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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.