REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 8196-8197 OF 2010 (Arising out of S.L.P. (Civil) Nos.5289-5290 of 2010)

Sanjeeta Das                                                  ….Appellant

Versus

Tapan Kumar Mohanty                            ….Respondent

JUDGMENT

AFTAB ALAM, J.  

1. Leave granted.

2. The order of a division bench of the Orissa High Court that is before  

us in this appeal, though passed in a judicial proceeding, appears to us to be  

completely alien to the law. The relevant facts to see the impugned order in  

perspective may be stated thus.

3. The respondent and the appellant were married in accordance with the  

Hindu religious rites. About three years after the marriage, he filed a petition  

(Civil Proceeding No.136 of 1997) before the Family Court, Rourkela for

dissolution  of  his  marriage with  the  appellant  on grounds  of  cruelty  and  

desertion [clauses (ia) and (ib) of section 13(1) of the Hindu Marriage Act,  

1955]. The appellant strongly resisted the grounds taken by the respondent  

for dissolution of their marriage and took the plea that in reality she had  

been deserted and subjected to cruelty by the respondent. For the purpose of  

the  present  appeal,  there  is  no  need  for  us  to  go  into  the  details  of  the  

allegations made by the respondent in his petition or the counter-allegations  

made against him in the written statement filed by the appellant. Suffice it to  

note that on the basis of the evidences adduced before it, the Family Court in  

its  judgment  dated  October  29,  2005  arrived  at  findings  against  the  

respondent on both the issues of desertion and cruelty. Invoking, however,  

the provision of section 23A of the Act, it directed the appellant to resume  

cohabitation with her husband, the respondent,  within 3 months from the  

date of the judgment. The operative order of the Family Court is as follows:

“In  the  ultimate  analysis,  while  rejecting  the  prayer  of  the  petitioner seeking for grant of dissolution of his marriage with  the  respondent  by  a  decree  of  divorce,  I  pass  a  decree  of  restitution of the conjugal life of the parties. Accordingly, the  respondent-wife is directed to restitute her conjugal life with the  petitioner-husband within 3 months, hence on the event of the  respondent coming to the fold of the petitioner to restitute her  conjugal life with the latter, he shall co-operate with the former  and that consequent upon success of the restitution of conjugal  life  between  the  parties,  the  impact/gravity  of  the  criminal  proceeding u/s. 498A IPC started against the petitioner and his  

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family  members  at  the  instance  of  the  respondent  shall  be  loosen”

4. Against  the  judgment  and  order  passed  by  the  Family  Court,  the  

respondent preferred appeal (MATA No.59 of 2005) before the Orissa High  

Court. The appeal was disposed of by a division bench of the High Court by  

order  dated  September  2,  2009.  From  that  order  it  appears  that  the  

respondent filed an affidavit before the court declaring his willingness to pay  

a sum of Rs.10,00,000.00 (rupees ten lakhs only) as life term maintenance of  

the  appellant  and for  the  expenses  of  marriage of  their  daughter  Kumari  

Ayushi Mohanty (Richi), in consideration of the dissolution of his marriage  

with the appellant by a decree of divorce and compounding of a criminal  

case instituted against him by the appellant. The respondent further stated in  

the affidavit that he would pay the sum of Rs.5,00,000.00 (rupees five lakhs  

only) within 4 months from the date of passing of the decree of divorce and  

the balance amount of Rs.5,00,000.00 (rupees five lakhs only) in 4 equal  

installments spread over a period of 2 years from the date of the passing of  

the decree of divorce. The High Court in its order dated September 2, 2009  

simply  paraphrased  the  statements  made  in  the  affidavit  filed  by  the  

respondent and made it the order of the court. The order dated September 2,  

2009 was later modified by order dated November 20, 2009 to the further  

advantage  of  the  respondent.  It  was  clarified  that  the  payment  of  

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Rs.10,00,000.00  (rupees  ten  lakhs  only)  was  not  only  for  the  lifetime  

maintenance of the appellant but also for the maintenance of the daughter,  

Kumari Ayushi Mohanty (Richi) till she got married besides the expenses  

that might be incurred for her marriage.  

5. These two orders passed by the High Court, by which it purported to  

grant a decree of divorce for dissolution of the respondent’s marriage with  

the appellant are now before us in appeal and plainly speaking we are unable  

to put any meaning to the order of the High Court. The marriage between the  

respondent and the appellant was admittedly solemnized in accordance with  

the Hindu religious rites. A Hindu marriage can be dissolved only on any of  

the grounds plainly and clearly enumerated under section 13 of the Hindu  

Marriage Act. The law does not permit the purchase of a decree of divorce  

for consideration, with or without the consent of the other side.

6. Leaned counsel appearing for the respondent urged us not to interfere  

in  the  matter  submitting  that  the  respondent  and  the  appellant  had  lived  

together barely for four months. He stated that the marriage had taken place  

on April 29, 1994 and from August 24, 1994 they are living separately. He  

also tried to argue that  the order of the High Court  was passed with the  

consent of the parties and for that reason also this Court should not interfere  

in the matter. We are not prepared to accept the submission for a moment.  

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First, there is nothing to indicate that the order was passed with the consent  

of the appellant. All that is said in the order is as under:

“On consideration of such affidavit  and the submission of the  learned  counsel  appearing  for  the  parties,  we  dispose  both  these appeals with the following directions”                                                                (Emphasis added)

7. The affidavit referred to in the order is the one filed by the respondent  

and consideration of submission of counsel for the parties does not indicate  

that the appellant had given her consent for dissolution of her marriage with  

the  respondent  on  payment  of  Rs.10,00,000.00  (rupees  ten  lakhs  only).  

Secondly, and more importantly, the consent of the parties is of no relevance  

in the matter. No court can assume jurisdiction to dissolve a Hindu marriage  

simply  on  the  basis  of  the  consent  of  the  parties  de  hors the  grounds  

enumerated under section 13 of the Act,  unless of course the consenting  

parties proceed under section 13B of the Act.

8. In the light of the discussions made above, we find the order of the  

High Court completely unsustainable. It is set aside and the appeal against  

the judgment and order passed by the Family Court is restored to its file. The  

High  Court  must  now  hear  and  dispose  of  the  appeal  along  with  the  

connected  appeal  afresh,  in  accordance  with  law.  Since  the  matter  is  

somewhat  old,  the  High  Court  may  give  the  appeals  some  priority  and  

dispose them of at an early date.

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9. In  the  result,  the  appeals  are  allowed  with  costs,  quantified  at  

Rs.15,000.00 (rupees fifteen thousand only).

…………………................J                                                                               (AFTAB ALAM)

…………..………................J                                                                               (R.M. LODHA) New Delhi September 22, 2010.  

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