Court: Allahabad High Court
Bench: JUSTICE Saeed-Uz-Zaman Siddiqi
Kiran Singh Vs. Dr. Shiv Kumar On 26 November 2013
Law Point:
Hindu Marriage Act, 1955 — Sections 13(1)(ia), 9 — Cruelty — Restitution of Conjugal Rights — Love marriage — Appellant-wife was so much swayed by her emotions that she got her MBBS study transferred to Kanpur and got married — Appellant is an emotional lady and got married against wishes of her father — Thereafter she immediately turn-turtle her mind and started seeking divorce on flimsy ground — Emotion of such lady cannot overpower sanctity of marriage — Mere whim of party under influence of her family members cannot be termed as “cruelty” — Husband had greatest and paramount desire to reform his wife and to live with her normally in matrimonial relationship, once again — Decree for dissolution would neither serve the purpose of parties nor of society — Respondent-husband has filed suit under Section 9 of H.M. Act — Judgment and decree passed by two Courts below confirmed.
JUDGEMENT
The instant appeal has been preferred by wife against her husband, challenging the judgment and decree dated 29.5.2009, passed by Mrs. Sandhya Choudhary, Additional Civil Judge, Barabanki in regular suit No. 224 of 2007 and judgment and decree dated 20.2.2010, passed in Civil Appeal No. 80 of 2009 by Additional District Judge, Court No. 2, Barabanki, as the wife lost her attempt to get her marriage dissolved under Section 13 of Hindu Marriage Act, 1955 from both the Courts below. It is pertinent to mention here that both husband and wife are Doctors by profession.
2. The appeal was admitted vide order dated 15.4.2010 on following substantial questions of law:
“(b) Whether the learned Courts below while dismissing the suit have failed to consider the well-settled proposition of law that there can be cruelty without any physical violence and there are abundant authority for recognizing mental or moral cruelty and not in frequently, the worst cases supply evidence of both and it is for the Judges to review the marital life of the parties in all its aspect?
(f) Whether the learned Courts below are justified in law in dismissing the suit ignoring the well-settled proposition of law that once marriage has breakdown beyond repair, it would be unrealistic for the law not to take notice of that fact and would be harmful to society and injurious to the interest of the parties?”
3. Brief facts of the case are that the parties, belong to the same community and same religion. The wife belongs to District Barabanki and the husband belongs to the adjoining district of Sitapur. The wife got admission in M.B.B.S. in the year 2000, where the husband was already studying M.B.B.S., took admission in the year 1998. Both completed their M.B.B.S. from G.S.V.M. Medical College, Kanpur. But, prior to this the defendant lived in Mohalla Shakti Nagar, Lucknow from 1992 in connection with preparation for C.P.M.T. The wife was also living in the same Mohalla and both came to know each other. During the studies, the familiarity between the two converted into love affair and both got married in May, 2005. The first marriage anniversary of the parties was celebrated at Kanpur but on the next day, the matrimony converted into a tragedy as the appellant wife left with her parents to Lucknow on 21.5.2006. She filed suit in the year 2007 for dissolution of marriage, under Section 13, Hindu Marriage Act, 1955 on the ground of cruelty, inter alia, alleging that the defendant husband was posted as Demonstrator and later on, he was posted as Medical Officer in the Health Department and, he started taking liquor. It was not known to the wife earlier. That the defendant husband demanded Rs. 5,00,000 cash, Maruti Alto car and a plot in Lucknow. She was beaten by her husband. When the cruelty crossed all its limits, in the month of September, 2005, the plaintiff/wife informed her parents and as a matter of reconciliation, the father of the wife got a plot purchased in her name on 7.10.2005, having an area of 1800 square feet. But, after sometime, the defendant husband again started beating her, compelling her to take liquor and demanding Rs. 5,00,000 for solemnizing the marriage of his sister. On 3.12.2006, the plaintiff was carried by the defendant/husband to his village Udapur, where she was beaten by her in-laws and the defendant/husband. Even, an attempt was made to kill her by throttling her neck, on account of which she became unconscious. When she regained her consciousness, she found that her in-laws were sleeping and she left their house and reached back to Lucknow, and she got herself medically examined in District Barabanki and lodged F.I.R. on 8.12.2006.
4. The defendant husband contested the suit, inter alia, on the grounds that he was known to the plaintiff-wife and due to love affair, they were married with each other without any dowry, nor there was any question of exchanging dowry or demanding dowry; the husband never took a drop of liquor; the wife has left the matrimonial house without any cogent ground when the husband was posted at P.S.C. Kaoli, District Sitapur, he tried to keep the plaintiff as his wife, but she refused. False F.I.R. was lodged by the wife and the defendant husband remained in jail for five and half months; the defendant has already filed a suit for restoration of conjugal rights under Section 9, Hindu Marriage Act, which is pending. The plaintiff is denying him the matrimony at the instance of her father.
5. On the basis of the pleadings of the parties, the learned Tribunal has framed issues, recorded evidence and considered the oral as well as documentary evidence filed by the parties and, reached to the conclusion that the plaintiff has failed to prove her case. Aggrieved by the said order, the plaintiff preferred Civil Appeal No. 80 of 2009, which has also been dismissed. Ultimately, the plaintiff wife has preferred the second appeal.
6. Heard learned Counsel for both the parties and gone through the records.
7. Both the Courts below have concurrently held that there was no guilt on the part of the husband. I have also scrutinized the records of the learned lower Court and it is found that no cogent and corroborative evidence is available in support of the allegation that the husband is in the habit of taking liquor. The Court is part of the society and the Presiding Officers and Court are not living in Ivory Towers. A judicial step can well be taken as what is happening in the society, as a Rule. Admittedly, it was an arranged marriage between the parties though it was the outcome of love affair. Dowry does not come to play in picture in such marriages. Of Course, there can be exceptions but the exceptions have to be pleaded and proved by the cogent evidence. Nothing short of this is available on the records of the case. There is ample evidence on the records that the father of the appellant is rigorously committing mischiefs and is coming in the way of peaceful matrimony of the parties. Both the parties are educated and engaged in the noble profession of saving life of the others. But unfortunately they are unable to save their own lives. It has also come in evidence that the father of the appellant was not happy with the marriage and he has asked her daughter to seek divorce as the marriage was solemnized due to unyielding determination of the plaintiff appellant. The father of the plaintiff wife was unwilling but had to surrender to the wishes of his daughter, who was stubborn and obstinate, as viewed by her father.
8. The respondent husband has refused to succumb to the pressure of agreeing to dissolve the marriage. There is a chain of evidence which resulted in lodging of the F.I.R. against the respondent, who has to remain in jail for 5.5 months, though, the grounds mentioned in the F.I.R. have not been substantiated by the evidence on record of this case. It has also come in evidence that the plaintiff did not use to go to her in-laws’ house. Admittedly, both did not live together after 20.5.2006 but they used to meet with each other. Both the learned Courts below have concurrently reached to the conclusion that the plaintiff appellant has failed to establish as to why she went to her in-laws’ house on the alleged fateful day. The defendant husband has filed the copy of admission card to show that his brothers and sister had to appear in PCS preliminary exam to be held on 9.12.2006 and six days prior to this, the plaintiff visited to her in-laws’ house and gathering of all the family members of the defendant husband is obviously doubtful. I found the discussion made and the conclusions arrived at by both the Courts below are perfectly in accordance with the settled Rules of evidence. It is relevant to note that the statement of the plaintiff appellant is, itself contradictory. The ancestral house of both the parties is 2.5 kms away and are in different districts. The behaviour, character and reputation of the family members of the defendant was known to the family members of the plaintiff appellant. The plaintiffs husband got admission in medical college at Delhi but she left and came to Kanpur Medical College because of the plaintiff. There are several other circumstances which have come in evidence and have been discussed, in much detail, by the learned Trial Court which need not to be re-discussed here. Due to this reason, the findings of fact arrived at by both the Courts below has not been challenged before this Court.
9. Learned Senior Advocate Mr. A.K. Tiwari, relied upon various authorities to impress upon this Court that there has been ‘irretrievable breakdown’ of marriage between the parties and, as such, dissolution of marriage is demanded by justice, which was vehemently opposed by Dr. L.P. Misra, learned Senior Advocate appearing on behalf of the defendant husband. In order to ascertain as to whether there is any perversity in the analysis made by the two Courts below relating to evidence led by the parties, I do not find any perversity, infirmity or any omission made by the two Courts below in discussing and relying upon the evidence led by the parties including probabilities. The appellant has failed to prove any sort of cruelty. Learned First Appellate Court has given a legal thought and has held as under:
“Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(ia) of the Act. ‘Cruelty’ postulates a treatment by the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other side. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. In the instant case, the Trial Court has found on facts that wife had failed to prove the allegations of cruelty attributed to the respondent.”
10. Learned First Appellate Court has also perused the personal diary maintained by the appellant and has held as under:
“The conduct of respondent has caused suffering to the appellant, which has ultimately made matrimonial life intolerable for her. In G.V.N. Kameswara Rao v. G. Jagbilli, (2002) 2 SCC 296, clarified that solitary incidents or occasional outburst of anger or rudeness would not amount to cruelty, but in instant case, parties had an unhappy relationship from the very inception of their married life; respondent-wife is unwilling to live with the husband; there had been many quarrels, accusations and counter-accusations; even husband has also filed a complaint under Section 3, Dowry Prohibition Act, 1961 against wife’s parents. His earlier complaint under Section 156(3), Cr.P.C. was rejected against revision dismissed on the same facts and the lis is pending before the Hon’ble High Court. All this has resulted into consequent loss of reputation and standing in society to her parents, which is tantamount to cruelty. It is a case of irretrievable breakdown of marriage, which is a relevant consideration for grant of divorce decree, as observed by Apex Court in Durga Prasanna Tripathy v. Arundhati Tripathi, (2005) 7 SCC 353, Ashok Hurra v. Rupa Bipin Zaveri, AIR 1997 SC 1266, and Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558.
It is urged that the marriage has come to quietus. The rapprochement is not in realm of possibility. It would be futile to contend that strange bed-fellows may be constrained to live together. A divorce decree is not only way out of this sordid mess.
Per contra, it is contended for respondent that the approach of the Court should be to preserve the matrimonial home and be reluctant to dissolve the marriage on mere asking of a party. The sanctity of marriage cannot be left at the whims of one of the annoying spouses. The irretrievable breakdown of marriage is not a ground by itself to dissolve it. A catena of cases including Savitri Pandey v. Prem Chandra Pandey, 2002 (1) AWC 4729 (SC). Chetan Das v. Kamla Devi, AIR 2001 SC 1709, Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, Shyam Sunder Kohli v. Sushma Kohli, AIR 2004 SC 5111, Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415 and V. Bhagat v. Mrs. D. Bhagat, AIR 1994 SC 710, referred to demonstrate that irretrievable breakdown of marriage is unavailable as a ground by itself to dissolve it. It is submitted that cruelty is based on fault theory that is to be established. On cruelty, the learned Trial Court held that the wife had failed to discharge the burden of proof. Apart from her self-serving statement, there was corroboration from any credible witness including her parents and the suit for divorce was rightly dismissed. In Smt. Beena v. Sri Sureshvir Tomer, 1995 (13) LCD 886, held that when relationship had already become constrained, complaint, even if found not to be true, cannot be brought within scope of cruelty. There is evidence that wife visited her in-laws for a brief interval of a few days or few hours on three occasions and during this period the spouses used to meet, which amounts to condonation of the alleged cruelty. Wife’s father was a material witness, who was withheld. In a similar case of Deepika v. Naresh Chandra Singhania, AIR 2000 All 148, held that failure to prove the allegations made in the pleadings, the solitary testimony of the petitioner could not be relied upon. In Sat Pal v. Harjit Kaur, AIR 2009 (NOC) 1323 (H.P.), the facts showed that the petitioner failed to substantiate allegations of cruelty. Defaulting party was not allowed to take benefit of his/her own wrong by pleading that marriage between parties had a breakdown and divorce was denied. It is next contended that the husband has produced diary written by wife, which is replete with love and tender feelings for the respondent, and is a relevant piece of evidence under Sections 39, 58 and 122, Evidence Act. The plea of privileged communication is unavailable in divorce suit. It was appellant, who waled out of his house and despite great persuasions and even filing of a petition for restitution of conjugal rights, she did not return. In view of S. Hanumantha Rao v. S. Ramani, 1999 (2) A.W.C. 1502 (SC), cruelty was not proved. It is submitted that ‘one who asserts must prove’. In view of Anil Rishi v. Gurbaksh Singh, 2007 (25) LCD 258, the wife has failed to discharge the burden of proof to establish cruelty. It is next submitted that an isolated in stance of cruelty would not be sufficient to grant decree of divorce. Cruelty must have been committed repeatedly or obstinately, as held in Vimlesh v. Prakash Chand Sharma, AIR 1992 All 260. Mere dissatisfaction or discord is not enough to severe matrimonial tie. See also Pranab Biswas v. Mrinmayee Dassi, AIR 1976 Calcutta 156. Lastly, it is submitted that the appellate Court must give due weight and consideration to the decision of the Trial Court, as it had distinct advantage of watching the demeanour of the witnesses and was in a better position to evaluate the credibility of the witnesses, as held in Dhanpal v. State, (2009) 10 SCC 401. In regard to dowry harassment, the learned Trial Court has recorded that the specific instances of harassment were not proved. The drunkard theory ascribed to husband also does not find mention in her diary, even though she has complained of the smoking habits of husband which he promised to abjure after examinations. There is no cogent and corroborative evidence in support of allegation that he was drunkard. State of A.P. v. M. Madhusudhan Rao, (2009) 3 SCC (Cri.) 1123, also cited on burden of proof in a criminal case, which is to be proved to the hilt.
Obviously, it is a case of falling in love before marriage. The expression ‘falling in love’ is a curious one. The experience is indeed a fall from high expectations, a crash downward into brambles of disappointment, suffering and recriminations and often followed by remorse. She writes to have passed sarcastic remarks that it was due to her that the respondent got his job and accommodation for which she repented. Then vicissitudes of some dissatisfaction, discord and disaffection, which injured the sensitivity or whims of a party.
On tryst to arrive at reconciliation between parties as enjoined by Section 22 of the Act and also Order 32-A Rule 3, CPC. I could notice the adulation for a caring husband in the eyes of petitioner, which was overshadowed by an avarice, as she feels. The respondent is still enamoured of the wife and romance has not evaporated till yet. The question is whether ripples rising in expectations, cresting, then scattering in foam-thoughts and emotions that flicker in the sunlight on life’s sea and wavelets that long to merge from separate identities in the larger wave have proved ephemeral. Moods pass. The number of glimpses of golden moments filled with love and happiness have disappeared and marriage has become mirage.
It would be apt to quote with advantage the observations made by the Supreme Court in Gaurav Nagpal (supra):
“One must not loose faith in humanity. It is an ocean; if a drops of the ocean is dirty, the ocean does not become dirty. If nothing ever went wrong in one’s life, he or she would never have a chance to grow stronger. One should never forget that today well lived makes every yesterday a dream of happiness and tomorrow a vision of hope. Marital happiness depends upon mutual trust, respect and understanding. A home should not be an arena for ego clashes and misunderstandings. There should be a physical and mental union. Marriage is something, Ibsen said in The League of Youth you have to give your whole mind to. If marriages are made in heaven as Tennyson said in ‘Ayloner’s Field’, why make matrimonial home hell is a big question.”
11. Learned First Appellate Court has also reached to the conclusion that the respondent used to smoke which caused irritation to the appellant and the husband/respondent assured her to leave this habit. The habit of drinking has not been established from the records. Learned Counsel for the appellant did not seriously argued the conclusions arrived at by the two Courts below but has argued vehemently that there has been an “irretrievable breakdown of marriage” and on that score it was argued that the marriage should be dissolved. Admittedly, this ground did not find place in the Hindu Marriage Act, 1955, though, it was made the ground of Divorce Law Reforms Act, 1973 in England. It is quite clear that while dealing with a matrimonial dispute the Court has not to dealt with the ideal couple or a near ideal one but has to deal with this man or this woman because ideal couple or near ideal couple will probably have no occasion to go to the matrimonial Court for even if they ‘may not be able to draw their differences. Their ideal attitudes may help them overlook or gloss over mutual faults and failures. This was held by Justice Y.V. Chandrachud, in N.G. Dastane v. S. Dastane, I (1981) DMC 293 (SC)=AIR 1975 SC 1534.
12. Among the human being there is no limit to the kind of conduct which may constitute cruelty. No type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful realm of cruelty. Each and every case gives new dimensions to the concept of “cruelty”. Demanding of money has really became a slogan, which is being used by the warring husband and wife. Even of those communities where demanding of dowry is not, at all, prevalent, but it is the human conduct that when a person becomes annoyed with other he or she, as the case may be do not leave any allegation right or wrong. It is the human tendency which sometimes is deforming our judicial system, as Courts of law are bound to decide the cases on the basis of any right by the parties. This tendency is not only found in civil cases but in criminal cases, as well, which has made the function of a Judge more complicate in Indian setup. There is no iota of doubt that unlike British/American marriages, the marriage is a sacrament under Indian society. We cannot blindly fallow the concept of “marriage of convenience” as is prevalent in western world. The sacramentalism of Indian marriages cannot be overlooked or given a good-bye by the Courts. The Courts of law are meant to draw a “silverlining”, a “Luxman rekha” between the facts of a particular case of marriage disputes and sacramentalism of marriage. Bearing in mind, this concept there should be a proper approach to matrimonial dispute. In A. Jayachandra v. Aneel Kaur, I (2005) DMC 111 (SC)=VII (2004) SLT 581=(2005) 2 SCC 22, the Hon’ble Apex Court has held as under:
“To constitute cruelty, the conduct complained of should be ‘grave and weighty’ so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than ‘ordinary wear and tear of married life’. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such 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.
The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.
The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper-sensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court [See Dastane v. Dastane, AIR 1975 SC 1534].”
13. The word “cruelty” has been considered in different circumstances by the Hon’ble Apex Court in Parveen Mehta v. Inderjit Mehta, II (2002) DMC 205 (SC)=IV (2002) SLT 381=(2002) 5 SCC 706 and Samar Ghosh v. Jaya Ghosh, I (2007) DMC 597 (SC)=IV (2007) SLT 76=II (2007) CLT 72 (SC)=(2007) 4 SCC 511. In subsequent cases, wife’s refusal to cohabit had been proved beyond doubt and it was found that she had to respect the marital bond and discharge to obligation of marital life.
14. Matrimonial matters are matters of delicate human and emotional relationship. It demands a mutual, trust, regard, respect, love and affection with sufficient play for reasonable adjustments with spouses. The relationship has to conform to the social norms as well. The “matrimonial conduct” has now come to be governed by the statute framed, keeping in view such norms and change the social order. This Hon’ble Apex Court aptly observed in Chetan Dass v. Kamla Devi, I (2001) DMC 714 (SC)=III (2001) SLT 420=(2001) 4 SCC 250, which is as under:
“Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of ‘irretrievably broken marriage’ as a strait-jacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.”
15. I have specifically mentioned the above facts because the learned Counsel for the appellant has repeatedly argued that there has been “irretrievable breakdown of marriage”. In a catena of decisions the Hon’ble Apex Court, in exercise of its inherent jurisdiction under Article 142 of the Constitution of India has dissolved the marriage on the ground of “irretrievable breakdown of marriage” and in the backdrop of those circumstances the argument to dissolve the marriage, in this case, as advanced by the learned Counsel for the appellant has to be taken into consideration. In Naveen Kohli v. Neelu Kohli, I (2006) DMC 489 (SC)=128 (2006) DLT 360 (SC)=III (2006) SLT 43=(2006) 4 SCC 558, the Hon’ble Apex Court has dissolved the marriage on the ground of “irretrievable breakdown of marriage”. While considering this case the Hon’ble Apex Court has relied upon its decision in the case of Samar Ghosh (supra) and held in para 101 that no uniform standard can ever be laid down for guidance, yet we deem it proper to enumerate some instances of human behaviour which may be relevant. In para 14 the Hon’ble Apex Court has held that where there has been a long period of continuous separation, it may fairly be concluded 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. In case “irretrievable breakdown” has been constituted to be a ground for dissolution of marriage the element of “cruelty” has been found up to some extent.
16. In the case, in hand, there is no iota of “cruelty”. Admittedly, it is a love marriage and the appellant/wife was so much swayed with her emotions that she got her MBBS. Studies transferred from New Delhi to Kanpur, just because of the respondent and ultimately the marriage was solemnized in the year 2005. The matrimonial dispute started in the year 2006. From the facts of the case it becomes quite clear that the appellant is an emotional lady who was once swayed by her emotion to marry with the respondent against the wishes of her father. Thereafter, she immediately turn-turtle her mind and started seeking divorce on flimsy grounds. The emotion of such a lady cannot overpower the sanctity of marriage, which in Indian concept is said to be “made in heaven”. While delivering justice between the parties, the Court cannot overlook the society, as it is a part of the society. Due to complex and rapid development in the society there have been cases of love marriages without any discrimination on the basis of religion, race, caste or place of birth. Due to this change of pattern there has been spurt of matrimonial disputes.
17. While dissolving the marriage on the ground of “irretrievable breakdown of marriage” the Hon’ble Apex Court has not defined the word “irretrievable”. The marriages in India are solemnized with the rituals, followed by the people of that community. Fortunately, in this case, both the parties belong to the same community, same caste and same area. Unlike western world, marriages in India are considered to be the highest form of social relationship, live-in relationship’ has never been an Indian concept, nor it has ever been swallowed by Indian people nor it is permissible under any of the law, for the time being in force.
18. This Court need to respect not only the litigating parties but the institution of the marriage as well. In Anil Kumar Jain v. Maya Jain, II (2009) DMC 449 (SC)=VIII (2009) SLT 204=III (2009) CLT 317 (SC)=(2009) 10 SCC 415, the Hon’ble Apex Court has held as under:
The various decisions referred to above merely indicate that the Supreme Court can in special circumstances pass appropriate orders to do justice to the parties in a given fact situation by invoking its powers under Article 142 of the Constitution, but in normal circumstances the provisions of the statute have to be given effect to. The law as explained in Sureshta Devi case, still holds good, though with certain variations as far as the Supreme Court is concerned and that too in the light of Article 142 of the Constitution.”
19. The argument of learned Counsel for the appellant was forcefully opposed by the learned Counsel for the respondent Dr. L.P. Mishra, on the ground that while dealing with the second appeal this Court cannot grab the powers available to the Hon’ble Apex Court under Article 142 of the Constitution of India. Divorce is a termination of marital union. The mindset of society has also taken a vertical turn with the changing times. Earlier people’s thinking was that when people are once married they are into a sacred relationship and they should not be separated even if they are not happy with their lives. As girls are getting more educated and even there are changes in the society, now dissolution of marriage is not considered as “proscribed”. The judiciary has to apply a cautioned approach and, at the instance of one party the marriage cannot be termed to have “irretrievably broken” because indiscriminate application of this dictum will completely breakdown the system of marriages. What is required is to respect not only the person, but the institution of marriage, as well. In spite of all deteriorations in the society, the people still feel that they have to live together for the rest of their lives to respect to tie the knot, they are bound to follow the customs and traditions of either of them to solemnize their marriage.
20. In the case, in hand, the traditions, customs, caste and mindset of the parties is the same and coincidentally the appellant and the respondent are medico-graduates. Their profession is also based upon maximum fairness and minimum bitterness, humiliation and distress as is expected from the parties by the society. The parties are not expected to undermine stability of marriage too, which is in consonance with their profession. It is also true that the meaning of “irretrievable breakdown of marriage” shall include the situation that exists when either or both spouses no longer are able or willing to live with each other, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties. Such “irretrievable breakdown of marriage” do not provide a ground for no-fault divorce in many jurisdictions. Divorce on the ground of “irretrievable breakdown of marriage” might be contrary to common perception and idea or marriage being a holy union of seven births. Even in Vishnu Dutt Sharma v. Manju Sharma, I (2009) DMC 515 (SC)=II (2009) SLT 382=(2009) 6 SCC 379, the Hon’ble Apex Court has held as under:
“On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the Legislature for granting a decree of divorce. This Court cannot add such a ground so Section 13 of the Act as that would be amending the Act, which is a function of the Legislature.
If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the Legislature and not by the Court. It is for Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned Counsel for the appellant.”
21. While meeting with the arguments advanced on behalf of the respondent, learned Counsel Dr. L.P. Mishra submitted that inspite of the fact that his client was sent to jail in connection with fabricated FIR lodged against him, yet he is adamant to keep the appellant as his wife and improve matrimonial relations. Though, reconciliation efforts were made a number of times and failed, yet in view of this argument reconciliation cannot be altogether ruled out. Since the parties have lived together as husband and wife for barely one year, it cannot be held that there was no possibility of reunion, as the behavioural science lays emphasis on the fact that the disputes can well be sorted out once volatile emotions are settled down and passion can be overpowered by the indulgence of family members. Hot-headedness is a temporary affair and enthusiasm to have love and desire is bound to erupt again by the lapse of time. While holding this I have studied the various authorities of the Hon’ble Apex Court in which dissolution of marriage was decreed on the ground of “irretrievable breakdown of marriage” where the parties to a marriage were living separately for a quite a number of years.
22. On the basis of the evidence on record, learned First Appellate Court has rightly observed that the appellant used to meet the respondent whenever she got opportunity. Mere whim of a party under the influence of her family members cannot be termed to be “cruelty”. One must not loose faith in humanity. It its an ocean. If a few drops of ocean are dirty, the ocean does not become dirty. Recently, in Darshan Gupta v. Radhika Gupta, II (2013) DMC 716 (SC)=VI (2013) SLT 67=III (2013) CLT 16 (SC)=(2013) 9 SCC 1, the Hon’ble Apex Court has held as under:
“A perusal of the grounds on which divorce can be sought under Section 13(1) of the Hindu Marriage Act, 1955, would reveal, that the same are grounds based on the ‘fault’ of the party against whom dissolution of marriage is sought. In matrimonial jurisprudence, such provisions are founded on the ‘matrimonial ‘offence theory’ or the “fault theory’. Under this jurisprudential principle, it is only on the ground of an opponent’s fault, that a party may approach a Court for seeking annulment of his/her matrimonial alliance. In other words, if either of the parties is guilty of committing a matrimonial offence, the aggrieved party alone is entitled to divorce. The party seeking divorce under the ‘matrimonial offence theory’/the ‘fault theory’ must be innocent. A party suffering ‘guilt’ or ‘fault’ disentitles himself/herself from consideration. Illustratively, desertion for a specified continuous period, is one of the grounds for annulment of marriage.
On the said allegations, it is Darshan Gupta who deserves to be castigated. Therefore, he cannot be allowed to raise an accusing finger at the respondent on the basis of the said allegations, or to seek dissolution of marriage thereon.
At the present juncture, it is questionable as to whether the relief sought by the learned Counsel for the appellant, on the ground of irretrievable breakdown of marriage is available to him. The reason for us to say so, is based on a judgment rendered by this Court in Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379, wherein this Court has held as under—
‘10. On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the Legislature.
11. Learned Counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent.
12. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the Legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned Counsel for the appellant.
13. Had both parties been willing we could, of course, have granted a divorce by mutual consent as contemplated by Section 13B of the Act, but in this case the respondent is not willing to agree to a divorce.’
In this behalf, it would also be relevant to refer to another judgment rendered by this Court in Gurbax Singh v. Harminder Kaur, (2010) 14 SCC Paragraph 20, of the cited judgment is relevant to the issue, and is accordingly being extracted hereunder—
‘20. Finally, a feeble argument was made that both the appellant and respondent were living separately from 2002 and it would be impossible for their reunion, hence this Court exercising its jurisdiction under Article 142 of the Constitution, their marriage may be dissolved in the interest of both parties. Though, on a rare occasion, this Court has granted the extraordinary relief dehors to the grounds mentioned in Section 13 in view of the fact that the issue has been referred to a larger Bench about permissibility of such course at present, we are not inclined to accede to the request of the appellant. If there is any change of law or additional ground included in Section 13 by the act of Parliament, the appellant is free to avail the same at the appropriate time.’
Even otherwise, in the facts and circumstances of this case (which are being highlighted while dealing with the appellant’s next contention), we cannot persuade ourselves to grant a decree of divorce, on the ground of irretrievable breakdown of marriage, for the simple reason that the breakdown is only from the side of the husband. The wife – Radhika Gupta has consistently maintained, that she was intensely concerned with her future relationship with her husband, and that, her greatest and paramount desire was to rejoin her husband, and to live with him normally in a matrimonial relationship, once again. Since in the present case, the respondent does not consent to the severance of matrimonial ties, it may not be possible for us to accede to the instant prayer, made at the hands of the learned Counsel for the appellant.
Since we were not agreeable with the contention advanced by the learned Counsel for the appellant, on the plea of irretrievable breakdown of marriage, learned Counsel sought the same relief, for the same reasons, by imploring us to invoke our jurisdiction under Article 142 of the Constitution of India, and to annul the marriage between the parties, as a matter of doing complete justice between the parties. Doing justice between the parties is clearly a constitutional obligation. This Court has been bestowed with the discretion “… to make such order as is necessary for doing complete justice in any cause or matter pending before it…”. The concept of justice, however, varies depending on the interest of the party. On most occasions, it is advisable to adjudicate matters in consonance with law. Whenever it is possible to do so, on the touchstone of the Court’s conscience, the determination rendered would simultaneously result in doing justice between the parties. All the same, since we have been called upon to annul the marriage between Darshan Gupta and his wife Radhika Gupta in order to do complete justice to the parties, we have ventured to thoughtfully examine the matter from instant perspective as well.
We are of the view, that the issue in hand should be adjudged by the above standards, when the same prayer is made by the husband. To constitute justice, the picture should appear to be the same, irrespective of the angle from which it is viewed. If the same sequence of facts cannot be viewed as doing justice to the husband, they have to be likewise viewed for the wife as well. It is, therefore, not possible for us to accept even the last plea advanced at the hands of the learned Counsel for the appellant.”
23. Even, in the case in hand, the husband has greatest and paramount desire to rejoin his wife and to live with her normally in matrimonial relationship, once again. The decree for dissolution would neither serve the purpose of the parties nor of the society.
24. Before parting with the case, I may mention here that the word “irretrievable” means and include ‘a thing which is not to recover or repair’. It means the relationship with no hope of resumption of spousal duties’. Under the circumstances of the case and, on the basis of the evidence led by the parties, this Court finds that there are changes to recover, recall and bring back matrimony to the former state. Admittedly, the respondent has filed a suit under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. Before decision of that case dissolution of marriage shall amount to decide the case for restitution of conjugal rights which would become infructuous.
25. In result of the discussions made and conclusions arrived at as above, the judgment and decree passed by the two Courts below are, hereby, confirmed and the appeal deserves to be dismissed and it is accordingly dismissed.
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