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CASE NO.: Transfer Petition (civil)  228 of 2004

PETITIONER: Sanghamitra Ghosh

RESPONDENT: Kajal Kumar Ghosh

DATE OF JUDGMENT: 20/11/2006

BENCH: G.P. MATHUR & DALVEER BHANDARI

JUDGMENT: J U D G M E N T

WITH TP (CRL.) NOS.105 & 171 OF 2004, TP (CIVIL)  NO.727 OF 2004 AND TP (CIVIL) NO.168 OF 2006.

Dalveer Bhandari, J.

The marriage of the petitioner was solemnized on  8.11.1999 with the respondent as per Hindu rites and  customs and was duly registered with the Registrar of  Marriage.  The parties have closely known each other  before marriage and the marriage was solemnized  according to the wishes of the petitioner and the  respondent.   

A male child was born out of the wedlock but,  unfortunately, the parties did not have a smooth marital  life.  According to the allegations of the petitioner,  Sanghamitra Ghosh, she was physically and mentally  tortured by the respondent and his parents.  According to  her, the degree of torture increased day by day and  eventually on 14.1.2001 she was driven out of the  marital home along with her minor child.  Thereafter, the  petitioner moved to her parents and started with them  from 15.1.2001. The respondent never cared to inquire  about the petitioner and her child and has never sent any  money either for the maintenance of the petitioner or her  child.   In these circumstances, she was forced to file a  criminal complaint on 4.8.2002 under Section 498A of  the Indian Penal Code read with Sections 3 & 4 of Dowry  Prohibition Act.

According to the version of the petitioner, she was  totally dependant on her father, who himself was very old  and was suffering from cancer and a considerable  amount had to be spent for his treatment.  In these  circumstances, the petitioner became an additional  burden on her parents. In order to maintain herself and  her child, she took up a petty job in the ICICI bank on a  meagre salary.  The petitioner now has been transferred  to Bangalore, as a result of which it had become  extremely difficult for her to attend the court proceedings  in West Bengal.   It is very expensive and time

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consuming.   In these circumstances, the petitioner had  filed a transfer petition praying that matrimonial suit  no.437 of 2002 titled as "Kajal Kumar Ghosh versus  Sanghamitra Ghosh" filed by the respondent-husband  under Section 9 of the Hindu Marriage Act, 1955 for  restitution of conjugal rights and pending in the court of  District Judge, Barasat be transferred to the court of  competent jurisdiction at Bangalore.

This Court on 26.3.2004 issued a show-cause  notice on the transfer petition.  Reply to the transfer  petition was filed by the respondent.   The datewise  sequence of events given by the respondent are contrary  to what had been averred by the petitioner.  According to  the respondent, the petitioner was not driven out of the  matrimonial home.  In fact, she had walked out of the  matrimonial home.  The respondent further submitted  that their marriage broke down due to the basic  difference in their social status, educational and cultural  background, lack of tolerance and inability to adopt and  adjust to a life of a middle class family.

During the pendency of this petition, the parties  have explored the possibility of an amicable settlement.   The matter was adjourned from time to time to give the  parties adequate time to mutually and amicably settle  their differences.  The parties, despite persuasion of the  Court, have not been able to sort out their differences  and decided to live separately.  According to the parties,  their marriage has been irretrievably broken down and  reconciliation is out of question.

Learned counsel for the parties have prayed that in  the peculiar facts and circumstances of this case, this  Court may grant a decree of divorce by mutual consent.   On 15.9.2006, the parties have jointly filed a petition  where they have spelt out the Terms of Compromise.  The  Terms of Compromise read as under: "1.     Shri Kajal Ghosh/husband agrees to pay  a sum of Rs.10 lacs (Rupees ten lacs) as  full and final settlement to his wife Smt.  Sanghamitra Ghosh.  This amount shall  be paid by Shri Kajal Kumar Ghosh in  the Court by way of Demand Draft in  favour of the petitioner.

2.      Both the parties further agree to let the  mother/Smt. Sanghamitra Ghosh have  the permanent custody of the minor son.

3.      However, the father, Kajal Ghosh will be  entitled to have visitation rights to the  child at the residence of the petitioner at  a mutually convenient date with prior  permission.

4.      Both the parties also agree to forthwith  withdraw/close all cases filed against  each other and pending before the  various courts in Kolkata and Bangalore.   These cases are:

(i)     Reference Case No.210/2002  pending before the learned  SDM Court, Burrackpore,

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West Bengal.

(ii)    MC No.713/2004 pending  before the Principal Family  Judge, Bangalore.

(iii)   Reference Case No.M-313 of  2003 pending before the  learned 5th Judicial  Magistrate Court,  Burrackpore, West Bengal.

(iv)    Matrimonial Suit  No.437/2002 pending before  the District Judge, Barasat,  West Bengal.

(v)     Guardianship Case  No.66/2004 pending before  the District Judge, Barasat,  West Bengal.   5.      Both the parties undertake that they  shall adhere to the terms of  compromise/settlement and that they  shall not litigate in future and have no  claim against each other whatsoever in  future."

It may be relevant to mention that on 16.10.2006,  respondent Kajal Kumar Ghosh had filed additional  affidavit in which detailed particulars of the matters  pending inter se between the parties have been  enumerated. On the same day, the parties had also filed  comprehensive terms of their compromise.  The said  terms are set out as under: "Both the parties viz. the petitioner and the  respondent have voluntarily and with their free  will, arrived at a compromise/settlement,  which has been reduced into writing and  which reads as under:

1.      Shri Kajal Ghosh/husband agrees to pay  a sum of Rs.10 lacs (Rupees ten lacs) as  full and final settlement to his wife, Smt.  Sanghamitra Ghosh.   This amount shall  be paid by Shri Kajal Ghosh in Court by  way of the following Demand Drafts  drawn on Allahabad Bank payable in her  favour at Bangalore:-

a)      DD No.634519 dated 11.9.2006 for  Rs.2,50,000/-

b)      DD No.634520 dated 11.9.2006 for  Rs.2,50,000/-.

c)      DD No.634521 dated 11.9.2006 for  Rs.2,50,000/-

d)      DD No.634522 dated 11.9.2006 for  Rs.2,50,000/-.

2.      Both the parties further agree to let the

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mother/Sanghamitra Ghosh have the  permanent custody of the minor son.

3.      However, the father/Kajal Ghosh will be  entitled to have visitation rights to the  child at the residence of his wife at a  mutually convenient date with prior  permission.

4.      The following cases are pending between  the parties before the various courts.   These cases are:

i)      REFERENCE CASE NO.210/2002  pending before the Learned SDM  Court, Burrackpore, West Bengal  filed by the wife/Sanghamitra under  Section 498A IPC read with Sections  3 and 4 of the Dowry Prohibition  Act.

TP (CRIMINAL) NO.171/2004 which has  been filed by the wife before this Hon’ble  Court arises out of these proceedings.

ii)     MC NO.713/2004 pending before  the Principal Family Judge,  Bangalore filed by the wife under  Section 13(1)(a) and (b) of the Hindu  Marriage Act for grant of divorce.

TP (CIVIL) NO.727/2004 which has been  filed by the husband before this Hon’ble  Court arises out of these proceedings.

iii)    REFERENCE CASE NO.M-313 OF  2003 pending before the Learned 5th  Judicial Magistrate Court,  Burrackpore, West Bengal filed by  wife under Section 125 CrPC for  maintenance.

TP (CRIMINAL) NO.105/2004 which has  been filed by the wife before this Hon’ble  Court arises out of these proceedings.

iv)     MATRIMONIAL SUIT NO.437/2002  pending before the District Judge,  Barasat, West Bengal filed by the  husband under Section 9 of the  Hindu Marriage Act for restitution of  conjugal rights.

TP (CIVIL) NO.228/2004 which has been  filed by the husband before this Court  arises out of these proceedings.

v)      GUARDIANSHIP CASE NO.66/2004  pending before the District Judge,  Barasat, West Bengal filed by the  husband under Section 25 of the  Guardians and Wards Act for  custody.

TP (CIVIL) NO.168/2006 which has been

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filed by the wife before this Court arises  out of these proceedings.

5.      Both the parties humbly request this  Court in exercise of its powers to do  complete justice to the parties,  quash/close all the above pending  proceedings in view of this settlement as  the parties do not intend pursuing the  litigation any further.

6.      Both the parties humbly request that all  the transfer petitions pending in this  Court (as mentioned earlier in para 4) to  be dismissed as infructuous.

7.      Both the parties submit that their  marriage has broken down irretrievably  and that there is no possibility of the  parties living together.  In these  circumstances, both parties would  humbly request this Court in exercise of  its powers to grant a decree of divorce by  mutual consent.

8.      Both the parties undertake that they  shall adhere to the terms of  compromise/settlement and that they  shall not litigate any further and will have  no claim against each other hereafter."

Learned counsel appearing for the parties have  prayed that in the peculiar facts and circumstances and  in the interest of justice, this Court, in exercise of its  jurisdiction under Article 142 of the Constitution, may  grant a decree of divorce by mutual consent.

Learned counsel for the parties have also drawn the  attention of this Court to the decision of Harpit Singh  Anand v. State of West Bengal reported in (2004) 10  SCC 505.  In this case, in almost similar circumstances,  this Court in order to put a quietus to all litigations  between the parties and not to leave any room for future  litigation and on the request of the said parties,  exercising the power vested under Article 142 of the  Constitution, dissolved the marriage and granted a  decree of divorce by mutual consent.

In the case of Kanchan Devi v. Promod Kumar  Mittan & Another reported in (1996) 8 SCC 90, where  the marriage of the parties was irretrievably broken  down, this Court exercised the power under Article 142 of  the Constitution of India and passed the following order: "6. In view of the peculiar facts and  circumstances of the case and being satisfied  that the marriage between the appellant and  the respondent has irretrievably broken down  and that there is no possibility of  reconciliation, we in exercise of our powers  under Article 142 of the Constitution of India  hereby direct that the marriage between the  appellant and the respondent shall stand  dissolved by a decree of divorce. All pending  cases arising out of the matrimonial

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proceedings and the maintenance  proceedings under Section 125 Cr. PC  pending between the parties shall stand  disposed of and consigned to the records in  the respective courts on being moved by  either of the parties by providing a copy of  this order, which has settled all those  disputes in terms of the settlement. This  appeal is disposed of in the above terms."

In the case of Ashok Hurra v. Rupa Bipin Zaveri  etc. reported in (1997) 4 SCC 226, this Court while  dealing with a matrimonial matter quoted few excerpts  from the Seventy-first Report of the Law Commission of  India on the Hindu Marriage Act, 1955 \026 "Irretrievable  Breakdown of Marriage" \026 dated 7.4.1978.  We deem it  appropriate to reproduce some excerpts from the said  report as under: "Irretrievable breakdown of marriage is  now considered, in the laws of a number of  countries, a good ground of dissolving the  marriage by granting a decree of divorce.

*                        *                        *

Proof of such a breakdown would be that  the husband and wife have separated and have  been living apart for, say, a period of five or ten  years and it has become impossible to  resurrect the marriage or to reunite the  parties. It is stated that once it is known that  there are no prospects of the success of the  marriage, to drag the legal tie acts as a cruelty  to the spouse and gives rise to crime and even  abuse of religion to obtain annulment of  marriage.

*                        *                        * The theoretical basis for introducing  irretrievable breakdown as a ground of divorce  is one with which, by now, lawyers and others  have become familiar. Restricting the ground  of divorce to a particular offence or  matrimonial disability, it is urged, causes  injustice in those cases where the situation is  such that although none of the parties is at  fault, or the fault is of such a nature that the  parties to the marriage do not want to divulge  it, yet there has arisen a situation in which the  marriage cannot be worked. The marriage has  all the external appearances of marriage, but  none of the reality. As is often put pithily, the  marriage is merely a shell out of which the  substance is gone. In such circumstances, it is  stated, there is hardly any utility in  maintaining the marriage as a facade, when  the emotional and other bounds which are of  the essence of marriage have disappeared. After the marriage has ceased to exist in  substance and in reality, there is no reason for  denying divorce. The parties alone can decide  whether their mutual relationship provides the  fulfilment which they seek. Divorce should be  seen as a solution and an escape route out of a

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difficult situation. Such divorce is  unconcerned with the wrongs of the past, but  is concerned with bringing the parties and the  children to terms with the new situation and  developments by working out the most  satisfactory basis upon which they may  regulate their relationship in the changed  circumstances. *                        *                        * Moreover, the essence of marriage is a  sharing of common life, a sharing of all the  happiness that life has to offer and all the  misery that has to be faced in life, an  experience of the joy that comes from enjoying,  in common, things of the matter and of the  spirit and from showering love and affection on  one’s offspring. Living together is a symbol of  such sharing in all its aspects. Living apart is  a symbol indicating the negation of such  sharing. It is indicative of a disruption of the  essence of marriage --"breakdown"- and if it  continues for a fairly long period, it would  indicate destruction of the essence of marriage  \026 "irretrievable breakdown"."

In order to do complete justice in the matrimonial  matters, this Court has been less hesitant in exercising  its extra-ordinary jurisdiction under Article 142 of the  Constitution.  To illustrate this fact, reference of some  decided matrimonial cases is given hereinbelow.

In Swati Verma v. Rajan Verma & Others  reported in (2004) 1 SCC 123, this Court came to a  definite conclusion that the marriage between the parties  has irretrievably broken down and with a view to restore  good relationship and to put quietus to all litigations  between the parties and not to leave any room for future  litigation, so that they may live peacefully hereafter, this  Court granted a decree of divorce by mutual consent  while exercising its power under Article 142 of the  Constitution.   

This Court while exercising its unique power vested  under Article 142 of the Constitution in a transfer  petition in the case of Madhuri Mehta v. Meet Verma  reported in (1997) 11 SCC 81, observed as under: "During the course of hearing of this transfer  petition, parties have jointly made an  application under Section 13-B of the Hindu  Marriage Act, 1955 before us praying for  dissolution of their marriage by mutual  consent and in the body of the application a  provision has been made for their only child.  Though the child has been conferred the right  to visit his father as and when he likes, there  is no corresponding right with the father to  visit his child. That state of affairs would be  violating the rights of the child and the father.  The husband will, thus, have a right of  visitation to see his child but after giving due  intimation to the mother. The parties have  been estranged and have kept apart since  January 1996. Earlier to the present status,  the parties had their earlier marriages broken  or disrupted. The husband lost his wife in a

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vehicular accident and the wife had divorced  her earlier husband. In this background their  differences can well be appreciated when both  of them are highly educated doctors. Keeping  that in view, we entertain this application and  grant them divorce by mutual consent in  exercise of our powers under Article 142 of the  Constitution, for which there is ample  authority reflective from past decisions of this  Court. The divorce petition pending in the  Family Court at Patna, shall stand disposed of  automatically by this order.         The transfer petition and the divorce  petitions are disposed of accordingly."

In another transfer petition in the matrimonial  matter, in Anita Sabharwal v. Anil Sabharwal  reported in (1997) 11 SCC 490, this Court was of the  view that there was no hope for the parties to live  together and passed the following order: "A divorce petition being HMA Case  No.863 of 1994 preferred by the respondent- husband was pending in the Court of Shri A.K.  Pathak, Additional District Judge, Delhi.  The  instant transfer petition was moved by the  petitioner-wife seeking transfer of the said case  to the Family Court, Mumbai.  During the  pendency of the transfer petition, parties as  well as their counsel had on 9.9.1996 put on  record a compromise deed wherein they have  agreed to get divorce by mutual consent.   Strictly speaking, the preconditions of such  claim have not been laid inasmuch as a  petition to that effect has not been filed under  Section 13-B of the Hindu Marriage Act, 1955  (the Act) before the first matrimonial court,  and that the statutory period of 6 months has  not even commenced. Be that as it may, it  stands established beyond doubt on our  summoning of the original file \026 HMA Case  No.863 of 1994 \026 that the parties were married  about 14 years ago, have spent the prime of  their life in acrimony and litigating and that it  is time that their mutuality bears some fruit in  putting them apart.  Therefore, we take the  divorce petition HMA Case No.863 of 1994 on  our own file and import thereto the  compromise deed put on record by the parties  jointly.  In terms therewith, a sum of Rs.7  lakhs stands paid to the wife by means of 3  separate bank drafts of Rs.2 lakhs, Rs.2 lakhs  and Rs.3 lakhs.  Recurring provision has been  made therein for their children’s education and  visitation rights of the father.  We have  questioned the parties and they are eager to  dissolve the matrimonial tie so that they can  rearrange their lives well in time.  We,  therefore, in the spirit of Section 13-B of the  Act, and in view of the fact that all hopes to  unite them together have gone, hereby grant to  the parties divorce by a decree of dissolution  by mutual consent to end their prolonged  unhappiness. Ordered accordingly. The  transfer petition stands disposed of."

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We have heard learned counsel for the parties.  This  Court adjourned the proceedings from time to time to  ensure that the parties may reconcile the differences and  live together again, but this has not happened.  It is  indeed 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 as  aptly observed by this Court, in a recent decision in  Naveen Kohli v. Neelu Kohli reported in (2006) 4 SCC  558, that 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.   

In the instant case, we are fully convinced that the  marriage between the parties has irretrievably broken  down because of incompatibility of temperament.  In fact  there has been total disappearance of emotional  substratum in the marriage.  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, therefore, the  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 as observed in Naveen  Kohli’s case (supra).  

In view of peculiar facts and circumstances of this  case, we consider it appropriate to exercise the  jurisdiction of this Court under Article 142 of the  Constitution.

In order to ensure that the parties may live  peacefully in future, it has become imperative that all the  cases pending between the parties are directed to be  disposed of.  According to our considered view, unless all  the pending cases are disposed of and we put a quietus  to litigation between the parties, it is unlikely that they  would live happily and peacefully in future.  In our view,  this will not only help the parties, but it would be  conducive in the interest of the minor son of the parties.

On consideration of the totality of the facts and  circumstances of the case, we deem it appropriate to  pass the order in the following terms:  a)      The parties are directed to strictly adhere  to the Terms of Compromise filed before  this Court and also the orders and  directions passed by this  Court;

b)      We direct that the cases pending between  the parties, as enumerated in the  preceding paragraphs, are disposed of in  view of the settlement between the  parties; and

c)      All pending cases arising out of the  matrimonial proceedings including the  case of restitution of conjugal rights and  guardianship case between the parties  shall stand disposed of and consigned to  the records in the respective courts on  being moved by either of the parties by  providing a copy of this order, which has  settled all those disputes in terms of the  settlement.

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These transfer petitions are accordingly disposed of.   In the facts and circumstances of the case, we direct the  parties to bear their own costs.