Sukhendu Das vs Rita Mukherjee

working in the State of West Bengal. Their marriage was

performed on 19th June, 1992 as per the Special Marriage Act,

1954 (hereinafter referred to as “the Act”). A girl child was

born out of the wedlock on 14th April, 1993. There was

matrimonial discord between the Appellant and the

Respondent and they were living separately since the year

2000. The Appellant filed an application under Section 27 of

the Act seeking a divorce.

2. The Appellant alleged that the differences arose because

of the improper behavior of the Respondent in not showing

due respect to his ailing father. It was further alleged that the 1 Respondent deserted him and refused to give the custody of

the child to him. The Appellant further averred in the

application that the Respondent did not visit him even when

he was seriously ill. The Respondent is accused of using

intemperate language and threatening the Appellant with

filing of criminal cases if he perused the petition for divorce

which he proposed in the year 2005.

3. The Respondent filed a written statement denying the

allegations made in the application filed by the applicant for

divorce. She refuted all the averments in the application and

sought for dismissal of the application for divorce. The

Respondent did not participate in the proceedings before the

trial court after filing the written statement. The Chief Judge,

City Civil Court, Calcutta by the judgment dated 6 th August,

2009 dismissed the application for divorce. The Appeal filed

against the said judgment was dismissed by the High Court of

Calcutta on 4th April, 2012. The Respondent did not seek to

appear before the High Court also. The correctness of the

judgment of the High Court is assailed in the above Appeal.

4. After referring to the pleadings in the case, the trial

court found that the Appellant failed to prove cruelty on the

2 part of the Respondent. The evidence adduced by the

Appellant was scrutinized by the trial court to come to a

conclusion that the Appellant did not make out a case for

divorce. The High Court, taking note of the fact that the

Appellant and the Respondent are judicial officers, made an

attempt for conciliation between the parties. However, in

spite of the effort of the High Court, both the Appellant and

the Respondent did not appear personally before the High

Court. Despite taking note of the fact that the Appellant and

the Respondent were living separately since the year 2000,

the High Court dismissed the Appeal by holding that

irretrievable breakdown of marriage cannot be a ground for

divorce. The High Court held that the Appellant failed to

prove mental cruelty on the part of the Respondent.

5. Notice was issued to the Respondent on 8 th October,

2012 to explore the possibility of an amicable resolution to

the matrimonial dispute. The parties were directed to appear

before the Mediation Centre of the Supreme Court on 21 st

November, 2012. The Respondent did not appear before the

Mediation Centre in spite of service of the Notice. She chose

not to appear before this Court. Fresh Notice was ordered on

3 17th August, 2015 but the Respondent did not appear in spite

of receipt of Notice again.

6. Mr. Raja Chatterjee, learned counsel appearing for the

Appellant submitted that the Respondent deserted the

Appellant about 17 years back and she refused to come back

and live with him. Apart from the allegation of desertion, the

learned counsel also alleged mental cruelty on the part of the

Respondent who threatened the Appellant in the year 2005

that she would get a criminal case filed against him if he did

not stop attempts to get the divorce. The learned counsel

further submitted that the Appellant and the Respondent

have been living apart due to matrimonial discord since 17

years and for all practical purposes the marriage has broken

down.

7. The Respondent, who did not appear before the trial

court after filing of written statement, did not respond to the

request made by the High Court for personal appearance. In

spite of service of Notice, the Respondent did not show any

interest to appear in this Court also. This conduct of the

Respondent by itself would indicate that she is not interested

in living with the Appellant. Refusal to participate in

4 proceeding for divorce and forcing the appellant to stay in a

dead marriage would itself constitute mental cruelty [Samar

Ghosh v. Jaya Ghosh1]. The High Court observed that no

attempt was made by either of the parties to be posted at the

same place. Without entering into the disputed facts of the

case, we are of the opinion that there is no likelihood of the

Appellant and the Respondent living together and for all

practical purposes there is an irretrievable breakdown of the

marriage.

8. This court in a series of judgments has exercised its

inherent powers under Article 142 of the Constitution for

dissolution of a marriage where the Court finds that the

marriage is totally unworkable, emotionally dead, beyond

salvage and has broken down irretrievably, even if the facts

of the case do not provide a ground in law on which the

divorce could be granted [Manish Goel v. Rohini Goel2]. Admittedly, the Appellant and the Respondent have been

living separately for more than 17 years and it will not be

possible for the parties to live together and there is no

purpose in compelling the parties to live together in

1 (2007) 4 SCC 511 [para101 (xiv)] 2 (2010) 4 SCC 393 [para 11]

5 matrimony [Rishikesh Sharma v. Saroj Sharma3]. The

daughter of the Appellant and the Respondent is aged about

24 years and her custody is not in issue before us. In the

peculiar facts of this case and in order to do complete justice

between the parties, we allow the Appeal in exercise of our

power under Article 142 of the Constitution of India, 1950.

9. For the aforementioned reasons, the Appeal is allowed

and the application for divorce filed by the Appellant under

Section 27 of the Act is allowed.

.................................J. [S.A. BOBDE]

.................................J. [L. NAGESWARA RAO] NEW DELHI;

OCTOBER 09, 2017.

3 (2007) 2 SCC 263 [para 4 and 5]

6