In consequence to it, we dismiss this appeal filed by the

appellant-wife maintaining the judgment and decree of the trial Court

decreeing the suit filed by the husband directing divorce and dismissing
40

the suit filed by the wife for restitution of conjugal rights. Thus, the

judgment of trial Court to the said extent is hereby upheld.

41. Now the issue regarding grant of permanent alimony to the

appellant-wife, who is living separately along with three children, is also

relevant for decision of the case. It is to be noted here that the trial

Court granted permanent alimony of Rs. 5 Lakh only to the children

without granting any amount to the appellant-wife because it was not

claimed by her. In this regard, it can safely be observed that once the

wife is contesting the proceeding by filing a suit for restitution of

conjugal rights, which has been dismissed by the Court granting decree

of divorce on a suit filed by the respondent-husband. However, not filing

the application seeking permanent alimony is merely a circumstance, in

which, she wants to reside but it cannot be an impediment to deny the

permanent alimony to wife and allow the parties to continue to litigate

in other Courts either in the proceedings under Section 125 of the Code

of Criminal Procedure or for grant of maintenance under other laws.

42. It is relevant to point out that the husband has filed the

proceeding under Section 10 of the Hindu Marriage Act in which an

application filed by the wife under Section 25 of the Hindu Marriage Act

for grant of maintenance pendente lite a sum of Rs. 40,000/- was

awarded but thereafter the said proceedings were withdrawn, however,

the interim order passed in the said has lost its efficacy. Thereafter in a

suit filed seeking decree of divorce, on an application filed by the

appellant-wife for grant of maintenance under Section 24 of the Hindu

Marriage Act, a sum of Rs. 30,000/- was awarded. But on filing W.P. No.
41

5967/2015, by way of interim order, the Court directed to pay a sum of

Rs. 25,000/-, the said writ petition is listed for hearing, however, it

cannot be said that the wife is not asking for grant of maintenance to

which the proceedings are pending separately. Thus, from the said facts

demand of permanent alimony on the request made by the counsel for

appellant is sufficient for granting the same.

43. It is also relevant to point out here that the wife and children filed

an application seeking maintenance under Section 125 of the Cr.P.C.

against the order dated 2.1.2015 by which the Court observed that even

after consultation with the parties on several occasion, amicable

settlement is not at all possible and a sum of Rs. 35,000/- has already

been directed to be paid as interim maintenance. Against the said order,

M.Cr.C. No. 16660/2015 has filed in the said case, order dated 4.5.2015

was passed by this Court to list it along with F.A. No. 653/2016 for

analogous hearing. Thus, all the cases are listed together for analogous

hearing. Considering the aforesaid it cannot be said that the appellant

wife and children are not asking the maintenance or permanent

alimony. In fact they are running pillar to post and litigating in the

Courts to get the adequate amount of maintenance from the

respondent-husband, who is in the Indian Forest Services and was

getting the salary of more than 1,50,000/- per month in January, 2015

and at present it may be approximately Rs. 1,80,000/-. On the other

hand the wife as well as three children who are school going, are

required to live separately with status of her husband or father. Nothing

has been brought on record to show that the wife is having any source
42

of income to maintain herself as well her children. In such

circumstances, with intent to resolve all the controversies, we deem it

appropriate to grant adequate amount of permanent alimony to the wife

and children.

44. In the facts and circumstances of the case, in which the husband

is working in the Indian Forest Services and getting salary of

approximately Rs. 1,80,000/- per month and living only with his mother

and on the other hand the appellant-wife is residing separately along

with her three school going children and she has no source of income,

in our considered opinion, the award of permanent alimony Rs. 75,000/-

per month to the wife and children would be adequate. Therefore, the

respondent is directed to pay a sum of Rs. 75,000/- per month to the

appellant-wife as permanent alimony, which shall be debited every

month from his salary and credited in the bank account of the appellant-

wife. However, it is open to the parties to apply to the Court for

revocation/modification of the amount of permanent alimony showing

the change in the circumstances.

45. In consequence to above discussion the F.A. No. 653/2016

(Disha Kushwaha Vs. Rituraj Singh) is hereby dismissed maintaining the

decree of divorce with direction to the respondent-husband to pay

permanent alimony Rs. 75,000/- per month to the wife and children.

W.P. No. 5967/2015 (Ritu Raj Singh Vs. Smt. Disha Kushwaha), which

is filed challenging the interim order passed in the R.C.S. No. 828-

A/2014, be treated as disposed of because the suit has itself been finally

decided. M.Cr.C. No. 16660/2015 (Ritu Raj Singh Vs. Smt. Disha
43

Singh and others) which is arising out of the proceedings under Section

125 of the Cr.P.C. filed by the appellant-wife is also disposed of, in view

of the grant of the permanent alimony Rs. 75,000/- to the appellant-wife

and children. Thus, the proceedings under Section 125 of the Cr.P.C. if

any, pending in the trial Court is not required to be continued further

and be now consigned to the record.

46. Let a copy of this order be sent to the Department concerned

where the respondent-husband is working (Indian Forest Services) with

direction to deduct the amount of permanent alimony from his salary of

October paid in November and further by every month as directed

hereinabove.

47. In view of the above, F.A. No. 653/2016, W.P. No. 5967/2015 and

M.Cr.C. No. 16660/2015 stand disposed of.

(J.K. Maheshwari) (Smt. Anjuli Palo)
Judge Judge

PB

Digitally signed by
PRADYUMNA BARVE
Date: 2019.10.07
12:10:48 +05’30’
44

HIGH COURT OF MADHYA PRADESH : JABALPUR

F.A.No.653/2016 : Disha Kushwaha -Versus- Rituraj Singh

W.P.No. 5967/2015 : SectionRitu Raj Singh v. Smt. Disha Kushwaha (Singh)

M.Cr.C. No. 16660/2015 :SectionRitu Raj Singh v. Smt. Disha Singh others

Bench Constituted : Hon’ble Shri Justice J.K.Maheshwari
Hon’ble Smt. Justice Anjuli Palo

Judgment delivered by : Hon’ble Shri Justice J.K.Maheshwari

Whether approved for reporting : Yes

Name of counsel for the parties

Counsel For the Husband : Shri Praveen Dubey, Advocate.

Counsel For the Wife : Shri Ankit Saxena, Advocate

Law laid down:

➢ What is marriage? Discussed in detail.

➢ Irretrievable Breakdown of Marriage : Meaning, History Concept has been
discussed in Paragraphs : 16 to 23.

➢ Law Relating to Irretrievable Breakdown of Marriage to make a ground for divorce or

dissolution has been emerged first time in the New Zealand and thereafter other countries
Like Australia, USSR, Canada, England etc., which has been considered in the 71 st and 217th
report of the Law Commission of India commending Parliament to make the law but law has
not yet been implemented.

➢ Case Laws of the Supreme Court of Indiia in the context of irretrievable breakdown
has been considered whereby the Supreme Court said that the High Court has to consider
the repercussions, consequences, impact and ramifications of all the criminal and
other proceedings initiated by the parties against each other in the proper
perspective., though it may not be a ground for divorce.

➢ Irretrievable breakdown of marriage is not a ground under SectionHindu Marriage
Act but while consider the circumstances or the allegations regarding cruelty, the
irretrievable breakdown of marriage may be a circumstance, which can be taken
note of while deciding the grounds for divorce or for dissolution of marriage.
45

Significant Paragraphs: 16 to 23 and 34 to 47

*******

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