Neelam Kumar vs Dayarani

Neelam Kumar ... Appellant

Versus

Dayarani ... Respondent

JUDGMENT

AFTAB ALAM, J.

1. This appeal, by the husband, is filed against the judgment and order

dated September 14, 2005 passed by the Madhya Pradesh High Court (at

Jabalpur) in F.A.O. 462 of 2003. By the judgment coming under appeal, the

High Court set aside the judgment dated August 23, 2003 passed by the 1st

Additional District Judge, Balaghat in HMA Case No.26A/02, allowing the

appellant's petition and granting him the decree of divorce under section

13(1)(ia) of the Hindu Marriage Act, 1955.

2. The marriage between the parties took place on December 7, 1986 and

they lived together first at Ankleshwar and later at Vadodara. There is no

child from the wedlock.

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3. According to the appellant, barely after 8 or 9 months of the marriage,

the wife (respondent in this appeal) became quite aggressive and insulting,

and started treating him and his family members in a cruel manner. He tried

to make adjustments in the hope that she would correct herself but finally,

when it became impossible to carry along with her, he filed the petition for

dissolution of marriage under section 13(1)(ia) of the Act, on grounds of

cruelty. In the application filed by the appellant, it was stated that his wife

objected to his giving any financial assistance to his family and especially

for the marriage of his sister and she always quarreled with him over the

matter. It was alleged that at the time of his sister's marriage she raised an

alarm that her ornaments were missing and cast suspicion on the groom's

mother. Later on, the alarm turned out to be false, causing huge

embarrassment to him and his family. Such incidents and the respondent's

behaviour and conduct towards the appellant made him the laughing stock in

the town. He changed residence, but that too did not help to salvage his

position. The respondent used to leave for office early and returned very

late. When the appellant remonstrated over her timings she became very

angry and even threatened to implicate him in a dowry case. In those

circumstances, the appellant had even contemplated committing suicide but

was held back by friends and relatives. The appellant also gave certain

instances as evidence of her cruelty to him. In 1989, despite his advice to her

not to go for attending his brother's marriage since she was pregnant, she 3

undertook the travel and participated in the marriage. As a result, she

suffered a miscarriage there and, ironically, held the appellant and his family

responsible for it. In 1994, the appellant sustained some injuries in an

accident and had to undergo medical treatment. At that time she was living

in a different town where she was posted in connection with her service.

Despite intimation given to her she did not come to look after him and to

give him moral support because she did not want to take leave from the

work. Again she did not come to serve his mother and to support her when

she was admitted to a hospital for her eye surgery.

4. The respondent denied all the allegations made against her by the

appellant. She stated that she did not act cruelly or even disrespectfully

towards the appellant or her family members. Her case was that she was in

service from before her marriage and her marriage with the appellant was on

the clear understanding that she would not be forced to leave the service. But

a short while after their marriage, the appellant changed his mind and

demanded that she should give up working. She was not agreeable to this

and this seemed to hurt his pride. Further, their marriage failed to produce

any child. This became another source for his estrangement from her and he

eventually filed the divorce petition wanting to get rid of her.

5. Before the trial court the appellant examined himself, his sister

Rashmi and two of his neighbours from Vadodara, as witnesses, in support

of his case. The respondent did not get herself examined nor did she produce 4

any witness. On the basis of the ex parte evidence adduced before it, the trial

court allowed the appellant's application and granted him the decree of

divorce under section 13(1)(ia) of the Act.

6. Against the judgment and decree passed by the trial court, the

respondent filed an appeal in the High Court under section 28 of the Act.

7. Before the High Court, the appellant strongly defended the judgment

of the trial court and pointed out that the respondent had not even led any

evidence in support of her case. The High Court, however, took the view,

and we think quite rightly, that even though the respondent did not produce

any evidence, no decree of divorce could be granted unless the appellant was

able to prove on the basis of the pleadings and the evidences produced by

him that his case was covered by section 13(1)(ia) of the Hindu Marriage

Act. On a consideration of the materials on record, the High Court found and

held that no case of cruelty could be made out against the respondent and

hence, the appellant was not entitled to the decree of dissolution of marriage

on that ground.

8. The High Court found that the judgment of the trial court was mainly

based on three allegations cited by the appellant as instances of the

respondent's cruelty. First, she put the blame on the appellant and his family

members for the miscarriage suffered by her when she went to attend the

marriage of the appellant's brother, against his advice. The High Court

pointed out that the miscarriage would have caused the greatest distress and 5

pain to the respondent and instead of sympathizing with her, the appellant

chose the incident to cite as an instance of her cruelty. This showed not the

cruelty of the respondent but the complete insensitivity of the appellant

himself. The High Court also observed that a marriage in the family is an

occasion for rejoicing in India in which the all family members are supposed

to participate. If the respondent had failed to go to attend the marriage of her

husband's brother, then also she would have been liable to be blamed.

9. The High Court then took up the other allegation that the respondent

did not come to attend and take care of the appellant when he was

undergoing medical treatment in a hospital for the injuries caused in an

accident. The High Court found that this allegation was not part of the

appellant's pleadings and the matter was introduced in course of evidence.

The court observed that not being stated in the pleadings, the allegation

could not be taken into consideration. Even otherwise, apart from the oral

statement made before the trial court, there was no material to support the

allegation. The appellant did not examine any doctor or produce the medical

records in connection with his treatment. In any event, one single instance,

in isolation, was hardly sufficient for the dissolution of marriage on the

ground that the respondent treated the appellant with cruelty. The court also

rejected the third allegation by the appellant that the respondent did not

come to attend and serve his mother when she was admitted in a hospital for

eye surgery. The Court did not believe the case as neither the mother nor the 6

attending doctor was examined nor was any documentary evidence produced

showing the mother's surgery.

10. Having thus dealt with all the allegations made by the appellant and

having considered the materials on record in some detail, the High Court

found that the appellant had not been able to bring his case under section

13(1)(ia) of the Hindu Marriage Act. It, accordingly, allowed the

respondent's appeal and set aside the judgment and decree passed by the

trial court.

11. On hearing counsel for the parties and on going through the

judgments of the trial court and the High Court, we are in agreement with

the view taken by the High Court and we are satisfied that its findings do not

warrant an interference by this Court in appeal.

12. Counsel for the appellant then submitted that the appellant's marriage

with the respondent had completely broken down with no hope of revival

and compelling them to live together would be very hard and unjust. He

made a plea for dissolution of marriage on the ground of its irretrievable

breakdown. In support of the submission, learned counsel relied on the

judgment of this Court in Satish Sitole vs. Smt. Ganga, (2008) 7 SCC 734

wherein it was held in the last paragraph as follows:

"..... 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 powers under 7 Article 142 of the Constitution we direct that the marriage of the appellant and the respondent shall stand dissolved..."

13. We are not impressed by this submission at all. There is nothing to

indicate that the respondent has contributed in anyway to the alleged

breakdown of the marriage. If a party to a marriage, by his own conduct

brings the relationship to a point of irretrievable breakdown, he/she cannot

be allowed to seek divorce on the ground of breakdown of the marriage.

That would simply mean giving someone the benefits of his/her own

misdeeds. Moreover, in a later decision of this Court in Vishnu Dutt Sharma

vs. Manju Sharma (2009) 6 SCC 379, it has been held that irretrievable

breakdown of marriage is not a ground for divorce as it is not contemplated

under section 13 and granting divorce on this ground alone would amount to

adding a clause therein by a judicial verdict which would amount to

legislation by Court. In the concluding paragraph of this judgment, the Court

observed:

"If we grant divorce on the ground of irretrievable breakdown, then we shall by 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."

8 14. On a consideration of the submissions made on behalf of the parties

and the materials on record, we find no merit in this appeal. It is,

accordingly, dismissed but with no order as to costs.

..................................J. (B. SUDERSHAN REDDY)

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

New Delhi, July 6, 2010.