NON REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1957 OF 2006

Neelam Kumar … Appellant

Versus

Dayarani … Respondent

J U D G M E N T

AFTAB ALAM, J.

1. This appeal, by the husband, is filed against the judgment and order  

dated September 14, 2005 passed by the Madhya Pradesh High Court (at  

Jabalpur) in F.A.O. 462 of 2003. By the judgment coming under appeal, the  

High Court set aside the judgment dated August 23, 2003 passed by the 1st  

Additional District Judge, Balaghat in HMA Case No.26A/02, allowing the  

appellant’s  petition and granting him the decree of divorce under section  

13(1)(ia) of the Hindu Marriage Act, 1955.  

2. The marriage between the parties took place on December 7, 1986 and  

they lived together first at Ankleshwar and later at Vadodara. There is no  

child from the wedlock.

3. According to the appellant, barely after 8 or 9 months of the marriage,  

the wife (respondent in this appeal) became quite aggressive and insulting,  

and started treating him and his family members in a cruel manner. He tried  

to make adjustments in the hope that she would correct herself but finally,  

when it became impossible to carry along with her, he filed the petition for  

dissolution of marriage under section 13(1)(ia) of the Act, on grounds of  

cruelty. In the application filed by the appellant, it was stated that his wife  

objected to his giving any financial assistance to his family and especially  

for the marriage of his sister and she always quarreled with him over the  

matter. It was alleged that at the time of his sister’s marriage she raised an  

alarm that her ornaments were missing and cast suspicion on the groom’s  

mother.  Later  on,  the  alarm  turned  out  to  be  false,  causing  huge  

embarrassment to him and his family. Such incidents and the respondent’s  

behaviour and conduct towards the appellant made him the laughing stock in  

the town. He changed residence,  but that too did not  help to salvage his  

position.  The respondent used to leave for office early and returned very  

late.  When the appellant  remonstrated  over her  timings she became very  

angry  and  even  threatened  to  implicate  him  in  a  dowry  case.  In  those  

circumstances, the appellant had even contemplated committing suicide but  

was  held  back  by  friends  and  relatives.  The  appellant  also  gave  certain  

instances as evidence of her cruelty to him. In 1989, despite his advice to her  

not to go for attending his brother’s marriage since she was pregnant, she  

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undertook  the  travel  and  participated  in  the  marriage.  As  a  result,  she  

suffered a miscarriage there and, ironically, held the appellant and his family  

responsible  for  it.  In  1994,  the  appellant  sustained  some  injuries  in  an  

accident and had to undergo medical treatment. At that time she was living  

in a different town where she was posted in connection with her service.  

Despite intimation given to her she did not come to look after him and to  

give him moral  support because she did not want to take leave from the  

work. Again she did not come to serve his mother and to support her when  

she was admitted to a hospital for her eye surgery.

4. The respondent  denied  all  the  allegations  made  against  her  by  the  

appellant.  She  stated  that  she  did  not  act  cruelly  or  even  disrespectfully  

towards the appellant or her family members. Her case was that she was in  

service from before her marriage and her marriage with the appellant was on  

the clear understanding that she would not be forced to leave the service. But  

a  short  while  after  their  marriage,  the  appellant  changed  his  mind  and  

demanded that she should give up working. She was not agreeable to this  

and this seemed to hurt his pride. Further, their marriage failed to produce  

any child. This became another source for his estrangement from her and he  

eventually filed the divorce petition wanting to get rid of her.

5. Before  the  trial  court  the  appellant  examined  himself,  his  sister  

Rashmi and two of his neighbours from Vadodara, as witnesses, in support  

of his case. The respondent did not get herself examined nor did she produce  

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any witness. On the basis of the ex parte evidence adduced before it, the trial  

court  allowed  the  appellant’s  application  and  granted  him the  decree  of  

divorce under section 13(1)(ia) of the Act.

6. Against  the  judgment  and  decree  passed  by  the  trial  court,  the  

respondent filed an appeal in the High Court under section 28 of the Act.

7. Before the High Court, the appellant strongly defended the judgment  

of the trial court and pointed out that the respondent had not even led any  

evidence in support of her case. The High Court, however, took the view,  

and we think quite rightly, that even though the respondent did not produce  

any evidence, no decree of divorce could be granted unless the appellant was  

able to prove on the basis of the pleadings and the evidences produced by  

him that his case was covered by section 13(1)(ia) of the Hindu Marriage  

Act. On a consideration of the materials on record, the High Court found and  

held that no case of cruelty could be made out against the respondent and  

hence, the appellant was not entitled to the decree of dissolution of marriage  

on that ground.  

8. The High Court found that the judgment of the trial court was mainly  

based  on  three  allegations  cited  by  the  appellant  as  instances  of  the  

respondent’s cruelty. First, she put the blame on the appellant and his family  

members for the miscarriage suffered by her when she went to attend the  

marriage  of  the  appellant’s  brother,  against  his  advice.  The  High  Court  

pointed out that the miscarriage would have caused the greatest distress and  

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pain to the respondent and instead of sympathizing with her, the appellant  

chose the incident to cite as an instance of her cruelty. This showed not the  

cruelty  of  the  respondent  but  the  complete  insensitivity  of  the  appellant  

himself. The High Court also observed that a marriage in the family is an  

occasion for rejoicing in India in which the all family members are supposed  

to participate. If the respondent had failed to go to attend the marriage of her  

husband’s brother, then also she would have been liable to be blamed.

9. The High Court then took up the other allegation that the respondent  

did  not  come  to  attend  and  take  care  of  the  appellant  when  he  was  

undergoing  medical  treatment  in  a  hospital  for  the  injuries  caused  in  an  

accident.  The  High  Court  found  that  this  allegation  was  not  part  of  the  

appellant’s pleadings and the matter was introduced in course of evidence.  

The court  observed that  not  being  stated  in  the  pleadings,  the  allegation  

could not be taken into consideration. Even otherwise, apart from the oral  

statement made before the trial court, there was no material to support the  

allegation. The appellant did not examine any doctor or produce the medical  

records in connection with his treatment. In any event, one single instance,  

in  isolation,  was  hardly  sufficient  for  the  dissolution  of  marriage  on  the  

ground that the respondent treated the appellant with cruelty. The court also  

rejected  the  third  allegation  by  the  appellant  that  the  respondent  did  not  

come to attend and serve his mother when she was admitted in a hospital for  

eye surgery. The Court did not believe the case as neither the mother nor the  

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attending doctor was examined nor was any documentary evidence produced  

showing the mother’s surgery.

10. Having thus dealt with all the allegations made by the appellant and  

having considered the materials on record in some detail,  the High Court  

found that  the appellant had not been able to bring his case under section  

13(1)(ia)  of  the  Hindu  Marriage  Act.  It,  accordingly,  allowed  the  

respondent’s appeal and set aside the judgment and decree passed by the  

trial court.  

11. On  hearing  counsel  for  the  parties  and  on  going  through  the  

judgments of the trial court and the High Court, we are in agreement with  

the view taken by the High Court and we are satisfied that its findings do not  

warrant an interference by this Court in appeal.  

12. Counsel for the appellant then submitted that the appellant’s marriage  

with the respondent had completely broken down with no hope of revival  

and compelling them to live together would be very hard and unjust.  He  

made a plea for dissolution of marriage on the ground of its irretrievable  

breakdown.  In  support  of  the  submission,  learned  counsel  relied  on  the  

judgment of this Court in  Satish Sitole vs. Smt. Ganga,  (2008) 7 SCC 734  

wherein it was held in the last paragraph as follows:

“….. that since the marriage between the parties is dead for all  practical purposes and there is no chance of it being retrieved,  the  continuance  of  such  marriage  would  itself  amount  to  cruelty,  and,  accordingly,  in  exercise  of  our  powers  under  

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Article 142 of the Constitution we direct that the marriage of the  appellant and the respondent shall stand dissolved…”

13. We are not impressed by this submission at all. There is nothing to  

indicate  that  the  respondent  has  contributed  in  anyway  to  the  alleged  

breakdown of the marriage. If a party to a marriage, by his own conduct  

brings the relationship to a point of irretrievable breakdown, he/she cannot  

be allowed to seek divorce on the ground of breakdown of the marriage.  

That  would  simply  mean  giving  someone  the  benefits  of  his/her  own  

misdeeds. Moreover, in a later decision of this Court in Vishnu Dutt Sharma  

vs.  Manju Sharma (2009) 6  SCC 379,  it  has been held that  irretrievable  

breakdown of marriage is not a ground for divorce as it is not contemplated  

under section 13 and granting divorce on this ground alone would amount to  

adding  a  clause  therein  by  a  judicial  verdict  which  would  amount  to  

legislation by Court. In the concluding paragraph of this judgment, the Court  

observed:

“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.”

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14. On a consideration of the submissions made on behalf of the parties  

and  the  materials  on  record,  we  find  no  merit  in  this  appeal.  It  is,  

accordingly, dismissed but with no order as to costs.

…………………………….J. (B. SUDERSHAN REDDY)

…………………………….J. (AFTAB ALAM)

New Delhi, July 6, 2010.

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