1
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
******
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
2
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.
3
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.
4
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
5
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
6
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.
7
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
8
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
9
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’.
10
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
11years 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
12
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
13
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
14
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
15
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
16
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
17matrimonial 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
18
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:-
19
“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
20obvious 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:
21
“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
22between 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
25has 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
26respondent 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
*******
