IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 7567 of 2004

Satish Sitole …Appellant

Vs.

Smt. Ganga    ...Respondent

J U D G M E N T

ALTAMAS KABIR,J.

1. As far back as on 13.1.1995 two Judges of this

Court in the case of Romesh Chander V. Savitri

(1995)  2  SCC  7)  had  occasion  to  pose  the

question as to whether a marriage which is

otherwise  dead  emotionally  and  practically

should  be  continued  for  name  sake.  In  the

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instant appeal, we are also faced  with the

same question.

2. Marriage  between  the  appellant  and  the

respondent  was  performed  on  22.5.1992

according  to  Hindu  rites   and  customs.  On

21.8.1994 the respondent, for whatever reason,

left her matrimonial home and went back to her

parents  and  the  couple  have  been  living

separately  ever  since. Soon thereafter, the

parties  took  recourse  to  the  law  when  on

30.12.1994 the appellant sent a notice to the

respondent  asking  her  to  return  to  her

matrimonial  home.   On  20.10.1995  the

respondent  lodged  a  complaint  against  the

appellant and his family members under Section

498-A of the Indian Penal Code alleging demand

of dowry and it is only on 2.2.2003 that they

were finally acquitted after a full trial. The

appellant also moved the Court of the Sub-

Divisional Magistrate for issuance of a search

warrant consequent upon which the respondent

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appeared  before  the  Magistrates’  Court  and

agreed to return to the appellant but she did

not return as agreed.

3. Ultimately, on 28.9.1998 the appellant filed

Matrimonial Case No.383/1998 before the Ninth

Additional  District  Judge, Indore, (MP), on

grounds of cruelty and desertion under Section

13(1)(1a)(1b) of the Hindu Marriage Act for

dissolution of the marriage. Despite holding

that the respondent had proved his case on

grounds of cruelty and desertion, the trial

court did not grant a decree for divorce, but

thought it appropriate to pass a decree of

judicial  separation  instead.  On  appeal

preferred by the respondent against the decree

of  judicial  separation  passed  by  the  trial

court  and  the  cross  appeal  filed  by  the

appellant seeking dissolution of marriage, the

High Court reversed the judgment and decree of

the trial court upon holding that it was on

account of the conduct of the appellant that

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the  respondent  was  compelled  to  leave  her

matrimonial home.  The learned Single Judge of

the  High  Court  also  held  that  he  was  not

satisfied that the appellant had been treated

with cruelty by the respondent-wife.  On such

finding the High Court  dismissed the appeal

filed  by  the  appellant  and  his  prayer  for

dissolution  of  marriage  and,  on  the  other

hand,  allowed  the  appeal  filed  by  the

respondent-wife and set aside the judgment and

decree of the trial court.

4. The respondent is in appeal against the said

judgment of the High Court.

5. Having regard to the finding of the High Court

that  the  respondent  had  not  treated  the

appellant with cruelty and was, on the other

hand, compelled to leave the matrimonial home

on account of the conduct of the appellant, a

different approach was taken on behalf of the

appellant  at  the  time  of  hearing  of  the

appeal. It was sought to be urged that even if

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the appellant had been unable to prove his

case of cruelty and desertion as grounds for

seeking  dissolution  of the marriage, having

regard to the irretrievable breakdown  of the

marriage, technicalities should not stand in

the way of this Court granting relief to the

appellant  in  exercise  of  its  power  under

Article  142  of  the  Constitution.  It  was

submitted that out of 16 years of marriage,

the  parties  have  lived  separately  for  14

years,  most  of  which  has  been  spent  in

acrimonious allegations against each other in

the  litigation  embarked   upon  by  both  the

parties.  It was submitted that there was no

possibility of retrieval of the marriage and

appropriate orders should be passed to end the

agony of both the parties.

6. Since, initially on behalf of the respondent-

wife it was made to appear that she was ready

and  willing  to  go  back  to  the  appellant,

subject to certain terms and conditions, we

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explored  the  possibility  of  an  amicable

solution, but such an attempt ended in failure

on account of the rigid stance taken on behalf

of the respondent. On behalf of the wife it

was  submitted  that  certain  orders  had  been

passed  by  the  Courts  below  for  payment  of

alimony by the appellant to the respondent but

that the same had not been complied with.  At

this stage it may  also be mentioned that a

male child (Chetan) had been born out of the

wedlock on 28.2.1993 and we had hoped that the

child would act as a catalyst to an amicable

settlement, but  even the existence of the

child could not bring about a reconciliation

between the parties.

7. Since despite the attempts at reconciliation

the Gordian Knot could not be  untied  and

clearly  the  marriage  has  broken  down

irretrievably, it was submitted on behalf of

both the parties that it would perhaps be to

the best  interest of the parties to have the

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marriage tie dissolved with adequate provision

by  way  of  permanent  alimony  for  the

respondent.  

8. It  is  in  this  background  that  we  have  to

consider the appellant’s prayer to set aside

the judgment of the High Court as also that of

the  trial  court  and  to  grant  a  decree  for

dissolution  of  the  marriage  between  the

appellant and the respondents.

9. The prayer made on behalf of the appellant and

endorsed by the respondent is neither novel

nor  new.  At  the  very  beginning  of  this

Judgment we had referred to  the decision of

this  Court  in  the  case  of  Romesh  Chander

(supra),  where  it  was  held  that  when  a

marriage is dead emotionally and practically

and there is no chance of its being retrieved,

the  continuance  of  such  a  marriage  would

amount to cruelty.  Accordingly, in exercise

of  powers  under  Article  142  of  the

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Constitution of India the marriage between the

appellant and the respondent was directed to

stand dissolved, subject to the condition that

the appellant would transfer his house in the

name of his wife.

10. The power vested in this Court under Article

142 of the Constitution  was also exercised in

– i)Anjana Kishore vs. Puneet Kishore,  (2002)

10 SCC 194; (ii) Swati Verma vs. Rajan Verma

and ors., (2004) 1 SCC 123; and (iii) Durga

Prasanna  Tripathy  vs.  Arundhati  Tripathy,

(2005)  7  SCC  352.   Of  the  three  aforesaid

cases, in the first two cases orders passed

were  on  Transfer Petitions where ultimately

the  parties  agreed  to  divorce  by  mutual

consent  under  Section  13-B  of  the  Hindu

Marriage Act, 1955. Resorting to the powers

reserved  to  this  Court  under  Article  142,

decrees  of  divorce  were  granted  to  put  a

quietus to all litigations  pending between

the parties on the ground that their marriages

had broken down irretrievably.  In the last of

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the  three  cases,  while  holding  that  the

marriage had broken down irretrievably, this

Court affirmed the decree of divorce passed by

the  Family  Court,  but  directed  payment  of

alimony  to the extent of Rs.1,50,000.

11. Having  dispassionately  considered  the

materials before us and the fact that out of

16 years of marriage the appellant and the

respondent had been living separately for 14

years, we are also convinced  that any further

attempt  at reconciliation will be futile and

it  would  be  in  the  interest  of  both  the

parties to sever  the matrimonial ties  since

the marriage has broken down irretrievably.

12. In  the  said  circumstances,  following  the

decision  of  this  Court  in  Romesh  Chander’s

case (supra)  we also are of the view 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

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powers under Article 142 of the Constitution

we direct that the marriage of the appellant

and  the  respondent  shall  stand  dissolved,

subject  to  the  appellant  paying  to  the

respondent a sum of Rupees Two lakhs by way of

permanent alimony.  In addition, the appellant

shall also pay the costs of this appeal to the

respondent,  assessed  at  Rs.25,000/-.  The

appeal      is disposed of accordingly.

……………………………………………..J.

(Altamas Kabir)

…………………………………………………J.

(Aftab Alam)

New Delhi

Dated: July 10,2008

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