Madhya Pradesh High Court
Disha Kushwaha vs Rituraj Singh on 1 October, 2019
Equivalent citations: (2020) 1 DMC 136, AIR 2019 MADHYA PRADESH 217, (2019) 4 MPLJ 694, (2020) 1 HINDULR 385, AIRONLINE 2019 MP 1408
Author: J.K. Maheshwari
Bench: Anjuli Palo, J.K. Maheshwari
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HIGH COURT OF MADHYA PRADESH
******
Division Bench : Hon'ble Shri Justice J.K. Maheshwari Hon'ble Smt. Justice Anjuli Palo ****** First Appeal No.653/2016 Disha Kushwaha
-Versus-
Rituraj Singh Writ Petition No. 5967/2015 Ritu Raj Singh v.
Smt. Disha Kushwaha (Singh) M.Cr.C. No. 16660/2015 Ritu Raj Singh v.
Smt. Disha Singh & others ****** 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 Hindu Marriage Act. The appellant wife has also assailed the judgment passed in Civil Suit No.464-A/2015 filed by her for restitution of conjugal rights against the respondent which was dismissed by the same order. W.P. No. 5967/2015 has been filed by the husband against grant of maintenance pendente lite vide order dated 5.1.2015 passed in R.C.S. No. 828- A/2014; and M.Cr.C. No. 16660/2015 has been filed by the husband under Section 482 of the Cr.P.C. for setting aside of the order dated 12.1.2015 passed in M.J.C. No. 450/2014 granting maintenance of Rs. 35,000/- to the wife.
3. The facts of the case, in brief, are that the appellant is legally wedded wife of the respondent. The marriage was solemnized on 06.02.1999 as per Hindu rituals. They are having three children by the said wedlock i.e. twin daughters and a son. The appellant along with the children is residing separately from the respondent since February, 2013 and they are litigating in the Court by filing various Court cases. Still the wife wish to reside with the husband but he is not ready to live with wife alleging her cruelty.
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4. The respondent husband filed a suit under Section 13 of the Hindu Marriage Act inter alia pleading that immediate after the marriage the appellant wife ill-treated him, having fit of anger and she use to lose her tamper and abuse him. She also doubted on his character alleging his illicit relation with several women out of which some are co-workers in the same department and office. The appellant- wife use to quarrel with the neighbours, due to which he took transfer from the State of Arunachal Pradesh to Andaman Nicobar. Even by passage of time, there was no change in her behavior and she did not care to maintain the dignity and reputation of the respondent. It is also alleged that she use to propagate, the respondent is a corrupt man and threatened him to file a criminal case, thereby he would lose his job. In recent past he joined on an important administrative post in All India Institute of Medical Sciences, Bhopal. But due to intolerable behaviour of the appellant, he is living separately in the guest house of the AIIMS since February, 2013. While the appellant and his children are residing in his official accommodation. The husband alleged that the appellant made all efforts to harass and torture him. The respondent alleged that the appellant-wife believes in performing witchcraft and also alleged that mother and sister of the respondent have controlled by witchcraft. At several occasion, in front of the senior officials after reaching office, the appellant insulted the respondent. It is said, there is no possibility of change in her behavior, however, as per the said averments, on the ground of cruelty, the respondent-husband prayed for dissolution of marriage.
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5. On filing the written statement, before the Family Court the appellant-wife has denied all the allegations and pleaded that after the marriage her husband and his family members regularly pressurized the appellant to bring dowry. They have mentally and physically tortured her due to non-fulfillment of dowry demand. As per the appellant, the respondent husband is drunkard and on consuming liquor he use to beat the appellant to bring Rs.25 Lakh and once her clothes were burnt. On 20th August, 2004, the appellant gave birth to twin (daughters). All expenses of delivery were born by the parents of the appellant. The family members of the respondent-husband were not happy due to birth to two female children. It is said, the ill-treatment of respondent husband continued till 2012. Thereafter appellant gave birth to a male child on 19.12.2012. In January, 2013, the respondent was transferred to AIIMS, Bhopal as Deputy Director, at that time appellant-wife along with the children came Bhopal and started to reside with respondent- husband in Government Quarter situated in AIIMS campus. But at Bhopal in evening the respondent after taking liquor use to beat and made attempt to oust her from the house. When the appellant refused to leave the house, the respondent himself started living separately in the guest house of the AIIMS situated in the same premises. In view of the foregoing, the appellant prayed for dismissal of the suit preferred by the respondent under Section 13 (1) of the Hindu 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 Puja Suri v. Bijoy Suri (decided on 26th May, 2016 in Second Appeal No.258/2012 by High Court of Allahabad) 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 Hindu 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 11 years is to be accepted by this Court, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de facto, it should unless there are special reasons to the contrary, cease to exist de jure also. In general, it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further continuance is in general not merely useless but mischievous."
18. In the history of irretrievable breakdown of marriage the Matrimonial Causes Act, 1959 of the Commonwealth of Australia provides for divorce as the ground to breakdown of marriage. In this context, the breakdown situation exists when either or both spouse are no longer able or wiling to live with each other, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties. In other words, it can be defined as failure in the matrimonial relationship or such circumstances adverse to that relationship that no reasonable probability remains to the spouses to live together as husband and wife by mutual comfort and support. It also signifies the breakdown in the cases where neither party is at fault or fault is of such a nature that neither party wishes to divulge it and yet the marriage has ceased to exist; Meaning thereby the irretrievable breakdown of marriage, refers to a situation where the emotional bonds, respect to each other, trust etc, which is the very foundation of a marriage have 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 section 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 sections 3(3) and 5 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 section 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 section 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 section 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 section 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 section 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 section 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 section 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 17 matrimonial offences, increase bitterness and widen the rigt that is already there. Separation for a continuous period of at least two years consequent upon a decision of at least one of the parties not to live with the other should act as the sole evidence of marriage breakdown.
22. The Law Commission said that once the parties have separated, which continued for a sufficient length of time and one of them presented the petition for divorce, it can very well be presumed that the marriage has broken down. The Court, no doubt, should endeavour to reconcile, the parties; yet if it is found that the breakdown is irretrievable then divorce should not be withheld. Meaning thereby the consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties. In chapter IV of the said report, the merits and demerits of irretrievable breakdown of marriage was considered and the Commission observed that the grounds contained in Hindu 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:-
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"it is thus seen that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform. Surely the time has now come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste. It appears to be necessary to introduce irretrievable break down of marriage and mutual consent as grounds of divorce in all cases. The case before us is an illustration of a case where the parties are bound together by a marital tie which is better untied. There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. We suggest that the time has come for the intervention of the legislature in these matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situations in which couples like the present have find themselves in. We direct that a copy of this order may be forwarded to the Ministry of Law and Justice for such action as they may deem fit to take. In the meanwhile, let notice go to the respondents."
25. Thereafter, the Apex Court in the case of V. Bhagat Vs. D. Bhagat (Mrs.) reported in (1994) 1 SCC 337 while dealing with the case of cruelty, in specific mental cruelty, the marriage was declared as dissolved in view of the irretrievable breakdown of marriage in the peculiar circumstances of the case. The Court in Para 20 while examining the allegation made by the parties observed as under:-
"20. ......................She is fully aware that the marriage is long dead and over. It is her case that the petitioner is genetically insane. Despite all that, she says that she wants to live with the petitioner. The 20 obvious conclusion is that she has resolved to live in agony only to make life a miserable hell for the petitioner as well. This type of callous attitude in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the petitioner with mental cruelty. It is abundantly clear that the marriage between the parties should be dissolved under Section 13(1)(i-a) of Hindu Marriage Act and we do so accordingly. Having regard to the peculiar facts and circumstances of this case and its progress over the last eight years- detailed hereinbefore- we are of the opinion that it is a fit case for cutting across the procedural objections to give a quietus to the matter."
26. The Apex Court in Sandhya Rani Versus Kalyanram Narayanan reported in 1994 Supp (2) SCC 588 though in a crisp but on concrete basis due to living of parties separately from last more than 3 years and having no chance to come together observed granting the decree as under:-
1. We have heard the parties in person.
Learned counsel for the parties have also assisted us. It is not disputed that the parties are living separately for the last more than three years. We have no doubt in our mind that the marriage between the parties has irretrievably broken down.
There is no chance whatsoever of their coming together. The parties have made joint request for mutual divorce. The written request by the parties has been placed on the record. In order to do complete justice between the parties, we are inclined to grant decree in divorce on the following agreed terms:
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"1. The respondent Kalyanram Narayanan gives up all his claims in respect of plot No. 119 in V.G.P. Pushpa Nagar which is in the name of the petitioner Sandhya Rani. The said plot measures 3200 sq. yds.;
2. Two-third share in the said plot shall go to Kartak Narain son born out of wedlock. The remaining 1/3 share shall be owned by the petitioner Sandhya Rani;
3.the title deed in respect of the property has been handed over to the petitioner Sandhya Rani; and
4. The petitioner Sandhya Rani shall not claim any maintenance past or future, for herself or for her son Kartak Narain from the respondent."
2. We grant decree for divorce in the above terms. The Divorce Petition No. O.P. 1019 of 1992 filed by the respondent (husband) pending before the Principal Family Court, Madras shall stand disposed in the above terms. No costs.
27. In Kanchan Devi (Smt.) Vs. Promod Kumar Mittal and another reported in (1996) 8 SCC 90, the Apex Court found that the parties were living separately for last more than 10 years and there is no possibility of reconciliation. On being found by the parties that the marriage has been irretrievably brokedown, they mutually agreed to dissolve the marriage. The Apex Court has observed as under:-
3. During the pendency of the proceedings in this Court, an effort was made for reconciliation between the parties. It was admitted by the learned counsel for the parties that the parties have not been living together for the last more than one decade as husband and wife and their relationship was totally strained and bitter against each other. On 7-12-1995, it appeared to us that there was no possibility of any reconciliation 22 between the parties and that the marriage between them had irretrievably broken down. The respondent through his learned counsel categorically submitted that there was no possibility of the parties remaining together as husband and wife and that position was not disputed by the learned counsel appearing for the appellant."
4. XXX XXX XXX
5. XXX XXX XXX
6. In view of the peculiar facts and circumstances of the case and being satisfied that the marriage between the appellant and the respondent has irretrievably broken down and that there is no possibility of reconciliation, we in exercise of our powers under Article 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 Hindu Marriage Act, 1955- "Irretrievable Breakdown of Marriage" - dated 7-4-1978 throw much light on the matter:
"Irretrievable breakdown of marriage is now considered, in the laws of a number of countries, a good ground of dissolving the marriage by granting a decree of divorce.
Proof of such a breakdown would be that the husband and wife have separated and have been living apart for, say, a period 23 of five or ten years and it has become impossible to resurrect the marriage or to reunite the parties. It is stated that once it is known that there are no prospects of the success of the marriage, to drag the legal tie acts as a cruelty to the spouse and gives rise to crime and even abuse or religion to obtain annulment of marriage.
The theoretical basis for introducing irretrievable breakdown as a ground of divorce is one with which, by now, lawyers and others have become familiar. Restricting the ground of divorce to a particular offence or matrimonial disability, it is urged, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a facade, when the emotional and other bonds which are of the essence of marriage have disappeared.
After the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce. The parties alone can decide whether their mutual relationship provides the fulfillment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they 24 may regulate their relationship in the changed circumstances.
Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one's offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage- 'breakdown' - and if it continues for a fairly long period, it would indicate destruction of the essence of marriage- 'irretrievable breakdown'".
29. In A. Jayachandra Versus Aneel Kaur reported in (2005) 2 SCC 22, three Judges' Bench of Supreme Court was having an occasion to consider the case of divorce on the basis of cruelty including mental cruelty. While examining the pleadings and the evidence brought on record, the Court emphasized that the allegation of cruelty is of such nature in which resumption of marriage is not possible, however, referring various decisions, the Court observed that irretrievable breaking of marriage is not one of the statutory grounds on which court can direct dissolution of marriage, this Court has with a view to do complete justice and shorten the agony of the parties engaged in long- drawn legal battle, directed in those cases dissolution of marriage. The Apex Court in Para-17 has observed as under:-
17. Several decisions, as noted above, were cited by learned counsel for the respondent to contend that even if marriage 25 has broken down irretrievably decree of divorce cannot be passed. In all these cases it has been categorically held that in extreme cases the court can direct dissolution of marriage on the ground that the marriage had broken down irretrievably as is clear from para 9 of Shyam Sunder case. The factual position in each of the other cases is also distinguishable. It was held that long absence of physical company cannot be a ground for divorce if the same was on account of the husband's conduct. In Shyam Sunder case it was noted that the husband was leading adulterous life and he cannot take advantage of his wife shunning his company. Though the High Court held by the impugned judgment that the said case was similar, it unfortunately failed to notice the relevant factual difference in the two cases. It is true that irretrievable breaking of marriage is not one of the statutory grounds on which court can direct dissolution of marriage, this Court has with a view to do complete justice and shorten the agony of the parties engaged in long-
drawn legal battle, directed in those cases dissolution of marriage. But as noted in the said cases themselves, those were exceptional cases.
30. The Apex Court in Durga Prasanna Tripathy Versus Arundhati Tripathy reported in (2005) 7 SCC 353 taken into consideration cruelty and desertion as a ground for divorce which resulted into irretrievable breakdown of marriage. The Apex Court referred the situation as emerged between the parties and observed as under:-
21. In our view that 14 years have elapsed since the appellant and the respondent have been separated and there is no possibility of the appellant and the respondent resuming the normal marital life even though the 26 respondent is willing to join her husband.
There has been an irretrievable breakdown of marriage between the appellant and the respondent. The respondent has also preferred to keep silent about her absence during the death of her father-in-law and during the marriage ceremony of her brother-in-law. The complaint before the Mahila Commission does not implicate the appellant for dowry harassment though the respondent in her evidence before the Family Court has alleged dowry harassment by the appellant. It is pertinent to mention here that a complaint before the Maila Commission was lodged after 7 years of the marriage alleging torture for dowry by the mother-in-law and brother-in-law during the initial years of marriage. The said complaint was filed in 1998 that is only after notice was issued by the Family Court on 27-3- 1997 on the application filed by the appellant under Section 13 of the Hindu Marriage Act. The Family Court, on examination of the evidence on record, and having observed the demeanour of the witnesses concluded that the appellant had proved that the respondent is not only cruel but also deserted him for more than 7 years.
The desertion as on date is more than 14 years and, therefore, in our view there has been an irretrievable breakdown of marriage between the appellant and the respondent. Even the Conciliation Officer before the Family Court gave its report that the respondent was willing to live with the appellant on the condition that they lived separately from his family. The respondent in her evidence had not disputed the fact that attempts have been made by the appellant and his family to bring her back to the matrimonial home for leading a conjugal life with the appellant. Apart from that, relationship between the appellant and the 27 respondent have become strained over years due to the desertion of the appellant by the respondent for several years. Under the circumstances, the appellant had proved before the Family Court both the factum of separation as well as animus deserendi which are the essential elements of desertion. The evidence adduced by the respondent before the Family Court belies her stand taken by her before the Family Court. Enough instances of cruelty meted out by the respondent to the appellant were cited before the Family Court and the Family Court being convinced granted the decree of divorce. The harassment by the in-
laws of the respondent was an afterthought since the same was alleged after a gap of 7 years of marriage and desertion by the respondent. The appellant having failed in his efforts to get back the respondent to her matrimonial home and having faced the trauma of performing the last rites of his deceased father without the respondent and having faced the ill-treatment meted out by the respondent o him and his family had, in our opinion, no other efficacious remedy but to approach the Family Court for decree of divorce.
Thereafter in the same Judgment in Paras 28 and 29, granted decree of divorce considering the circumstances subject to award of permanent alimony.
28. The facts and circumstances in the above three cases disclose that reunion is impossible. The case on hand is one such. It is not in dispute that the appellant and the respondent are living away for the last 14 years. It is also true that a good part of the lives of both the parties has been consumed in this litigation. As observed by this Court, the end is not in sight. The assertion of the 28 wife through her learned counsel at the time of hearing appears to be impractical. It is also a matter of record that dislike for each other was burning hot.
29. Before parting with this case, we think it necessary to say the following:
Marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. The Family Court has directed the appellant to pay a sum of Rs. 50,000 towards permanent alimony to the respondent and pursuant to such direction the appellant had deposited the amount by way of bank draft. Considering the status of parties and the economic condition of the appellant who is facing criminal prosecution and out of job and also considering the status of the wife who is employed, we feel that a further sum of Rs. 1 lakh by way of permanent alimony would meet the ends of justice. This shall be paid by the appellant within 3 months from today by an account payee demand draft drawn in favour of the respondent Arundhati Tripathy and the dissolution shall come into effect when the demand draft is drawn and furnished to the respondent.
The similar view has been reaffirmed by the Supreme Court in the case of Vinita Saxena Versus Pankaj Pandit reported in (2006) 3 SCC 778.29
31. Thereafter the Apex Court in the case of Naveen Kohli Vs. Neelu Kohli reported in (2006) 4 SCC 558 in a case of cruelty (physical and mental) has considered the concept of irretrievable breakdown of marriage has observed that there should be statutory ground for divorce. The Apex Court referring the 71 st Report of Law Commission of India observed as under:-
80. The High Court ought to have considered the repercussions, consequences, impact and ramifications of all the criminal and other proceedings initiated by the parties against each other in the proper perspective. For illustration, the High Court has mentioned that so far as the publication of the news items is concerned, the status of the husband in a registered company was only that of an employee and if any news item is published, in such a situation, it could not, by any stretch of imagination be taken to have lowered the prestige of the husband. In next para 69 of the judgment that in one of the news items what has been indicated was that in the Company Nikhil Rubber (P) Ltd., the appellant was only a director along with Mrs. Neelu Kohli who held 94.5% shares of Rs. 100 each in the Company. The news item further indicated that Naveen Kohli was acting against the spirit of the article of association of Nikhil Rubber (P) Ltd. had caused immense loss of business and goodwill. He had stealthily removed produce of the Company, besides diverted orders of foreign buyers to his proprietorship firm M/s. Navneet Elastomers. He had opened the bank account with forged signatures of Mrs. Neelu Kohli and fabricated the resolution of the Board of Directors of the Company.
Statutory authority under the Companies 30 Act had refused to register the documents filed by Mr. Naveen Kohli and had issues show-cause notice. All business associates were cautioned to avoid dealing with him alone. Neither the Company nor Mrs. Neelu Kohli shall be liable for the acts of Mr. Naveen Kohli. Despite the aforementioned finding that the news item was intended to caution business associates to avoid dealing with the appellant then to come to this finding in the next para that it will by no stretch of imagination result in mental cruelty is wholly untenable.
83. Even at this stage, the respondent does not want divorce by mutual consent.
From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our minds that the respondent is bent upon treating the appellant with mental cruelty.
It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again.
84. The High Court ought to have appreciated that there is no acceptable way in which the parties can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist.
85. Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is 31 totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality.
86. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.
87. The High Court ought to have visualised that preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties.
88. The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for 32 the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life.
On the basis of the same, the Court declared the marriage dissolved setting aside the judgment of the High Court.
32. In Anil Kumar Jain Vs. Maya Jain reported in (2009) 10 SCC 415, two Judges' Bench of Supreme Court observed that irretrievable breakdown of marriage can only be ordered by the Supreme Court in exercise of power under Article 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 Hindu 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 Hindu 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 Hindu 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 Hindu 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. Under 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 Hindu 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 : Ritu Raj Singh v. Smt. Disha Kushwaha (Singh)
M.Cr.C. No. 16660/2015 :Ritu 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 Hindu 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 *******