irretrievable breakdown of marriage in India.
"Number
of cases including criminal complaints have been filed by the respondent
against the appellant and every effort has been made to harass and torture him
and even to put the appellant behind the bars by the respondent. The appellant
has also filed cases against the respondent.
We would like to examine the facts of the case in the light of the settled position of law which has been crystallized by a series of judgments.
In the light of facts and circumstances of this case we would also like to examine the concept of Irretrievable Breakdown of Marriage particularly with reference to recently decided cases.
Impact of Physical and Mental Cruelty in Matrimonial Matters.
The petition for divorce was filed primarily on the ground of cruelty. It may be pertinent to note that, prior to the 1976 amendment in the Hindu Marriage Act, 1955 cruelty was not a ground for claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial separation under Section 10 of the Act. By 1976 Amendment, the Cruelty was made ground for divorce. The words which have been incorporated are "as to cause a reasonable apprehension."
We would like to examine the facts of the case in the light of the settled position of law which has been crystallized by a series of judgments.
In the light of facts and circumstances of this case we would also like to examine the concept of Irretrievable Breakdown of Marriage particularly with reference to recently decided cases.
Impact of Physical and Mental Cruelty in Matrimonial Matters.
The petition for divorce was filed primarily on the ground of cruelty. It may be pertinent to note that, prior to the 1976 amendment in the Hindu Marriage Act, 1955 cruelty was not a ground for claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial separation under Section 10 of the Act. By 1976 Amendment, the Cruelty was made ground for divorce. The words which have been incorporated are "as to cause a reasonable apprehension."
Naveen Kohli vs Neelu Kohli on 21 March, 2006
Author: Dalveer Bhandari
Bench: B Agrawal, A Mathur, D Bhandari
CASE NO.:
Appeal (civil) 812 of
2004
PETITIONER:
Naveen Kohli
RESPONDENT:
Neelu Kohli
DATE OF JUDGMENT:
21/03/2006
BENCH:
B.N. AGRAWAL,A.K.
MATHUR & DALVEER BHANDARI
JUDGMENT:
J U D G M E N T
Dalveer Bhandari, J
This appeal is
directed against the judgment of the Allahabad High Court dated 07.07.2003
passed by the Division Bench in First Appeal No.323 of 2003.
The appellant and the
respondent are husband and wife. The appellant has filed a petition under the
Hindu Marriage Act, 1955 for divorce. The Family Court after comprehensively
dealing with the matter ordered cancellation of marriage between the parties
under Section 13 of the Hindu Marriage Act which was solemnized on 20.11.1975
and directed the appellant to pay Rs.5 lacs as her livelihood allowance. The
appellant deposited the amount as directed.
The respondent
aggrieved by the said judgment preferred First Appeal before the Division Bench
of the Allahabad High Court. After hearing the parties the appeal was allowed
and the decree passed by the Family Court, Kanpur City seeking divorce and
annulment of the marriage was dismissed.
The appellant
aggrieved by the said judgment of the High Court had preferred special leave
petition under Article 136 of the Constitution of India. This Court granted
special leave to appeal to the appellant.
Brief facts which are
necessary to dispose of this appeal are recapitulated.
The appellant, Naveen
Kohli got married to Neelu Kohli on 20.11.1975. Three sons were born out of the
wedlock of the parties. The appellant constructed three factories with the
intention of providing a separate factory for his three sons. He also
constructed bungalow no.7/36 A for their residence. The parties got all their
three sons admitted and educated in a public school in Nanital. According to
the appellant, the respondent is bad tempered and a woman of rude behaviour.
After marriage, she started quarrelling and misbehaving with the appellant and
his parents and ultimately, the appellant was compelled to leave the parental
residence and started to reside in a rented premises from May 1994. According
to the version of the appellant, the respondent in collusion with her parents
got sufficient business and property transferred in her name.
The appellant alleged
that in the month of May 1994, when he along with the respondent and their
children visited Bombay to attend the golden jubilee marriage anniversary of
his father-in-law, he noticed that the respondent was indulging in an indecent
manner and found her in a compromising position with one Biswas Rout.
Immediately thereafter, the appellant started living separately from the
respondent since May 1994. The appellant suffered intense physical and mental
torture.
According to the
appellant, the respondent had withdrawn Rs.9,50,000/- from the Bank Account of
the appellant and deposited the same in her account.
The appellant alleged
that the respondent got a false first information report registered against him
under Sections 420/467/468 and 471 IPC which was registered as Case No.156 of
1995. According to him, the respondent again got a case under Sections 323/324
I.P.C. registered in the police station Panki, Kanpur City and efforts were
made to get the appellant arrested.
The appellant filed a
Civil Suit No. 1158/1996 against the respondent. It was also reported that the
appellant was manhandled at the behest of the respondent and an FIR No.156 of
1996 was filed by the eldest son at the behest of the respondent against the
appellant in police station, Panki complaining that the appellant had
physically beaten her son, Nitin Kohli.
The respondent in her
statement before the Trial Court had mentioned that she had filed an FIR
against the appellant under Section 420/468 IPC at the Police Station, Kotwali
and the respondent had gone to the extent of filing a caveat in the High Court
in respect of the said criminal case so that the appellant may not obtain an
order from the High Court against her filing the said FIR.
In the same
statement, the respondent had admitted that she had filed an FIR No.100/96 at
the Police Station, Kohna under Section 379/323 IPC against the appellant.
The respondent had
also filed a complaint against the appellant and his mother under Sections
498A/323/504/506 IPC at Police Station, Kohna.
The respondent in her
statement had admitted that she had opposed the bail of the appellant in the
criminal case filed at the Police Station, Kotwali on the basis of legal
advice. In that very statement she further admitted that after the police had
filed final report in both the criminal cases relating to Police Station,
Kotwali and Police Station, Kohna, she had filed protest petition in those
cases.
This clearly
demonstrates the respondent's deep and intense feeling of revenge. The
respondent in her statement had also admitted that she had filed a complaint in
the Women Cell, Delhi in September 1997. According to the appellant, the
respondent had filed a complaint no.125 of 1998 against the appellant's lawyer
and friend alleging criminal intimidation which was found to be false.
According to the
appellant, the respondent filed a forged complaint under sections 397/398 of
the Companies Act before the Company Law Board, New Delhi and in the affidavit
of the respondent she stated that the appellant was immoral, alcoholic, and was
having affairs with numerous girls since marriage. She also called him a
criminal, infidel, forger and her manager to denigrate his position from the
proprietor to an employee of her company.
The appellant also
mentioned that the respondent filed a false complaint in Case No.1365 0f 1988
using all kinds of abuses against the appellant.
On 8.7.1999, the
respondent filed a complaint in the Parliament Street Police Station, New Delhi
and made all efforts to ensure the appellant's arrest with the object of
sending him to jail. The appellant was called to the police station repeatedly
and was interrogated by the police and only after he gave a written reply and
the matter on scrutiny was found to be false, the appellant with great
difficulty was able to save himself from imprisonment.
On 31.3.1999 the
respondent had sent notice for breaking the Nucleus of the HUF, expressly
stating that the Family Nucleus had been broken with immediate effect and
asking for partition of all the properties and assets of the HUF and stating
that her share should be given to her within 15 days. According to the
appellant, this act of the respondent clearly broke all relations between the
appellant and the respondent on 31.3.1999.
The respondent had
filed a complaint against the appellant under Section 24 of the Hindu Marriage
Act directing payment of maintenance during the pendency of the case. This was
rejected by the Trial Court and she later filed an appeal in the High Court.
The appellant had
deposited Rs.5 lacs on Court's directions but that amount was not withdrawn by
the respondent. On 22.1.2001 the respondent gave an affidavit before the High
Court and got non-bailable warrants issued against the appellant. Consequently,
the appellant was harassed by the police and ultimately he got the arrest order
stayed by the High Court. The respondent admitted in her statement that she got
the advertisement published in the English National Newspaper 'Pioneer'. The
advertisement reads as under :
PUBLIC NOTICE
Be it known to all
that Mr. Naveen
Kohli S/o Mr. Prem
Kumar Kohli was
working with my
Proprietorship firm
as Manager. He has
abandoned his
job since May 1996
and has not
resumed duties.
He is no more in the
employment of
the firm. Any Body
dealing with him shall be doing so at his own risk, his authority to represent
the firm has
been revoked and none
should deliver him orders, cash cheques or drafts
payable to the firm.
NEELU KOHLI
Sole Proprietor
M/s NITIN RUBBERS
152-B, Udyog Nagar,
Kanpur
The respondent in her
statement before the Court did not deny the contents of the affidavit but
merely mentioned that she did not remember whether she called the appellant a
criminal, infidel and a forger in the affidavit filed before the Company Law
Board.
The respondent did
not deny her using choicest abuses against the appellant but merely stated that
she did not remember.
The respondent also
filed a contempt petition in the Company Law Board against its order of the
Company Law Board dated 25.9.2000 in order to try and get the appellant thrown
out of the little apartment and urged that the appellant be sent to jail.
Before the Family
Court, the respondent stated about solemnization of the marriage with the
appellant on 20.11.1975. In her written statement she had denied the fact that
she was either a rude or a quarrelsome lady. The respondent also denied that
she had mentally, physically and financially harassed and tortured the
appellant. She also stated that she never refused cohabitation with the
appellant. She also denied indulging in any immoral conduct. She averred in the
written statement that the appellant has been immorally living with a lady
named 'Shivanagi'.
The appellant and the
respondent filed a number of documents in support of their respective cases. On
the basis of the pleadings and the documents, the Additional Principal Judge of
Family Court framed the following issues :-
"1. Whether the
respondent treated the plaintiff with cruelty by registering various criminal
cases, getting the news published and initiating civil
proceedings?
2. Whether the
defendant treated the plaintiff with cruelty by her objectionable behaviour as
stated in the plaint?
3. Whether respondent
has made false allegation against the plaintiff? If yes, its impact?
Whether in the
presence of plaintiff, the defendant displayed her behaviour with Dr. Viswas
Rout which comes in the
category of
immorality as has been stated in para 11 of the plaint? If yes, its impact?
4. Whether the
petition is not maintainable on the basis of preliminary objections 1 to 3 of
the written statement?
5. Whether plaintiff
has kept Smt. Shivanagi with him as his concubine? If yes, its impact?
6. Whether suit of
the plaintiff is barred by the provisions of Section 11, C.P.C.?
7. Whether plaintiff
is entitled to get the decree of dissolution of marriage against defendant?
8. Whether plaintiff
is entitled to get any other relief?"
Issues number 1 &
2 relate to the term 'Cruelty' and Issue no. 3 is regarding impact of false
allegations levelled by the respondent against the appellant. All these three
issues were decided in favour of the appellant and against the respondent. The
learned Trial Court came to a definite conclusion that the respondent had filed
a very large number of cases against the appellant and got him harassed and
tortured by the police. It also declared him an employee of the factory of
which the respondent is a proprietor by getting an advertisement issued in the
newspaper. According to findings of the Trial Court, the appellant was
mentally, physically and financially harassed and tortured by the respondent.
The Trial Court
framed specific issue whether the appellant had kept Smt. Shivangi with him as
his concubine. This allegation has been denied by the appellant. The respondent
had failed to produce any witness in respect of the aforesaid allegation and
was consequently not able to prove the same. The Trial Court stated that both parties
have levelled allegations of character assassination against each other but
failed to prove them.
The Trial Court
stated that many a times efforts have been made for an amicable settlement, but
on the basis of allegations which have been levelled by both the parties
against each other, there is no cordiality left between the parties and there
is no possibility of their living together. According to the Trial court, there
was no possibility to reconnect the chain of marital life between the parties. Hence,
the Trial Court found that there is no alternative but to dissolve the marriage
between the parties. The Trial Court also stated that the respondent had not
filed any application for allowing permanent maintenance and Stridhan but, in
the interest of justice, the Trial Court directed the appellant to deposit
Rs.5,00,000/- toward permanent maintenance of the respondent. The Trial Court
also ordered that a decree of dissolution of marriage shall be effective after
depositing the payment of Rs.5,00,000/- by the appellant. Admittedly, the
appellant had immediately deposited the said amount.
The respondent,
aggrieved by the judgment of the Principal Judge, Family Court, Kanpur City,
preferred the first appeal before the High Court, which was disposed of by a
Division Bench of the Allahabad High Court.
According to the High
Court, the Trial Court had not properly appreciated and evaluated the evidence
on record. According to the High Court, the appellant had been living with one
Shivangi. As per the High Court, the fact that on Trial Court's directions the
appellant deposited the sum of Rs.5,00,000/- within two days after the judgment
which demonstrated that the appellant was financially well off. The Division
Bench of the High Court held that actions of the appellant amounted to
misconduct, un-condonable for the purpose of Section 13(1)(a) of the Hindu
Marriage Act. The appeal was allowed and the Trial Court judgment has been set
aside. The suit filed by the appellant seeking a decree of divorce was also dismissed.
The appellant
preferred a Special Leave Petition before this Court. We have carefully perused
the pleadings and documents on record and heard the learned counsel appearing
for the parties at length.
Both the parties have
levelled allegations against each other for not maintaining the sanctity of
marriage and involvement with another person. According to the respondent, the
appellant is separately living with another woman, 'Shivanagi'. According to
the appellant, the respondent was seen indulging in an indecent manner and was
found in compromising position with one Biswas Rout. According to the findings
of the Trial Court both the parties failed to prove the allegations against
each other. The High Court has of course reached the conclusion that the
appellant was living with one 'Shivanagi' for a considerable number of years.
The fact of the matter is that both the parties have been living separately for
more than 10 years. Number of cases including criminal complaints have been
filed by the respondent against the appellant and every effort has been made to
harass and torture him and even to put the appellant behind the bars by the
respondent. The appellant has also filed cases against the respondent.
We would like to
examine the facts of the case in the light of the settled position of law which
has been crystallized by a series of judgments.
In the light of facts
and circumstances of this case we would also like to examine the concept of
Irretrievable Breakdown of Marriage particularly with reference to recently
decided cases.
Impact of Physical
and Mental Cruelty in Matrimonial Matters.
The petition for
divorce was filed primarily on the ground of cruelty. It may be pertinent to
note that, prior to the 1976 amendment in the Hindu Marriage Act, 1955 cruelty
was not a ground for claiming divorce under the Hindu Marriage Act. It was only
a ground for claiming judicial separation under Section 10 of the Act. By 1976
Amendment, the Cruelty was made ground for divorce. The words which have been
incorporated are "as to cause a reasonable apprehension in the mind of the
petitioner that it will be harmful or injurious for the petitioner to live with
the other party". Therefore, it is not necessary for a party claiming
divorce to prove that the cruelty treatment is of such a nature as to cause an
apprehension reasonable apprehension
that it will be harmful or injurious for him or her to live with the other
party.
The Court had an
occasion to examine the 1976 amendment in the case of N.G. Dastane v. S. Dastane
[(1975) 2 SCC 326: AIR 1975 SC 1534], The Court noted that "....whether
the conduct charges as cruelty is of such a character as to cause in the mind
of the petitioner a reasonable apprehension that it will be harmful or
injurious for him to live with the respondent".
We deem it
appropriate to examine the concept of 'Cruelty' both in English and Indian Law,
in order to evaluate whether the appellant's petition based on the ground of
cruelty deserves to be allowed or not.
D. Tolstoy in his
celebrate book "The Law and Practice of Divorce and Matrimonial
Causes" (Sixth Edition, p. 61) defined cruelty in these words:
"Cruelty which is a ground for
dissolution of
marriage may be
defined as willful
and unjustifiable conduct of such a character as to
cause danger to life,
limb or health, bodily or mental, or as to give rise to a reasonable
apprehension of such a
danger."
The concept of
cruelty in matrimonial matters was aptly discussed in the English case in
Bertram v. Bertram [(1944) 59, 60] per Scott, L.J. observed: "Very slight
fresh evidence is needed to show a resumption of the cruelty, for cruelty of
character is bound to show itself in conduct and
behaviour. Day in and
day out,
night in and night
out."
In Cooper vs. Cooper
[(1950) WN 200 (HL)], it was observed as under:
"It is true that
the more serious the original offence, the less grave need be the subsequent
acts to constitute a revival."
Lord Denning, L.J. in
Kaslefsky v. Kaslefsky [(1950) 2 All ER 398, 403] observed as under: "If
the door of cruelty were opened
too wide, we should
soon find
ourselves granting
divorce for
incompatibility of
temperament.
This is an easy path
to tread,
especially in
undefended cases. The temptation must be resisted lest we
slip into a state of
affairs where the institution of marriage itself is
imperiled."
"In England, a
view was at one time taken that the petitioner in a matrimonial petition must
establish his case beyond a reasonable doubt but in Blyth v. Blyth [(1966) 1
All ER 524, 536], the House of Lords held by a majority that so far as the
grounds of divorce or the bars to divorce like connivance or condonation are
concerned, "the case like any civil case, may be proved by a preponderance
of probability".
The High Court of
Australia in Wright v. Wright [(1948) 77 CLR 191, 210], has also taken the view
that "the civil and not the criminal standard of persuasion applies to
matrimonial causes, including issues of adultery". The High Court was
therefore in error in holding that the petitioner must establish the charge of
cruelty "beyond reasonable doubt". The High Court adds that
"This must be in accordance with the law of evidence", but we are not
clear as to the implications of this observation."
Lord Pearce observed:
"It is
impossible to give a
comprehensive
definition of cruelty, but when reprehensible conduct or
departure from the
normal
standards of conjugal
kindness
causes injury to
health or an
apprehension of it,
it is, I think,
cruelty if a
reasonable person, after taking due account of the
temperament and all
the other
particular
circumstances would
consider that the
conduct
complained of is such
that this
spouse should not be
called on to
endure it.
* * *
I agree with Lord
Merriman
whose practice in
cases of mental
cruelty was always to
make up his
mind first whether
there was injury
or apprehended injury
to health. In the light of that vital fact the court has then to decide whether
the sum
total of the
reprehensible conduct
was cruel. That
depends on
whether the
cumulative conduct
was sufficiently
weighty to say that from a reasonable person's point of
view, after a
consideration of any
excuse which this
respondent might
have in the
circumstances, the
conduct is such that
this petitioner ought not to be called on to endure
it.
* * *
The particular
circumstances
of the home, the
temperaments and
emotions of both the
parties and
their status and
their way of life,
their past
relationship and almost
every circumstance
that attends the
act or conduct
complained of may
all be
relevant."
Lord Reid in Gollins
v. Gollins [1964 AC 644 : (1963) 2 All ER 966]:
"No one has ever
attempted to give a comprehensive definition of cruelty
and I do not intend
to try to do so. Much must depend on the
knowledge and
intention of the
respondent, on the
nature of his (or her) conduct, and on the character
and physical or
mental weaknesses
of the spouses, and
probably no
general statement is
equally
applicable in all
cases except the
requirement that the
party seeking
relief must show
actual or probable
injury to life, limb
or health.
The principles of law
which have been crystallized by a series of judgments of this Court are
recapitulated as under :-
In the case of
Sirajmohmedkhan
Janmohamadkhan vs.
Harizunnisa Yasinkhan reported in (1981) 4 SCC 250, this Court stated that the
concept of legal cruelty changes according to the changes and advancement of
social concept and standards of living. With the advancement of our social
conceptions, this feature has obtained legislative recognition, that a second
marriage is a sufficient ground for separate residence and maintenance.
Moreover, to establish legal cruelty, it is not necessary that physical
violence should be used. Continuous ill-treatment, cessation of marital
intercourse, studied neglect, indifference on the part of the husband, and an
assertion on the part of the husband that the wife is unchaste are all factors
which lead to mental or legal cruelty.
In the case of Sbhoba Rani vs. Madhukar Reddi
reported in (1988) 1 SCC 105, this Court had an occasion to examine the concept
of cruelty. The word 'cruelty' has not been defined in the Hindu Marriage Act.
It has been used in Section 13(1)(i)(a) of the Act in the context of human
conduct or behaviour in relation to or in respect of matrimonial duties or
obligations. It is a course of conduct of one which is adversely affecting the
other. The cruelty may be mental or physical, intentional or unintentional. If
it is physical, it is a question of fact and degree. If it is mental, the
enquiry must begin as to the nature of the cruel treatment and then as to the
impact of such treatment on the mind of the spouse. Whether it caused
reasonable apprehension that it would be harmful or injurious to live with the
other, ultimately, is a matter of inference to be drawn by taking into account
the nature of the conduct and its effect on the complaining spouse. There may,
however, be cases where the conduct complained of itself is bad enough and per
se unlawful or illegal. Then the impact or the injurious effect on the other
spouse need not be enquired into or considered. In such cases, the cruelty will
be established if the conduct itself is proved or admitted. The absence of
intention should not make any difference in the case, if by ordinary sense in
human affairs, the act complained of could otherwise be regarded as cruelty.
Intention is not a necessary element in cruelty. The relief to the party cannot
be denied on the ground that there has been no deliberate or wilful
ill-treatment.
The cruelty alleged
may largely depend upon the type of life the parties are accustomed to or their
economic and social conditions and their culture and human values to which they
attach importance. Each case has to be decided on its own merits.
The Court went on to
observe as under : "It will be necessary to bear in mind that there has
been marked
changed in the life
around us. In
matrimonial duties
and
responsibilities in
particular, we find a sea change. They are of varying
degrees from house to
house or
person to person.
Therefore, when a spouse makes complaint about the
treatment of cruelty
by the partner
in life or relations,
the court should not search for standard in life. A set of facts stigmatized as
cruelty in one case may not be so in another case.
The cruelty alleged
may largely
depend upon the type
of life the
parties are
accustomed to or their
economic and social
conditions. It
may also depend upon
their culture
and human values to
which they
attach importance.
We, the judges
and lawyers,
therefore, should not
import our own
notions of life. We
may not go in
parallel with them.
There may be a
generation gap
between us and the
parties. It
would be better if we
keep aside our customs and manners. It would be
also better if we
less depend upon
precedents.
Lord Denning said in
Sheldon
v. Sheldon, [1966] 2
All E.R. 257
(CA) 'the categories
of cruelty are not closed'. Each case may be different. We deal with the
conduct of human
beings who are no
generally similar. Among the human beings there is
no limit to the kind
of conduct
which may constitute
cruelty. New
type of cruelty may
crop up in any
case depending upon
the human
behaviour, capacity
or incapability
to tolerate the
conduct complained
of. Such is the
wonderful (sic) realm of cruelty."
In the case of V. Bhagat vs. D. Bhagat
reported in (1994) 1 SCC 337, this Court had occasion to examine the concept of
'mental cruelty'. This Court observed as under:
"16. Mental
cruelty in Section
13(1)(i-a) can
broadly be defined as that conduct which inflicts upon the other party such
mental pain and
suffering as would
make it not
possible for that
party to live with the other. In other words, mental
cruelty must be of
such a nature
that the parties
cannot reasonably
be expected to live
together. The
situation must be
such that the
wronged party cannot
reasonably be
asked to put up with
such conduct
and continue to live
with the other
party. It is not
necessary to prove that the mental cruelty is such as to cause injury to the
health of the
petitioner. While
arriving at such
conclusion, regard
must be had to
the social status,
educational level of the parties, the society they move in, the possibility or
otherwise of the parties ever living together in case they are already living
apart and all other relevant facts and
circumstances which
it is neither
possible nor
desirable to set out
exhaustively. What is
cruelty in one case may not amount to cruelty in
another case. It is a
matter to be
decided in each case
having regard
to the facts and
circumstances of
that case. If it is a
case of
accusations and
allegations, regard
must also be had to
the context in
which they were
made."
The word 'cruelty'
has to be understood in the ordinary sense of the term in matrimonial affairs.
If the intention to harm, harass or hurt could be inferred by the nature of the
conduct or brutal act complained of, cruelty could be easily established. But
the absence of intention should not make any difference in the case. There may
be instances of cruelty by unintentional but inexcusable conduct of any party.
The cruel treatment may also result from the cultural conflict between the
parties. Mental cruelty can be caused by a party when the other spouse levels an
allegation that the petitioner is a mental patient, or that he requires expert
psychological treatment to restore his mental health, that he is suffering from
paranoid disorder and mental hallucinations, and to crown it all, to allege
that he and all the members of his family are a bunch of lunatics. The
allegation that members of the petitioner's family are lunatics and that a
streak of insanity runs though his entire family is also an act of mental
cruelty. This Court in the case of Savitri Pandey vs. Prem Chandra
Pandey reported in (2002) 2 SCC 73, stated that mental cruelty is the
conduct of other spouse which causes mental suffering or fear to the
matrimonial life of the other. "Cruelty", therefore, postulates a
treatment of the petitioner with such cruelty as to cause a reasonable
apprehension in his or her mind that it would be harmful or injurious for the
petitioner to live with the other party. Cruelty, however, has to be
distinguished from the ordinary wear and tear of family life. It cannot be
decided on the basis of the sensitivity of the petitioner and has to be
adjudged on the basis of the course of conduct which would, in general, be
dangerous for a spouse to live with the other.
In this case, this
Court further stated as under: "9. Following the decision in
Bipinchandra case
[AIR 1957 SC
176] this Court again
reiterated the legal position in Lachman
Utamchand Kirpalani
v. Meena [AIR
1964 SC 40] by
holding that in its
essence desertion
means the
intentional permanent
forsaking and
abandonment of one
spouse by the
other without that
other's consent,
and without
reasonable cause. For
the offence of
desertion so far as the deserting spouse is concerned, two
essential conditions
must be there
(1) the factum of
separation, and (2) the intention to bring cohabitation
permanently to an end
(animus
deserendi). Similarly
two elements
are essential so far
as the deserted spouse is concerned: (1) the absence of consent, and (2)
absence of
conduct giving
reasonable cause to
the spouse leaving
the matrimonial
home to form the
necessary
intention aforesaid.
For holding
desertion as proved
the inference
may be drawn from
certain facts
which may not in
another case be
capable of leading to
the same
inference; that is to
say the facts
have to be viewed as
to the purpose
which is revealed by
those acts or by conduct and expression of intention, both anterior and
subsequent to the
actual acts of
separation."
In this case, this
Court further stated that cruelty can be said to be an act committed with the
intention to cause suffering to the opposite party. This Court in the case of Gananth Pattnaik vs. State of
Orissa reported in (2002) 2 SCC 619 observed as under:
"The concept of
cruelty and its effect varies from individual to individual, also depending
upon the social and
economic status to
which such
person belongs.
"Cruelty" for the
purposes of
constituting the offence under the aforesaid section need not be physical. Even
mental torture or abnormal behaviour may amount to
cruelty and
harassment in a given
case."
This Court, in the
case of Parveen Mehta vs.
Inderjit Mehta reported in (2002) 5 SCC 706, defined cruelty as under:
"Cruelty for the
purpose of Section
13(1)(i-a) is to be
taken as a
behaviour by one
spouse towards
the other, which
causes reasonable
apprehension in the
mind of the
latter that it is not
safe for him or her to continue the matrimonial
relationship with the
other. Mental cruelty is a state of mind and feeling with one of the spouses
due to the
behaviour or
behavioural pattern by
the other. Unlike the
case of
physical cruelty,
mental cruelty is
difficult to
establish by direct
evidence. It is
necessarily a matter of inference to be drawn from the
facts and
circumstances of the case. A feeling of anguish, disappointment and frustration
in one spouse
caused by the conduct
of the other
can only be
appreciated on
assessing the
attending facts and
circumstances in
which the two
partners of
matrimonial life have
been living. The
inference has to be drawn from the attending facts and
circumstances taken
cumulatively.
In case of mental
cruelty it will not be a correct approach to take an
instance of
misbehaviour in
isolation and then
pose the question whether such behaviour is sufficient by itself to cause
mental cruelty.
The approach should
be to take the
cumulative effect of
the facts and
circumstances
emerging from the
evidence on record
and then draw a
fair inference
whether the petitioner in the divorce petition has been
subject to mental
cruelty due to
conduct of the
other."
In this case the
Court also stated that so many years have elapsed since the spouses parted
company. In these circumstances it can be reasonably inferred that the marriage
between the parties has broken down irretrievably.
In Chetan Dass vs. Kamla Devi
reported in (2001) 4 SCC 250 , this Court observed that the matrimonial matters
have to be basically decided on its facts. In the words of the Court:
"Matrimonial
matters are matters of
delicate human and
emotional
relationship. It
demands mutual
trust, regard,
respect, love and
affection with
sufficient play for
reasonable
adjustments with the
spouse. The
relationship has to
conform to the social
norms as well. The matrimonial conduct has now
come to be governed
by statute
framed, keeping in
view such norms
and changed social
order. It is
sought to be
controlled in the
interest of the
individuals as well as in broader perspective, for
regulating
matrimonial norms for
making of a well-knit,
healthy and
not a disturbed and
porous society.
The institution of
marriage occupies an important place and role to play
in the society, in
general. Therefore, it would not be appropriate to apply any submission of
"irretrievably
broken marriage"
as a straitjacket
formula for grant of
relief of divorce. This aspect has to be considered in
the background of the
other facts
and circumstances of
the case."
In Sandhya Rani vs. Kalyanram
Narayanan reported in (1994) Supp. 2 SCC 588, this Court reiterated and
took the view that since 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. Therefore, the Court granted the decree of divorce.
In the case of Chandrakala Menon vs. Vipin
Menon reported in (1993) 2 SCC 6, the parties had been living separately
for so many years. This Court came to the conclusion that there is no scope of
settlement between them because, according to the observation of this Court,
the marriage has irretrievably broken down and there is no chance of their
coming together. This Court granted decree of divorce.
In the case of Kanchan Devi vs. Promod Kumar
Mittal reported in (1996) 8 SCC 90, the parties were living separately for
more than 10 years and the Court came to the conclusion that the marriage
between the parties had to be irretrievably broken down and there was no
possibility of reconciliation and therefore the Court directed that the
marriage between the parties stands dissolved by a decree of divorce.
In Swati Verma vs. Rajan Verma
reported in (2004) 1 SCC 123, a large number of criminal cases had been filed
by the petitioner against the respondent. This Court observed that the marriage
between the parties had broken down irretrievably with a view to restore good
relationship and to put a quietus to all litigations between the parties and
not to leave any room for future litigation, so that they may live peacefully
hereafter, and on the request of the parties, in exercise of the power vested
in this Court under Article 142 of the Constitution of India, the Court allowed
the application for divorce by mutual consent filed before it under Section 13-B
of the Hindu Marriage Act and declared the marriage dissolved and granted
decree of divorce by mutual consent. In Prakash Chand Sharma vs. Vimlesh [1995
Supp (4) SCC 642], the wife expressed her will to go and live with the husband
notwithstanding the presence of the other woman but the husband was not in a
position to agree presumably because he has changed his position by remarriage.
Be that as it may, a reconciliation was not possible.
In V. Bhagat v. D. Bhagat
(supra), this Court while allowing the marriage to dissolve on ground of mental
cruelty and in view of the irretrievable breakdown of marriage and the peculiar
circumstances of the case, held that the allegations of adultery against the
wife were not proved thereby vindicating her honour and character. This Court
while exploring the other alternative observed that the divorce petition has
been pending for more than 8 years and a good part of the lives of both the
parties has been consumed in this litigation and yet, the end is not in sight
and that the allegations made against each other in the petition and the
counter by the parties will go to show that living together is out of question
and rapprochement is not in the realm of possibility. This Court also observed
in the concluding part of the judgment that:
"Before parting
with this case, we
think it necessary to
append a
clarification. Merely
because there
are allegations and
counter
allegations, a decree
of divorce
cannot follow. Nor is
mere delay in
disposal of the
divorce proceedings
by itself a ground.
There must be
really some extra-
ordinary features to warrant grant of divorce on the
basis of pleading
(and other
admitted material)
without a full
trial. Irretrievable
breakdown of the marriage is not a ground by itself.
But while
scrutinising the evidence
on record to
determine whether the
ground(s) alleged
is/are made out
and in determining
the relief to be
granted, the said
circumstance can
certainly be borne in
mind. The
unusual step as the
one taken by us
herein can be
resorted to only to
clear up an
insoluable mess, when
the Court finds it in
the interest of both parties."
Again in A.
Jaychandra v. Aneel Kumar, (2005) 2 SCC 22, a 3 judge Bench of this Court
observed that the expression "cruelty" has not been defined in the
Act. Cruelty can be physical or mental cruelty which is a ground for
dissolution of marriage may be defined as willful and unjustifiable conduct of
such character as to cause danger to life, limb or health, bodily or mental, or
as to give rise to a reasonable apprehension of such a danger. The question of
mental cruelty has to be considered in the light of the norms of marital ties
of the particular society to which the parties belong, their social values,
status, environment in which they live. Cruelty, as noted above, includes
mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty
need not be physical. If from the conduct of his spouse same is established
and/or an inference can be legitimately drawn that the treatment of the spouse
is such that it causes an apprehension in the mind of the other spouse, about
his or her mental welfare then this conduct amounts to cruelty. In delicate
human relationship like matrimony, one has to see the probabilities of the
case. The concept, a proof beyond the shadow of doubt, is to be applied to
criminal trials and not to civil matters and certainly not to matters of such
delicate personal relationship as those of husband and wife. Therefore, one has
to see what are the probabilities in a case and legal cruelty has to be found
out, not merely as a matter of fact, but as the effect on the mind of the
complainant spouse because of the acts or omissions of the other. Cruelty may
be physical or corporeal or may be mental. In physical cruelty, there can be
tangible and direct evidence, but in the case of mental cruelty there may not
at the same time be direct evidence. In cases where there is no direct
evidence, Courts are required to probe into the mental process and mental
effect of incidents that are brought out in evidence. It is in this view that
one has to consider the evidence in matrimonial disputes. The expression
'cruelty' has been used in relation to human conduct or human behaviour. It is
the conduct in relation to or in respect of matrimonial duties and obligations.
Cruelty is a course or conduct of one, which is adversely affecting the other.
The cruelty may be mental or physical, intentional or unintentional. If it is
physical, the Court will have no problem in determining it. It is a question of
fact and degree. If it is mental, the problem presents difficulties. First, the
enquiry must begin as to the nature of cruel treatment, second the impact of
such treatment in the mind of the spouse, whether it caused reasonable
apprehension that it would be harmful or injurious to live with the other.
Ultimately, it is a matter of inference to be drawn by taking into account the
nature of the conduct and its effect on the complaining spouse. However, there
may be a case where the conduct complained of itself is bad enough and per se
unlawful or illegal. Then the impact or injurious effect on the other spouse
need not be enquired into or considered. In such cases, the cruelty will be
established if the conduct itself is proved or admitted (See Sobha Rani v. Madhukar
Reddi (1988) 1 SCC 105). To constitute cruelty, the conduct complained of
should be "grave and weighty" so as to come to the conclusion that
the petitioner spouse cannot be reasonably expected to live with the other
spouse. It must be something more serious than "ordinary wear and tear of
married life". The conduct taking into consideration the circumstances and
background has to be examined to reach the conclusion whether the conduct
complained of amounts to cruelty in the matrimonial law. Conduct has to be
considered, as noted above, in the background of several factors such as social
status of parties, their education, physical and mental conditions, customs and
traditions. It is difficult to lay down a precise definition or to give
exhaustive description of the circumstances, which would constitute cruelty. It
must be of the type as to satisfy the conscience of the Court that the
relationship between the parties had deteriorated to such extent due to the
conduct of the other spouse that it would be impossible for them to live
together without mental agony, torture or distress, to entitle the complaining
spouse to secure divorce. Physical violence is not absolutely essential to
constitute cruelty and a consistent course of conduct inflicting immeasurable
mental agony and torture may well constitute cruelty within the meaning of
Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults
by using filthy and abusive language leading to constant disturbance of mental
peace of the other party. The Court dealing with the petition for divorce on
the ground of cruelty has to bear in mind that the problems before it are those
of human beings and the psychological changes in a spouse's conduct have to be
borne in mind before disposing of the petition for divorce. However,
insignificant or trifling, such conduct may cause pain in the mind of another.
But before the conduct can be called cruelty, it must touch a certain pitch of
severity. It is for the Court to weigh the gravity. It has to be seen whether
the conduct was such that no reasonable person would tolerate it. It has to be
considered whether the complainant should be called upon to endure as a part of
normal human life. Every matrimonial conduct, which may cause annoyance to the
other, may not amount to cruelty. Mere trivial irritations, quarrels between
spouses, which happen in day-to-day married life, may also not amount to
cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be
subtle or brutal. It may be words, gestures or by mere silence, violent or
non-violent.
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 that 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. The Courts do not have to deal with ideal husbands and
ideal wives. It has to deal with particular man and woman before it. The ideal
couple or a mere ideal one will probably have no occasion to go to Matrimonial
Court.
In Durga P.Tripathy
v. Arundhati Tripathy, (2005) 7 SCC 353, this Court further observed that
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.
In Lalitha v.
Manickswamy, I (2001) DMC 679 SC that the had cautioned in that case that
unusual step of granting the divorce was being taken only to clear up the
insoluble mess when the Court finds it in the interests of both the parties.
Irretrievable
Breakdown of Marriage
Irretrievable
breakdown of marriage is not a ground for divorce under the Hindu Marriage Act,
1955. Because of the change of circumstances and for covering a large number of
cases where the marriages are virtually dead and unless this concept is pressed
into services, the divorce cannot be granted. Ultimately, it is for the
Legislature whether to include irretrievable breakdown of marriage as a ground
of divorce or not but in our considered opinion the Legislature must consider
irretrievable breakdown of marriage as a ground for grant of divorce under the
Hindu Marriage Act, 1955. The 71st Report of the Law Commission of India
briefly dealt with the concept of Irretrievable breakdown of marriage. This
Report was submitted to the Government on 7th April, 1978. We deem it
appropriate to recapitulate the recommendation extensively. In this Report, it
is mentioned that during last 20 years or so, and now it would around 50 years,
a very important question has engaged the attention of lawyers, social
scientists and men of affairs, namely, should the grant of divorce be based on
the fault of the party, or should it be based on the breakdown of the marriage?
The former is known as the matrimonial offence theory or fault theory. The
latter has come to be known as the breakdown theory.
In the Report, it is
mentioned that the germ of the breakdown theory, so far as Commonwealth
countries are concerned, may be found in the legislative and judicial
developments during a much earlier period. The (New Zealand) Divorce and
Matrimonial Causes Amendment Act, 1920, included for the first time the
provision that a separation agreement for three years or more was a ground for
making a petition to the court for divorce and the court was given a discretion
(without guidelines) whether to grant the divorce or not. The discretion
conferred by this statute was exercised in a case in New Zealand reported in
1921. Salmond J., in a passage which has now become classic, enunciated the
breakdown principle in these word:
"The Legislature
must, I think, be
taken to have
intended that
separation for three
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."
In the Report it is
mentioned that restricting the ground of divorce to a particular offence or
matrimonial disability, 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 fagade, when the emotional and other bounds which are of the
essence of marriage have disappeared.
It is also mentioned
in the Report that in case the marriage has ceased to exist in substance and in
reality, there is no reason for denying divorce, then 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 may regulate their relationship in the changed circumstances.
On May 22, 1969, the
General Assembly of the Church of Scotland accepted the Report of their Moral
and Social Welfare Board, which suggested the substitution of breakdown in
place of matrimonial offences. It would be of interest to quote what they said
in their basis proposals:
"Matrimonial
offences are often the
outcome rather than
the cause of
the deteriorating
marriage. An
accusatorial
principle of divorce
tends to encourage
matrimonial
offences, increase
bitterness and
widen the rift 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."
Once the parties have
separated and the separation has continued for a sufficient length of time and
one of them has presented a petition for divorce, it can well be presumed that
the marriage has broken down. The court, no doubt, should seriously make an
endeavour to reconcile the parties; yet, if it is found that the breakdown is
irreparable, then divorce should not be withheld. 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.
A law of divorce
based mainly on fault is inadequate to deal with a broken marriage. Under the
fault theory, guilt has to be proved; divorce courts are presented concrete
instances of human behaviour as bring the institution of marriage into
disrepute.
We have been
principally impressed by the consideration that once the marriage has broken
down beyond repair, it would be unrealistic for the law not to take notice of
that fact, and it would be harmful to society and injurious to the interests of
the parties. Where there has been a long period of continuous separation, it may
fairly be surmised that the matrimonial bond is beyond repair. The marriage
becomes a fiction, though supported by a legal tie. By refusing to sever that
tie the law in such cases do not serve the sanctity of marriage; on the
contrary, it shows scant regard for the feelings and emotions of the parties.
Public interest demands not only that the married status should, as far as
possible, as long as possible, and whenever possible, be maintained, but where
a marriage has been wrecked beyond the hope of salvage, public interest lies in
the recognition of that fact.
Since there is no
acceptable way in which a spouse can be compelled to resume life with the
consort, nothing is gained by trying to keep the parties tied for ever to a
marriage that in fact has ceased to exist.
Some jurists have
also expressed their apprehension for introduction of irretrievable breakdown
of marriage as a ground for grant of the decree of divorce. In their opinion,
such an amendment in the Act would put human ingenuity at a premium and throw
wide open the doors to litigation, and will create more problems then are
sought to be solved.
The other majority
view, which is shared by most jurists, according to the Law Commission Report,
is that human life has a short span and situations causing misery cannot be
allowed to continue indefinitely. A halt has to be called at some stage. Law
cannot turn a blind eye to such situations, nor can it decline to give adequate
response to the necessities arising therefrom.
When we carefully
evaluate the judgment of the High Court and scrutinize its findings in the
background of the facts and circumstances of this case, then it becomes obvious
that the approach adopted by the High Court in deciding this matter is far from
satisfactory.
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 proper perspective. For illustration, the High Court has mentioned
that so far as the publication of the news item is concerned, the status of
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 the next
para 69 of the judgment that in one of the news item what has been indicated
was that in the company, Nikhil Rubber (P) Ltd., the appellant was only a
Director along with Mrs. Neelu Kohli whom held 94.5% share of Rs.100/- each in
the company. The news item further indicated that Naveen Kohli was acting
against the spirit of the Article of the Association of Nikhil Rubber (P) Ltd.,
had caused immense loss of business and goodwill. He has stealthily removed
produce of the company, besides diverted orders of foreign buyers to his
proprietorship firm M/s Navneet Elastomers. He had opened bank account with
forged signatures of Mrs. Neelu Kohli and fabricated resolution of the Board of
Directors of the company. Statutory authority-Companies Act had refused to
register documents filed by Mr. Naveen Kolhi and had issued 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.
The findings of the
High Court that the respondent wife's cautioning the entire world not to deal
with the appellant (her husband) would not lead to mental cruelty is also
wholly unsustainable.
The High Court ought
to have examined the facts of the case and its impact. In the instant case, the
following cases were filed by the respondent against the appellant.
1. The respondent
filed FIR No. 100/96 at Police Station, Kohna under Sections 379/323 IPC
2. The respondent got
a case registered under Sections 323/324 registered in the police station
Panki, Kanpur City.
3. At the behest of
the respondent FIR No.156 of 1996 was also filed in the police station, Panki.
4. The respondent
filed FIR under Section 420/468 IPC at the Police Station, Kotwali.
5. The respondent got
a case registered under Section under Sections 420/467/468 and 471 IPC.
6. The respondent
filed a complaint against the appellant under Sections 498A/323/504/506 IPC at
Police Station, Kohna.
7. The respondent had
even gone to the extent of opposing the bail application of the appellant in
criminal case filed at the police station, Kotwali
8. When police filed
final report in two criminal cases at police station, Kotwali and police
station, Kohna, the respondent filed protest petition in these cases.
9. The respondent
filed complaint no.125 of 1998 in the Women Cell, Delhi in September 1997
against the appellant's lawyer and friend alleging criminal intimidation.
10. The respondent
filed a complaint under sections 397/398 before the Company Law Board, New
Delhi.
11. The respondent
filed a complaint in Case No.1365 0f 1988 against the appellant.
12. Again on
8.7.1999, the respondent filed a complaint in the Parliament Street Police
Station, New Delhi and made all efforts to get the appellant arrested.
13. On 31.3.1999, the
respondent have sent a notice for breaking the Nucleus of the HUF.
14. The respondent
filed a complaint against the appellant under Section 24 of the Hindu Marriage
Act.
15. The respondent
had withdrawn Rs.9,50,000/- from the bank account of the appellant in a
clandestine manner.
16. On 22.1.01 the
respondent gave affidavit before the High Court and got non-bailable warrants
issued against the appellant.
17. The respondent
got an advertisement issued in a national newspaper that the appellant was only
her employee. She got another news item issued cautioning the business
associates to avoid dealing with the appellant.
The findings of the
High Court that these proceedings could not be taken to be such which may
warrant annulment of marriage is wholly unsustainable.
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 mind 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.
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.
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 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.
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.
The High Court ought
to have visualized 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.
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 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.
In our considered
view, looking to the peculiar facts of the case, the High Court was not
justified in setting aside the order of the Trial Court. In our opinion, wisdom
lies in accepting the pragmatic reality of life and take a decision which would
ultimately be conducive in the interest of both the parties.
Consequently, we set
aside the impugned judgment of the High Court and direct that the marriage
between the parties should be dissolved according to the provisions of the
Hindu Marriage Act, 1955. In the extra-ordinary facts and circumstances of the
case, to resolve the problem in the interest of all concerned, while dissolving
the marriage between the parties, we direct the appellant to pay Rs.25,00,000/-
(Rupees Twenty five lacs) to the respondent towards permanent maintenance to be
paid within eight weeks. This amount would include Rs.5,00,000/- (Rupees five
lacs with interest) deposited by the appellant on the direction of the Trial
Court. The respondent would be at liberty to withdraw this amount with
interest. Therefore, now the appellant would pay only Rs.20,00,000/- (Rupees
Twenty lacs) to the respondent within the stipulated period. In case the
appellant fails to pay the amount as indicated above within the stipulated
period, the direction given by us would be of no avail and the appeal shall
stand dismissed. In awarding permanent maintenance we have taken into
consideration the financial standing of the appellant.
Before we part with
this case, on the consideration of the totality of facts, this Court would like
to recommend the Union of India to seriously consider bringing an amendment in
the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage
as a ground for the grant of divorce. A copy of this judgment be sent to the
Secretary, Ministry of Law & Justice, Department of Legal Affairs,
Government of India for taking appropriate steps.
The appeal is
accordingly disposed of. In the facts and circumstances of the case we direct
the parties to bear their own costs.
Please also read the 217 report of Law Commission of India by clicking the link.
http://lawcommissionofindia.nic.in/reports/report217.pdf
