Jharkhand High Court
Against The Judgment Dated 03.08.2022 ... vs Moushmi Srivastava on 27 November, 2024
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
F.A. No. 107 of 2022
Against the judgment dated 03.08.2022 (decree signed on
10.08.2022) passed by Sri Gati Krishna Tewary, learned
Additional Principal Judge, Additional Family Court-II,
East Singhbhum, Jamshedpur in Original Suit No. 628 of
2017.
Anuj Kumar Sinha, S/o Sri Rabindra Prasad Sinha, Permanent
resident of Duplex No. M-03, Sun Shine Enclave, Dimna Road,
Mango, P.S.M.G.M. Town Jamshedpur, Dist.- Singhbhum East
(Jharkhand), Presently posted at C.P.W.D., B.H.U., Varanashi,
P.O. & P.S.- Lamka, Dist.- Varnashi (U.P.) ... Appellant
Versus
Moushmi Srivastava, W/o Anuj Kumar Sinha, D/o D.K.
Srivastava, Resident of Holding No. 221/2/1, Road No. 14
Adityapur-2, P.S.-R.I.T., P.O.-Adityapur, Dist.-Saraikella-
Kharsawan (Jharkhand). ... Respondent
----
PRESENT HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
----
For the Appellant : Mr. Arun Kumar Pandey, Adv. For the Respondent : Mr. Ankit Kumar, Adv.
----
Dated: 27/11/2024 Rongon Mukhopadhyay, J. : 1. Heard Mr. Arun Kumar Pandey, learned counsel for the appellant and Mr. Ankit Kumar, learned counsel for the respondent.
2. This appeal is directed against the judgment and decree dated 03-08-2022 (decree signed on 10-08-2022) passed by Sri Gati Krishna Tewary, learned Additional Principal Judge, Additional Family Court-II, East Singhbhum, Jamshedpur in Original Suit No. 628 of 2017, whereby and wherever the suit preferred by the appellant under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 has been dismissed.
3. For the sake of convenience, both the parties are referred to in this judgment as per their status before the learned trial court.
4. The petitioner/husband (Appellant herein) had preferred a suit for dissolution of his marriage with the respondent (respondent herein) under Section 13(1)(ia)&(ib) of the Hindu Marriage Act, 1955 in which, inter alia, it has been stated that the marriage of the petitioner was solemnized with the respondent on 23-01-2011 at Adityapur, Holding No. 221/2/1, Road No. 14, Adityapur, P.S. R.I.T, District-Saraikela, Kharsawan and the reception was held on 25-01-2011 at Sunshine Enclave, Dimna Road, Mango, Jamshedpur. After the marriage, both the parties started residing together as husband and wife at N-03 Duplex, Sunshine Enclave, Dimna Road, Mango. After two months of the marriage, the petitioner took the respondent to Varanasi where he was posted as a Junior Engineer in C.P.W.D. where both started residing together and when the respondent became pregnant, she was taken to his home at Jamshedpur by the petitioner. A child was born on 31-12- 2011 at T.M.H Jamshedpur. It has been stated that the respondent is an ill-tempered lady, who never liked his parents and relatives and never cared for them rather quarreled with them. After the birth of the child, the respondent went to her parents' place at Adityapur and, on one pretext or the other, refused to come back to her matrimonial house. The respondent was requested by the petitioner when the child was six months old to return back to her matrimonial house but she refused and even showed her reluctance in staying with the petitioner at Varanasi. The respondent always used to demand a large sum of money from the petitioner, though the petitioner used to send Rs. 6,000- Rs. 10,000 per month to the respondent and in June 2012, she had demanded an amount of Rs 2,00,000/- without indicating the necessity for such demand. It has been stated that the respondent had filed a complaint case against the petitioner and his relatives with false allegations vide Case No. C/1 1630/12. Subsequently, on the request of the petitioner, the matter was compromised and the respondent came back to the house of the petitioner. The petitioner and the respondent thereafter, led a peaceful marital life which however, was short-lived as the respondent, on being taken to Varanasi, always pressurized the petitioner of her desire to go to Jamshedpur and ultimately, the
2|Page respondent was taken by the petitioner to Jamshedpur. On 19-11- 2013, the respondent had, all of a sudden, left her matrimonial house at Jamshedpur with her child as well as her belongings for her parents' place and on the next day, i.e., 20-11-2013, she had filed a petition in the complaint case with the allegation that she was ill-treated at her matrimonial house. Later on, the respondent lodged an F.I.R. in Mahila P.S. being Mahila P.S. Case No. 20/2013 in which the Police, after investigation, had submitted an F.R.T. which has been accepted by the Court as no protest petition was filed by the respondent. The respondent has also filed a case under Section 125 Cr.P.C. vide Case No. 175/12 in which the petitioner has been directed to make payment of maintenance of Rs. 10,000 per month to the respondent and Rs. 5,000 per month for his minor son. The petitioner has been regularly making payment of the maintenance amount. It has been stated that the petitioner, on several occasions, had tried to settle the dispute but the respondent had refused to lead conjugal life with the petitioner. The respondent has lost interest on the petitioner and has failed to perform her marital obligations towards the petitioner. The petitioner has a reasonable apprehension that it is impossible for the petitioner to continue with the conjugal relationship with the respondent as it would be injurious to the life of the petitioner.
5. The respondent, on being noticed, had appeared and filed a written statement in which she has denied the allegations levelled against her in the application seeking dissolution of marriage. It is true that after some times of the marriage the respondent was taken to Varanasi by the petitioner where she conceived and thereafter, she was taken to her matrimonial house at Mango, Jamshedpur where she delivered a child on 31-12-2011. It has been stated that after the marriage, when the Respondent went to her matrimonial house at Mango, she was taunted and tortured for bringing less dowry and cheap articles given during marriage, though the fact is, that the parents of the respondent had given a cheque of Rs.
3|Page 4,25,000/- and Rs. 5,00,000/- cash as well as valuable articles to the petitioner. Inspite of the dowry given, the petitioner and his parents were demanding Rs. 7,00,000/- and for its non-fulfilment the respondent was subjected to torture and assault. The petitioner had also demanded Rs. 7,00,000/- from the respondent even at Varanasi and assaulted her when she expressed her inability to meet such demand. When the respondent was brought to her matrimonial house at Mango, Jamshedpur her elder sister had come to meet her, but she was misbehaved with by the family members of the petitioner. Similar treatment was meted out to the parents of the respondent when they had gone to meet the respondent and a demand of Rs. 7,00,000/- was also put forward, which they could not meet, and ultimately the parents of the respondent were forced to take back the respondent with them and since then the respondent is residing at her parents' place. It has been stated that when the news of the birth of a child was given to the petitioner and his parents, none of them came and they even failed to attend the "chatthi" of the child. Since the petitioner and his parents left her at her parental house and persisted with their demand of Rs. 7,00,000/-, a case was filed by the respondent being C1-1630/12 against the husband and in-laws of the respondent. A case under Section 125 Cr.P.C. was also filed by the respondent in which the Principal Judge, Family Court, had directed the petitioner to pay Rs. 10,000/- per month as maintenance to the respondent and Rs. 5,000/- per month to the child. It has been stated that the respondent is a well-behaved and adjustable lady and had always tried her best to stay with the petitioner and her parents-in-law. A case under Section 498A/406/34 IPC and under Section 3/4 D.P. Act was filed by the respondent which is pending. When the matter was settled, the respondent again went to Varanasi with the petitioner but she was once again subjected to torture and assault. The respondent has expressed her desire to live with the petitioner and fulfil her marital obligations.
4|Page
6. Based on the pleadings of the parties, the following issues were framed for adjudication:
1. Is the suit maintainable in its present form?
2. Whether the petitioner has got valid cause of action for the suit?
3. Whether the petitioner has suffered mental cruelty from the hands of the respondent?
4. Whether the respondent has deserted the petitioner prior to two years from the date of filing of this suit?
5. Whether the petitioner is entitled for decree of divorce on the ground of cruelty and desertion?
6. Whether the petitioner is entitled for any other relief or reliefs claim in the suit?
7. The petitioner has examined as many as two witnesses in support of his case including himself:
P.W.1 Anuj Kumar Sinha is the petitioner, who has stated that his marriage was solemnized with the respondent on 23-01- 2011 as per Hindu rites and customs at Adityapur and his father had spent Rs. 4-5 lakhs for the marriage. After the marriage, he started living at Sunshine Enclave, Dimna Road with the respondent as husband and wife. Thereafter, the respondent was taken to Varanasi, at his workplace, where the respondent conceived for which, she was brought back to his place at Mango and on 31-12-2011, the respondent delivered a child. The respondent has an irritable nature and she never preferred carrying out her domestic responsibilities towards her in-laws. After the birth of the child, the respondent went to her parent's place and on some pretext or the other she refused to come back to her matrimonial house. When the child became 6 months old, he tried to bring back the respondent but she refused to return to her matrimonial house or to his workplace at Varanasi on the ground that her son is still an infant. The respondent used to demand a huge sum of money from him, though he used to send
5|Page Rs. 6,000-10,000 per month to the respondent. In June 2012, the respondent had demanded Rs. 2,00,000/- from the petitioner, and on being asked the necessity of such a huge amount, she had disconnected the call. On 23-06-2012, the respondent had instituted a false case against him and his family members in Case No. 1630/12, after which the matter was compromised and the respondent started residing with him. She was thereafter taken to Varanasi from where, on account of the pressure created by the respondent, she was brought to Jamshedpur. On 19-11-2013, on the pretext that the father of the respondent is ill, the respondent left for her parental house along with her child and her belongings and on 20-11-2013, she had filed a petition in Case No. 1630/12, wherein she had stated about the torture committed upon her in her matrimonial house which was the cause for leaving the house. He has stated that on 07-12-2013, the respondent had filed a case at Sakchi P.S. against him and his family members and in the said case, after investigation Police had submitted F.R.T., which was accepted by the Court since no protest petition was filed by the respondent. The respondent had also filed a case under section 125 Cr.P.C. being Misc. Case No. 172/12 in which an order was passed on 01-08-2017, wherein he was directed to pay monthly maintenance of Rs. 10,000/- to the respondent and Rs. 5,000/- to the child. He had, on several occasions, tried to compromise the issue but the respondent had shown her disinclination to continue with the marital ties with him. The respondent has treated him and his family members with cruelty and had left him without any reason.
In cross-examination he has deposed that at present he is posted at Allahabad as an Assistant Engineer. He has denied that during the stay of the respondent at Mango and Varanasi, his parents and brother had demanded an amount of Rs. 7 lakhs as dowry. From 19-11-2013, the respondent is staying at her parents' place. It is incorrect to claim that he and his family members had
6|Page not made any efforts to bring her back to her matrimonial house. He does not want to reside with the respondent because of the cruelty committed by her.
P.W.2 Ravindra Prasad Sinha is the father of the petitioner who has reiterated what had been stated by P.W.1 in his sworn statement.
In cross-examination, he has denied of either he or the petitioner demanding dowry from the respondent. He has also denied of assaulting and ousting the respondent whenever she came to reside at her matrimonial house.
8. The respondent has examined herself as a witness:
R.W.1 Moushmi Srivastava has stated about solemnization of her marriage with the petitioner on 23-01-2011 and at the time of marriage her father had given a cheque of Rs. 4,25,000/-, cash of Rs. 5,00,000/- and jewelries as well as household appliances to the petitioner and his parents. After 2-3 days of her marriage, the petitioner and her parents-in-law had started making comments about the quality of the articles given in marriage. They also complained about getting less dowry and claimed that considering the fact that the petitioner is an engineer, they should have been given Rs. 20 lakhs as dowry. Due to non-payment of the dowry amount, she was subjected to physical and mental torture. She has stated that the petitioner and her parents were demanding an amount of Rs. 7 lakhs and on its non-fulfillment, she was tortured and restrictions were also put on her food. In March, 2011 she was taken by the petitioner to Varanasi where also she was subjected to torture. In the meantime, she conceived but her mother-in-law deterred her in informing her parents about her pregnancy. In October, 2011 the petitioner had taken her to his residence at Mango, where once again the demand of Rs. 7 lakhs was made and she was tortured and humiliated for non-fulfillment of the said demand. When her parents came to meet her, they were also misbehaved with and taunts were directed towards her for bringing
7|Page less dowry. At the insistence of her in-laws, she was taken to her parental place by her parents. She has stated that she was admitted in T.M.H. and on 31-12-2011, she gave birth to a male child. This information was given to her in-laws, but none had come to visit her. Inspite of the best efforts made by her parents, neither her husband nor her parents-in-law had tried to come and ascertain about her whereabouts. Having no alternative, she had filed a Criminal Case being C/1-1630/12 against her husband, parents-in-law, brother-in-law and sister-in-law which is at present, pending. She had expressed her desire to return back to her matrimonial house, but her husband and in-laws refused to keep her. Her husband and in-laws are not making any payment for her maintenance as also the maintenance of the child. She had filed a case for maintenance being Misc. Case No. 172/12 and the Court ordered the petitioner to pay maintenance of Rs. 10,000 per month to her and Rs. 5,000 per month to the child. She had always cared about her husband and in-laws and had carried out her domestic responsibilities as well.
In cross-examination, she has deposed that after 2 months of her marriage, she had gone with the petitioner to Varanasi where she stayed for 9 months. After she was released from T.M.H., she had gone to her parents' house. She was admitted in the hospital by her father. She had stayed at her matrimonial house at Mango for 6 months. In the case under Section 498A IPC, after the matter was compromised, she was taken to Varanasi by the petitioner where she was assaulted and once again left at her parents' place. In the complaint case, she had also made an application for being tortured by the petitioner. On 07-12-2013, she had filed a case at Sakchi P.S. against the petitioner and her in-laws and they had expressed their intention of settling the dispute but nobody came to get the matter finally settled. In the said case, Police had submitted final form.
9. It has been submitted by Mr. Arun Kumar Pandey, learned
8|Page counsel for the petitioner/appellant that after marriage the petitioner and his family members were subjected to cruelty and in support of which several instances have been given by the petitioner. The respondent had instituted a false criminal case against the petitioner and his family members before Sakchi P.S. which would be evident from the fact that the final report was submitted in the said case. It has been submitted that the respondent has deserted the petitioner since 2013 and all efforts made by the petitioner to bring her back in order to resume their marital life proved futile. The marriage has come to a dead end and has broken down irretrievably.
10. Mr. Ankit Kumar learned counsel for the respondent has submitted that it was the respondent who was, in fact, at the receiving end of the torture inflicted upon her by the petitioner and her in-laws and filing of a complaint case would be suggestive of the said fact. It has been submitted that the petitioner has failed to prove willful abandonment on the part of the respondent which is a predominant feature in his plea of desertion.
11. We have heard the learned counsel for the respective sides and have also perused the trial court records.
12. Issue Nos. 3 and 4 are the core issues on which hinges the fate of the suit. 'Cruelty' has not been defined in the Hindu Marriage Act, 1955. However, over the years, cruelty has been conceptualized in the various judgments of the Honorable Supreme Court. To quote a few, cruelty has been considered in the case of A. Jayachandra versus Aneel Kaur reported in (2005) 2 SCC 22 in the following manner.
"10. 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
9|Page 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.
11. 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 Sobh Rani v. Madhukar Reddi, AIR 1988 SC 121).
12. 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".
10 | P a g e 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 an 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."
In the case of Joydeep Majumdar versus Bharti Jaiswal Majumdar reported in (2021) 3 SCC 742, it has been held as follows:
"10. For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse. The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party. In Samar Ghosh Vs. Jaya Ghosh1, this Court gave illustrative cases where inference of mental cruelty could be drawn even while emphasizing that no uniform standard can be laid down and each case will have to be decided on its own facts."
13. What could be gathered from the case of the petitioner, the instances of cruelty, as depicted by the petitioner, and his witness are at a premium. The respondent is said to have refrained from performing her domestic duties in her matrimonial house and her nature was not conducive to a healthy marital tie. Instances have been mentioned about the respondent going to her parents' place 11 | P a g e and not returning back to her matrimonial house despite the best efforts made by the petitioner. A false case was also lodged at Sakchi P.S., which seems to be the primary focus of the petitioner in proving cruelty meted out to him by the respondent.
14. The respondent has denied such assertion of the petitioner, while at the same time, claiming to have been tortured at her matrimonial house at Mango, as well as at the workplace of the petitioner at Varanasi. She has also stated about her and her child being not maintained by the petitioner for which she had to approach the Court for grant of maintenance.
15. The instances given by the petitioner does not at all lead us to believe that it would be an impossibility for the petitioner to resume his marital ties with the respondent. In fact, the same are the normal wear and tear a nuptial relationship undergoes. The cruelty as alleged, seems to assume a different hue when we consider the fact that a complaint case was instituted by the respondent against the petitioner and his family members which is said to be pending. The criminal case instituted at Sakchi P.S. might have ended in submission of final report but the same solely would not be the basis of proving cruelty when the other instances, adversarial to the petitioner, are taken into consideration. It would seem that the demand of dowry has been consistent as long as the respondent stayed at Mango and at Varanasi. The petitioner has, therefore, miserably failed to prove cruelty.
16. So far as desertion is concerned, the same is based on both the parties staying separate since the year 2013. The reasons for staying apart are the torture and demand of dowry made by the petitioner and his family members and the petitioner has failed to show that the respondent had left her matrimonial house on her own volition without any reasonable excuse. There has not been any willful abandonment of the petitioner by the respondent and the act of the respondent would not constitute desertion. This issue has also been rightly answered by the learned trial court in favor of 12 | P a g e the respondent and against the petitioner.
17. Mr. Arun Kr. Pandey, learned counsel for the petitioner/appellant has referred to the case of K. Srinivas versus K. Sunita reported in (2014) 16 SCC 34, wherein it has been held as follows:
"3. Irretrievable breakdown of marriage as a ground for divorce has not found statutory acceptance till date. Under Article 142 of the Constitution, the Supreme Court has plenary powers "to pass such decree or make such order as is necessary for doing complete justice in any case or order pending before it". This power, however, has not been bestowed by our Constitution on any other Court. It is for these reasons that we have confined arguments only to the aspect of whether the filing of a false criminal complaint sufficiently proves matrimonial cruelty as would entitle the injured party to claim dissolution of marriage. It will be relevant to mention that the Law Commission of India in its Reports in 1978 as well as in 2009 has recommended the introduction of irretrievable breakdown of marriage as a ground for dissolution of marriage; the Marriage Laws (Amendment) Bill of 2013 incorporating the ground has even received the assent of the Rajya Sabha. It is, however, highly debatable whether, in the Indian situation, where there is rampant oppression of women, such a ground would at all be expedient. But that controversy will be considered by the Lok Sabha.
5. The Respondent-Wife has admitted in her cross- examination that she did not mention all the incidents on which her Complaint is predicated, in her statement under Section 161 of the Cr.P.C. It is not her case that she had actually narrated all these facts to the Investigating Officer, but that he had neglected to mention them. This, it seems to us, is clearly indicative of the fact that the criminal complaint was a contrived afterthought. We affirm the view of the High Court that the criminal complaint was "ill advised". Adding thereto is the factor that the High Court had been informed of the acquittal of the Appellant-Husband and members of his family. In these circumstances, the High Court ought to have concluded that the Respondent-Wife knowingly and intentionally filed a false complaint, calculated to embarrass and incarcerate the Appellant and seven members of his family and that such conduct unquestionably constitutes cruelty as postulated in Section 13(1)(ia) of the Hindu Marriage Act."
He has also referred to the case of Sivasankaran versus Santhimeenal reported in (2022) 15 SCC 742 in which it has been 13 | P a g e held as follows:
"17. In R. Srinivas Kumar (supra), the parties had been living apart for 22 years and all endeavours to save the marriage had failed. We may note that in Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234, it was opined by this Court that courts can dissolve a marriage as irretrievably broken down only when it is impossible to save the marriage, all efforts have been made in that regard, the Court is convinced beyond any doubt that there is actually no chance of the marriage surviving, and it is broken beyond repair. It could be useful to reproduce the observations made in para 5.2 to para 8 as under:
"5.2. In Naveen Kohli [Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558] , a three-Judge Bench of this Court has observed as under :
"74. ... 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 does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
***
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 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. ...
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."
(emphasis supplied) A similar view has been expressed in Samar Ghosh 14 | P a g e [Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511].
6. In the similar set of facts and circumstances of the case, this Court in Sukhendu Das [Sukhendu Das v. Rita Mukherjee, (2017) 9 SCC 632 : (2017) 4 SCC (Civ) 714] has directed to dissolve the marriage on the ground of irretrievable breakdown of marriage, in exercise of powers under Article 142 of the Constitution of India.
7. Now so far as submission on behalf of the respondent wife that unless there is a consent by both the parties, even in exercise of powers under Article 142 of the Constitution of India the marriage cannot be dissolved on the ground of irretrievable breakdown of marriage is concerned, the aforesaid has no substance. If both the parties to the marriage agree for separation permanently and/or consent for divorce, in that case, certainly both the parties can move the competent court for a decree of divorce by mutual consent. Only in a case where one of the parties do not agree and give consent, only then the powers under Article 142 of the Constitution of India are required to be invoked to do substantial justice between the parties, considering the facts and circumstances of the case. However, at the same time, the interest of the wife is also required to be protected financially so that she may not have to suffer financially in future and she may not have to depend upon others.
8. This Court, in a series of judgments, has exercised its inherent powers under Article 142 of the Constitution of India for dissolution of a marriage where the Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted. In the present case, admittedly, the appellant husband and the respondent wife have been living separately for 10 more than 22 years and it will not be possible for the parties to live together. Therefore, we are of the opinion that while protecting the interest of the respondent wife to compensate her by way of lump sum permanent alimony, this is a fit case to exercise the powers under Article 142 of the Constitution of India and to dissolve the marriage between the parties."
25. In view of the legal position which we have referred to aforesaid, these continuing acts of the respondent would amount to cruelty even if the same had not arisen as a cause prior to the institution of the petition, as was found by the Trial Court. This conduct shows disintegration of 15 | P a g e marital unity and thus disintegration of the marriage.10 In fact, there was no initial integration itself which would allow disintegration afterwards. The fact that there have been continued allegations and litigative proceedings and that can amount to cruelty is an aspect taken note of by this court.11 The marriage having not taken of from its inception and 5 years having been spent in the Trial Court, it is difficult to accept that the marriage soon after the decree of divorce, within 6 days, albeit 6 years after the initial inception of marriage, amounts to conduct which can be held against the appellant."
Both the cases under reference primarily dealt with irretrievable breakdown of marriage. The said provision does not find place in the Hindu Marriage Act, 1955 and it is beyond our domain to consider dissolving the marriage on the ground of its irretrievable breakdown. The plea of the learned counsel for the petitioner/appellant is therefore negated.
18. On consideration of the entire facets of the case, we do not find any reason to cause interference in the impugned judgment and consequently, we dismiss this appeal.
19. Pending I.A.s, if any, stands closed.
(RONGON MUKHOPADHYAY, J.) (PRADEEP KUMAR SRIVASTAVA, J.) Jharkhand High Court, Ranchi.
Dated the 27th Day of November, 2024.
Preet/N.A.F.R. 16 | P a g e