Satish Sitole vs Ganga

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 2

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 3

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 4

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 5

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 6

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 7

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 8

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 9

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 10

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