VERY IMPORTANT POINT
When the cumulative effect of the various aspects in the case indisputably point out that the marriage is dead, both emotionally and practically, and there is no chance at all of the same being revived and there is long lapse of years since the filing of the petition, existence of such a state of affairs warrant the exercise of the jurisdiction of this Court under Art. 142 of the Constitution to grant a decree of divorce and dissolve the marriage between the parties but the wife must be paid a lump sum of Rs. ten lakhs as a condition precedent for the decree.

Headnote:HINDU LAW-Hindu Marriage Act, 1955-Section 13B-Joint petition for divorce-Wife withdrawing her consent for divorce before stage of enquiry-Marriage is dead, both emotionally and practically-No chance of it being revived-Long lapse of years since filing of petition-Existence of such a state of affairs warrant exercise of jurisdiction of this Court under Art. 142 of Constitution-Husband has married a second time and got a child during pendency of proceedings-Decree of divorce by mutual consent granted u/s 13B of the Act-Respondent should be paid, a lump sum of Rs. 10 lakhs and her costs in this litigation on or before 10.12.1997 as a condition precedent for the decree-Pleas regarding scope of Section 13B not considered. (Constitution of India-Art. 142)
       Held that the cumulative effect of the various aspects in the case indisputably point out that the marriage is dead, both emotionally and practically, and there is no chance at all of the same being revived and continuation of such relationship is only for name-sake and that no love is lost between the parties, who have been fighting like "kilkenny cats" and there is long lapse of years since the filing of the petition and existence of such a state of affairs warrant the exercise of the jurisdiction of this Court under Article 142 of the Constitution and grant a decree of divorce by mutual consent under Section 13B of the Act and dissolve the marriage between the parties, in order to meet the ends of justice, in all the circumstances of the case subject to certain safeguards. Appropriate safeguard or provision for the respondent/wife to enable her to have a decent living should be made. The appellant is a well to do person and is a Doctor. He seems to be affluent being a member of the medical fraternity. But his conduct during litigation is not above board. The suggestion or offer of a lump sum payment of rupees four to five lakhs, towards provision for wife, is totally insufficient, in modern days of high cost of living and particularly for a woman of the status of the respondent. At least, a sum of about Rs. 10,000/- p.m. will be necessary for a reasonable living. Taking into account all aspects appearing in the case, more so the conduct of the parties and the admissions contained in the joint petition filed in court, we hold that the respondent (wife) should be paid, a lump sum of rupees ten lakhs (Rs. 10 lakhs) (and her costs in this litigation as estimated by us) on or before 10.12.1997 as mentioned hereinbelow, as a condition precedent for the decree passed by this Court to take effect. There is no useful purpose served in prolonging the agony any further and the curtain should be rung at some stage. In coming to the above conclusion, we have not lost sight of the fact that the conduct of the husband is blame-worthy in that he married a second time and got a child during the pendency of the proceedings. But the factor cannot be blown out of proportion or viewed in isolation, nor can deter this Court to take a total and broad view of the ground realities of the situation when we deal with adjustment of human relationship. (Paras 21 & 22)
       Further held : We are of opinion that in the light of the fact situation present in this case, the conduct of the parties, the admissions made by the parties in the joint petition filed in Court, and the offer made by appellant s counsel for settlement, which appears to be bonafide, and the conclusion reached by us on an overall view of the matter, it may not be necessary to deal with the rival pleas urged by the parties regarding the scope of Section 13B of the Act and the correctness or otherwise of the earlier decision of this Court in Sureshta Devi s case. (Para 15)

JUDGMENT

Paripoornan, J.-Special Leave granted in both cases. The main appeal is the one arising out of Special Leave Petition (C) No. 20097 of 1996. The said appeal is filed against the judgment and order of the Gujarat High Court rendered in L.P.A. No. 373 of 1996. The appellant in both the appeals is Sri Ashok G. Hurra (the husband) and the respondent in both the appeals is Rupa Ashok Hurra (the wife). We will deal with the facts in the main appeal which is covered by Special Leave Petition No. 20097 of 1996.

2. The marriage between the appellant (husband) and the respondent (wife) was solemnized on 3.12.1970 according to the Hindu rites and custom at Ahmedabad. The couple have no issue. It seems difference of opinion cropped up between the parties. Presumably it persisted and so they could not stay together. On 30.6.1983, the wife left the matrimonial home. Thereafter, the couple started residing separately. On 21.8.1984, a joint petition for divorce was filed under section 13B of the Hindu Marriage Act. It was signed by both the parties and both of them appeared before Court. Both of them are highly educated and intelligent and managing their own affairs and business. In the joint petition, it was averred that all the matters regarding ornaments, clothes and other movables were settled between them and the wife had renounced her right to claim maintenance. The parties simply sought a decree of dissolution of the marriage by mutual consent.

3. Under Section 13B(2) of the Hindu Marriage Act (hereinafter referred to as the Act ), on a motion by both the parties six months after the date of presentation of the petition under sub-section (1) of the Act, and not later than eighteen months, the Court, shall, after enquiry, pass a decree of divorce by mutual consent. On 4.4.1985, the husband alone moved an application praying for passing a decree of divorce. On this motion, the Court issued notice to the wife. It is seen that the hearing of the petition commenced on 15.4.1985. On that day, on the joint application of the advocates of both the parties, the case was adjourned. Subsequently, the case stood posted to various dates and for one reason or other, it got itself adjourned. In the meanwhile, attempts were made by the trial Judge to bring about reconciliation between the husband and the wife. But, it was not successful. Such attempts were made on 30.9.1985, 10.10.1985, 30.10.1985, 9.12.1985, 16.12.1985, 10.1.1986 etc. Most of the requests for adjournments were made jointly by the advocates appearing for the parties. In all such requests, mention was made that talks of compromise/settlement between the parties were going on.

4. On 27.3.1986, the wife filed an application withdrawing her consent for divorce. She prayed that petition for divorce by mutual consent may be dismissed. This submission was objected to by the appellant, denying the averments made in the application and also stating further that the wife has no right to revoke the consent which she has legally granted. The husband filed an affidavit-in-reply on 9.4.1986 and contended that the wife has no right to withdraw or revoke the consent after the period of 18 months. He also prayed that consistent with the prayer made in the joint Hindu Marriage Petition filed on 21.8.1984 a decree for divorce by mutual consent may be passed. The wife seems to have filed an objection thereto.

5. After hearing the parties, the learned City Civil Judge (the trial court) held that since consent was withdrawn before the decree could be passed, it has to be accepted and, in this view, dismissed the petition for divorce by mutual consent. In the appeal filed by the husband, a learned single Judge of the Gujarat High Court in First Appeal No. 1070 of 1987, by judgment dated 15.3.1996, after a review of the entire facts and the relevant law on the subject, came to the following conclusions :

(1) that all the ingredients of section 13B(1) of the Act were satisfied when the p

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1997 Supreme(SC) 433

Cases Referred (5)