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CASE NO.:

Appeal (civil) 5184 of 2005

PETITIONER:

Durga Prasanna Tripathy

RESPONDENT:

Arundhati Tripathy

DATE OF JUDGMENT: 23/08/2005

BENCH:

Ruma Pal & Dr. AR. Lakshmanan

JUDGMENT:

J U D G M E N T

(Arising out of S.L.P. (Civil) No. 9794 OF 2004)

Dr. AR. Lakshmanan, J.

Leave granted.

This appeal is directed against the judgment dated 23.12.2003 passed by the

High Court of Orissa at Cuttack in Civil Appeal No. 10 of 2001 whereby the High Court

allowing the appeal filed by the respondent-herein/wife under Section 13(1) of the

Hindu Marriage Act, 1955 on the ground of cruelty and desertion.

The marriage between the appellant and the respondent was solemnized on

05.03.1991. After the marriage, the parties led their conjugal life in the village to which

the appellant belongs and the respondent-wife persuaded the appellant to stay at

Bhubaneswar, the place of her service as well as her parental place. The husband did

not approve such proposal as a result of which dispute arose between the parties. It

was alleged that the respondent-wife behaved with her husband and her in-laws in a

cruel manner. She deserted the appellant by staying in the house of her father since

22.10.1991. The appellant and his parents tried their best to bring the respondent-wife

to the marital home but all their efforts were in vain. Thereafter, on 26.05.1996, for the

marriage ceremony of the appellant's younger brother, the mother of the appellant also

went to bring the respondent but the latter was not inclined to come but misbehaved

and insulted her mother-in-law. The appellant's father expired and for which also the

father of the respondent was requested by the appellant to send the respondent to the

house of the appellant since being the eldest daughter-in-law but then also the

respondent did not come. Even after the death of the appellant's father, the respondent

in spite of several requests by the appellant and his family members did not join the

company of the appellant. The respondent, furthermore, joined the Office of the Civil

Supplies at Puri and in view of this, the respondent and her father always insisted the

appellant to shift to Bhubaneswar. The appellant, in view of this, after about 7 years

from the date of separation took redress of the Court. After leaving the appellant, the

respondent also joined as a Junior Assistant in the office of the Civil Supply

Corporation.

The respondent-wife denied the allegations made against her. She further

stated in her written statement that due to maltreatment of the appellant's mother and

brother she came back to her parents house. She also stated that she was willing to

live separately from her mother-in-law and brother-in-law. She, therefore, prayed for

dismissal of the proceedings.

Both parties led oral evidence in support of their respective cases. The

appellant was examined as P.W.1. During his evidence he corroborated the facts

made in the original application for divorce. He has also stated that he is not willing to

stay with the respondent as husband and wife after a long lapse of about 9 years and

there is no chance of reunion between the parties. The respondent examined herself

as O.P.W1. She also filed bunch of documents. On the basis of the pleadings and

evidence of the parties, the Courts below framed an issue whether there is just and

sufficient cause to pass a decree of divorce against the respondent-wife on the grounds

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of cruelty and desertion or not.

The Family Court, Cuttack passed its judgment and allowed the petition filed by

the appellant-herein under Section 13 of the Hindu Marriage Act and thereby granted

decree of divorce. The Family Court, after having heard the parties and after perusing

the evidence on record, held as follows:-

"When the wife-respondent declines to come to the marital home,

undoubtedly it gave mental shock to the petitioner-husband, which knew no

bounds. There is also no chance of reunion or reconciliation between the

parties. The only course open to the Court is to pass a decree of divorce

thereby to put an end to the litigation. The husband-petitioner has proved to

the satisfaction of the Court that the wife-respondent is not only cruel, but

also deserted him since more than seven years, which are good grounds for

passing a decree of divorce."

"However, as regards the alimony the learned Judge directed the

petitioner-husband to pay Rs.50,000/- to the wife-respondent towards her

permanent alimony, which was to be paid/deposited in the shape of bank

draft."

Aggrieved by the judgment of the Family Court, the respondent filed a civil

appeal before the High Court of Orissa under Section 19 of the Family Courts Act,

1984.

The appellant contended before the High Court that while allowing the

proceedings under Section 13(1) of the Hindu Marriage Act on the ground of cruelty

and desertion, the Family Court dissolved the marriage solemnized between the parties

on 05.03.1991 and 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 has

deposited the amount by way of a bank draft.

The High Court, vide its judgment dated 23.12.2003, set aside the decree of

divorce passed by the Family Court and allowed the appeal filed by the respondent

herein holding that the appellant had failed to prove cruelty and desertion as against

the respondent.

Aggrieved against the judgment of the High Court, the appellant preferred the

above Special Leave Petition.

We heard Mr. Ranjan Mukherjee, learned counsel appearing for the appellant

and Ms. S.S. Panicker, learned counsel appearing for the respondent.

Mr. Ranjan Mukherjee, learned counsel for the appellant, submitted that the

High Court has failed to appreciate that the failure of the respondent to substantiate the

alleged reasons for staying away and omission to demonstrate readiness and

willingness to discharge continuing obligation to return to matrimonial home taken

together were sufficient to establish animus deserendi, necessary to prove legal

desertion by the wife as per the principles laid down by this Court in a number of cases.

He would further submit that the appellant has proved the desertion of the respondent-

wife to the satisfaction of the Courts below and after considering all the aspects and

evidence led in support of the desertion, the Family Court, after satisfying itself that a

reunion between the parties is not possible, has passed a decree of divorce and in

pursuance to the direction of the Family Court, the appellant had deposited a sum of

Rs.50,000/- by way of a bank draft in favour of the respondent herein. It was further

submitted that the High Court has failed to appreciate that in the present case both

have been staying separately for about the last 14 years and in the meantime, the

respondent has got a job at Bhubaneswar and moreover the appellant and his family

members had on quite a number of times tried to get the respondent to her matrimonial

home but of no avail. It was further submitted that the High Court has failed to

appreciate that the allegations of dowry demand as made by the respondent by the

mother-in-law and the brother-in-law are concocted afterthoughts of the respondent to

defend her inexplicable stand which is evident from the fact that though the respondent

had left her matrimonial home in the year 1991 itself she had only chosen to lodge a

complaint against her mother-in-law and brother-in-law before the Mahila Commission

only in the year 1988 i.e. after about 7 years.

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Mr. Ranjan Mukherjee further submitted that the parties have been living

separately for almost 14 years which means that there is an irretrievable breakdown of

marriage and that because of such breakdown of marriage, the marriage between the

parties has been rendered a complete deadwood. Mr. Ranjan Mukherjee, in support of

his submissions, cited the following judgments of this Court.

1. Anjana Kishore vs. Puneet Kishore, (2002) 10 SCC 194 (Three-Judge Bench)

2. Swati Verma (Smt) vs. Rajan Verma and Others (2004) 1 SCC 123

3. Sanat Kumar Agarwal vs. Nandini Agarwal, (1990) 1 SCC 475

4. Adhyatma Bhattar Alwar vs. Adhyatma Bhattar Sri Devi, (2002) 1 SCC 308

5. G.V.N. Kameswara Rao vs. G. Jabilli, (2002) 2 SCC 296

Ms. S.S. Panicker, learned counsel for the respondent submitted that the plea

and evidence of the appellant before the Family Court was at variance and that in

absence of corroboration the allegation of the appellant as to the desertion or cruelty by

the respondent-wife could not be proved by the appellant. It was submitted that the

High Court has rightly arrived at the conclusion that the order of the Family Court was

erroneous as the same was passed by misquoting the evidence of the respondent.

She would further submit that there is no error in the impugned order of the High Court

much less an error requiring interference by this Court under Article 136 of the

Constitution of India. It was submitted that the order of the Family Court is prima facie

illegal, erroneous and that the Family Court failed to take into account the evidence

adduced by the parties in its proper perspective. According to learned counsel for the

respondent, a perusal of the evidence would make it amply clear that the appellant in

his evidence has clearly admitted that he had himself led the respondent on 23.10.1991

in her father's house which was contrary to the statement in the divorce petition wherein

he had made a specific allegation that the respondent had left the matrimonial home on

her own accord. He had not written any letter nor taken any relations to persuade the

respondent to lead marital life with him and that he was also not willing to stay with the

respondent and to continue the marital relations. Learned counsel for the respondent

invited our attention to the evidence led in by both the parties and misquoting of the

evidence by the Court. The respondent, on the contrary, in her evidence had stated

that after 23.10.1991 she had been to the matrimonial home with her father and other

relations but the appellant refused to accept her, so she had to take shelter at her

parental home, that the appellant was on visiting terms to her parental home that she

had led conjugal life with the appellant till February, 1996, that even in the year 1997,

the respondent had stayed with the appellant at Jajpur in a rented accommodation but

was again forced to quit because of harassment by the in-laws that she was also willing

to stay with the appellant at Jaipur and was interested in continuing their marital

relations. Learned counsel submitted that the Family Court has failed to take note that

the wife had categorically stated before the Conciliation Officer as also in the evidence

and pleadings before the Family Court that she was interested and willing to live with

the husband and that the appellant on the other hand had clearly stated that he did not

want to continue the marital relations. Learned counsel further argued that the

appellant has also not been able to prove the allegations of cruelty against the

respondent and that the appellant had only alleged that the conduct of the respondent

of not returning to the matrimonial home, her lack of cooperation in establishing normal

cohabitation, her repeatedly causing social embarrassment to the appellant by not

performing the last rites of the father-in-law and not participating in a marriage

ceremony of the appellant's brother and filing false complaint against the mother-in-law

and brother-in-law had caused mental depression, anguish and frustration to the

appellant amounts to mental cruelty. She would also further submit that the allegations

which are necessary to constitute desertion are not present in the instant case. It was

also submitted that the appellant filed divorce petition in the year 1998 that is almost 7

years after the alleged desertion by the wife from 23.10.1991 and that the appellant has

not given any valid explanation for the unexplained delay in filing the divorce petition.

Concluding her arguments, she submitted that the appellant was not entitled to a

decree of divorce on the ground of desertion and he and his family members were

themselves responsible for the respondent quitting the matrimonial home and,

therefore, the appellant cannot be permitted to take advantage of his own wrong for

obtaining a decree for divorce in violation of the provisions of the Hindu Marriage Act.

She submitted that the High Court was, therefore, correct in setting right an apparent

error on the face of the order of the Family Court as the order of the Family Court was

passed without taking into the evidence of the respondent and the appellant.

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We have carefully gone through the pleadings, the evidence led and the

judgments cited by learned counsel for the appellant. Learned counsel for the

respondent has not cited any ruling in support of her contentions.

This is a most unfortunate case where both the parties could not carry on their

marital ties beyond a period of 7 months of their marriage. The marriage between the

parties took place on 05.03.1991 and it is the specific case of the appellant that the

respondent deserted him on 22.10.1999 and never again returned to her matrimonial

home. Today the position is that the parties have been living separately for almost 14

years which means that there is an irretrievable breakdown of marriage and that

because of such breakdown of marriage the marriage between the parties has been

rendered a complete deadwood. Learned counsel for the appellant argued that no

useful purpose will be served by keeping such a marriage alive on paper, which would

only aggravate the agony of the parties. Therefore, he would pray that in the fitness of

things and in the interest of justice, the marriage between the parties is forthwith

terminated by a decree of divorce. We have perused the orders passed by the Family

Court and also of the High Court. Both the Family Court as well as the High Court

made efforts to bring about a reconciliation/rapprochement between the parties. The

Family Court in this regard gave a clear finding that in spite of good deal of endeavour

to effect a reconciliation the same could not be effected because of the insistence of

the respondent to remain separately from her in-laws. It was totally an impracticable

solution.

In this context, we may usefully refer to page 35 of the paper book which reads

as follows:

"Be that as it may, good deal of endeavour was made by the

Conciliation Cell attached to the Court as per Section 9 of the Family Courts

Act and as well as by this Court for a compromise between the parties, but

the respondent-wife insisted and wanted to remain separately from her in-

laws which was totally impracticable on the part of the petitioner-husband."

This apart, since October, 1991 till date the respondent has not taken any steps

from her side to go back to her matrimonial home. The said fact gets reflected from her

own deposition before the Family Court wherein she has deposed as under:-

"On 23.10.1991, the petitioner left me in the house of my father. I

went to the marital home with my father and other relations, but the

petitioner created trouble and did not accept me as his wife. So I came

away to my father and has taken shelter there."

"The petitioner left me in my father's house after the marriage on

23.10.1991. It is not a fact that I came away suo moto from the marital

home deserting the petitioner. Again I came and stayed in the marital home

from December, 1991 till February 1992 and thereafter came to my father's

house."

The Family Court has given cogent and convincing reasons for passing the

decree of divorce in favour of the appellant. Having been convinced that there was

no chance of reunion or reconciliation between the parties, more so because of the

complaint filed by the respondent before the Mahila Commission, the Family Court

with a view to put a quietus to the litigation inter se and the bitterness between the

parties rightly passed the decree of divorce.

The Division Bench of the High Court by the impugned judgment has reversed

the finding of the Family Court. The learned Judges of the High Court held against

the appellant on two points, namely:-

(a) Misquoting of the evidence of the respondent, by the Family Court; and

(b) Inconsistent plea of the appellant with regard to leaving the matrimonial

home by the respondent.

Both the aforesaid points taken into consideration by the learned Judges of the

High Court cannot, in our view, be construed as a finding upon the merits of the case.

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 respondent is willing to join her

husband. There has been an irretrievable breakdown of marriage between the

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appellant 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 Mahila 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 27.03.1997 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 demeanor of the witnesses concluded

that the appellant had proved that the respondent is not only cruel but also deserted

him since 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 respondent have become strained

over the 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 after-thought 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 to him and

his family had, in our opinion, no other efficacious remedy but to approach the Family

Court for decree of divorce.

In the following two cases, this Court has taken a consistent view that where it is

found that the marriage between the parties has irretrievably broken down and has

been rendered a dead wood, exigency of the situation demands, the dissolution of such

a marriage by a decree of divorce to put an end to the agony and bitterness:

(a) Anjana Kishore vs. Puneet Kishore (2002) 10 SCC 194

(b) Swati Verma (Smt.) vs. Rajan Verma & Ors. (2004) 1 SCC 123

Likewise, in the following three cases, this Court has observed that the question

of desertion is a matter of inference to be drawn from the facts and circumstances of

each case and those facts have to be viewed as to the purpose which is revealed by

those facts or by conduct and expression of intention, both anterior and subsequent to

the actual act of separation.

(a) Sanat Kumar Agarwal vs. Nandini Agarwal (1990) 1 SCC 475

(b) Adhyatma Bhattar Alwar vs. Adhyatma Bhattar Sri Devi

(2002) 1 SCC 308

(c) G.V.N. Kameswara Rao vs. G. Jabilli (2002) 2 SCC 296

The submission made by Mr. Ranjan Mukherjee that the marriage between the

appellant and the respondent has for all practical purposes become dead, that there

can be no chance of being retrieved and that it was better to bring the marriage to an

end merits acceptance and force.

In Chanderkala Trivedi (Smt) vs Dr. S.P. Trivedi, (1993) 4 SCC 232, which is

an appeal before this Court against the grant of decree for divorce by the Bombay High

Court on the ground of cruelty. When leave was granted, this Court observed that they

are granting leave because it appears to them that the marriage between the parties

was in all practical purposes dead and the enforced continuity of the marriage will only

mean that the parties will spend more years in bitterness against each other. Since the

husband was in a position to provide reasonable maintenance or permanent alimony,

this Court granted special leave. At the time of final hearing, this Court deleted the

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findings and has, however, decided not to interfere with the order passed by a Division

Bench of the Bombay High Court. The husband, on the persuasion of this Court,

agreed to provide a one bed-room flat to the wife in a locality where it can be available

between Rs. 3 and 4 lacs. Therefore, while dismissing the appeal, this Court directed

the husband to purchase a flat for the wife and further deposit a sum of Rs. 2 lacs by

means of a demand draft in the name of the appellant with the Family Court.

In V. Bhagat vs. D. Bhagat (Mrs), (1994) 1 SCC 337 = AIR 1994 SC 710, this

Court while allowing the marriage to dissolve on ground of mental cruelty and in view of

the irretrievable breakdown of marriage and the peculiar circumstances of the case,

held that the allegations of adultery against the wife were not proved thereby

vindicating her honour and character. This Court while exploring the other alternative

observed that the divorce petition has been pending for more than 8 years and a good

part of the lives of both the parties has been consumed in this litigation and yet, the end

is not in sight and that the allegations made against each other in the petition and the

counter by the parties will go to show that living together is out of question and

rapproachment is not in the realm of possibility. This Court at page 720 of AIR has

observed thus:

"Before parting with this case, we think it necessary to append a

clarification. Merely because there are allegations and counter allegations,

a decree of divorce cannot follow. Nor is mere delay in disposal of the

divorce proceedings by itself a ground. There must be really some extra-

ordinary features to warrant grant of divorce on the basis of pleading (and

other admitted material) without a full trial. Irretrievable breakdown of the

marriage is not a ground by itself. But while scrutinising the evidence on

record to determine whether the ground(s) alleged is/are made out and in

determining the relief to be granted, the said circumstance can certainly be

borne in mind. The unusual step as the one taken by us herein can be

resorted to only to clear up an insoluable mess, when the Court finds it in

the interest of both parties."

The decision reported in Romesh Chander vs. Savitri AIR 1995 SC 851 = 1995

AIR SCW 647 is yet another case where this Court in its powers under Article 142 of

the Constitution directed the dissolution of the marriage subject to the transfer of the

house of the husband in the name of the wife. In that case, the parties had not enjoyed

the company of each other as husband and wife for 25 years, this is the second round

of litigation which routing through the trial court and the High Court has reached the

Supreme Court. The appeal was based on cruelty. Both the Courts below have found

that the allegation was not proved and consequently it could not be made the basis for

claiming divorce. However, this Court after following the earlier decisions and in

exercise of its power under Article 142 of the Constitution directed the marriage

between the appellant and the respondent shall stand dissolved subject to the appellant

transferring the house in the name of his wife within four months from the date of the

order and the dissolution shall come into effect when the house is transferred and

possession is handed over to the wife.

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

impossible. Our 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 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.

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

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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 \026 Arundhati Tripathy and the

dissolution shall come into effect when the demand draft is drawn and furnished to the

respondent.

In the result, the Civil Appeal is allowed. There will be no order as to costs.