REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1330 OF 2009         (Arising out of SLP(C) No.13166 of 2007)

Vishnu Dutt Sharma ..Appellant

versus

Manju Sharma ..Respondent

O R D E R

Leave granted.

This Appeal has been filed against  the judgment and order dated 07th

May, 2007 passed by the High Court of Delhi in FAO No.302 of 1996 whereby the

High Court has dismissed the appeal filed by the husband-appellant.

Facts giving rise to this appeal are:

The marriage took place between the appellant and the respondent on

26.02.1993 and a female child was born on 6.12.1993.  In the petition  filed by the

appellant, it was alleged that soon after the marriage the respondent was behaving

in a cruel manner derogatory to the appellant and the family members; that the

respondent avoided staying in the matrimonial home and never remained there for

more than 25 days together; and that after leaving the matrimonial  

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home on 19.5.1993 while  she was pregnant with the child,  the respondent  never

returned  to  live  with  the  appellant.   It  was  also  alleged  that  the  father  of  the

respondent is a retired Sub-Inspector of the Delhi Police and brother is a Constable

and both used to extend threats to the appellant and his family members that they

would be implicated in false cases.

Respondent  in  her  written  statement  stated  that  on  14.09.1994,  the

appellant and his family members gave her a severe beating which led to her being

medically examined by the doctors at Ram Manohar Lohia Hospital.  A copy of the

extract of the MLC register on that date was enclosed to the written statement.  It

was also stated that the appellant and his mother had taken the jewellery of the

respondent  and  given  it  to  the  wife  of  the  appellant's  brother  and  on  asking,

respondent was again assaulted and sought to be burnt alive by the family members

of the appellant.

The trial Court after examining the evidence came to the conclusion that

no case of cruelty had been made out as alleged by the appellant.  The Trial Court

held that considering that the respondent had been turned out of the matrimonial

house and had been given beatings for which she  

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was  medically  examined,it  was  the  respondent  who  was  treated  cruelly  by  the

appellant.

Being aggrieved, the appellant preferred an appeal in the High Court.

The High Court, by the impugned order, while dismissing the appeal filed

by the appellant-husband, observed in paras 13 & 17 as under:

“13.  ...The  respondent  has  categorically  stated  in  her examination-in-chief that  the appellant and her in laws beat her  mercilessly  on  14.09.1994  as  a  result  of  which  she  was medically examined at the Ram Manohar Lohia Hospital, New Delhi  on  15.09.1994.   She  has  also  withstood  the  cross- examination  on  this  aspect.   On  a  reading  of  the  entire evidence, it is not possible to conclude that the appellant has been  able to  establish that  the  respondent  treated him with cruelty.

17. In  the  instant  case,  the  respondent  wife  has  both before the trial Court and this Court been able to demonstrate that  far from treating the appellant with cruelty,  she in fact suffered  cruelty  at  the  hands  of  the  appellant.   To  grant divorce  to  the  appellant  despite  this  only  on  the  ground  of irretrievable breakdown would not, in the view of this Court, be doing justice to the respondent.”

We are not inclined to interfere with the finding of fact of both the courts

below that it was the appellant who treated the respondent with cruelty, rather than

the other way around.

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Learned counsel appearing for the appellant has streneously argued that

the  marriage  between  the  parties  be  dissolved  on  the  ground  of  irretrievable

breakdown.

In  this  connection  it  may   be  noted  that  in  Section  13  of  the  Hindu

Marriage Act,  1955 (for short  'the  Act')  there are several grounds  for granting

divorce e.g.  cruelty,  adultery,  desertion  etc.  but  no such ground of  irretrievable

breakdown of the marriage has been mentioned for granting divorce.  Section 13 of

the Act reads as under:

“13.Divorce—(1) Any marriage solemnized, whether before or after  the  commencement  of  this  Act,  may,  on  a  petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party--

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with  any  person other than  his  or her spouse; or

(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii)has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a  kind  and  to  such  an  extent  that  the  petitioner  cannot reasonably be expected to live with the respondent.

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(iv)has been suffering from a virulent and incurable form of leprosy; or

(v)has been suffering from venereal disease in a communicable form; or

(vi)has renounced the world by entering any religious order; or (vii)has not been heard of as being alive for a period of seven

years or more by those persons who would naturally have heard of it, had that party been alive.”

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.

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. If we grant divorce on the

ground of irretrievable breakdown, then we shall by  

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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.

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.

For the aforesaid reasons, this appeal is dismissed.  No order as to costs.

.........................J. [MARKANDEY KATJU]

.........................J. [V.S.SIRPURKAR]

NEW DELHI; FEBRUARY 27, 2009.