Important point
Where parties in divorce petition were living separately for 14 years and circumstances indicated irretrievable breakdown of marriage and there were no efforts on part of opposite party to go back to her matrimonial home factum of separation and animus deserendi were established.

Headnote:Hindu Marriage Act, 1955—Section 13(1)—Petition for divorce by husband-appellant on ground of cruelty and desertion—Family Court allowed petition and granted decree of divorce —High Court set aside the decree holding that appellant had failed to prove cruelty and desertion as against respondent—Appeal—Marriage had been solemnised on 5.3.1991 and parties were living separately for 14 years and it was an irretrievable breakdown of marriage and had been rendered a complete dead wood—Respondent had not taken any steps from her side to go back to her matrimonial home—Family Court had given cogent and convincing reasons for passing the decree for divorce—Criminal case of dowry harassment was initiated by respondent only after seven years and that too on receiving notice of petition from Family Court—Appellant had proved both factum of separation as well as animus deserendi—Divorce decree granted by Family Court was liable to be restored—Family Court had granted Rs. 50000/- in favour of respondent towards permanent alimony—Respondent was in employment and appellant was out of job—A further sum of Rs. 1 lac by way of permanent alimony granted to meet ends of justice.
       Held : Today the position is that the parties have been living separately for almost 14 years which means that there is an irretrievable breakdown of marriage and that because of such breakdown of marriage the marriage between the parties has been rendered a complete deadwood. Learned counsel for the appellant argued that no useful purpose will be served by keeping such a marriage alive on paper, which would only aggravate the agony of the parties. Therefore, he would pray that in the fitness of things and in the interest of justice, the marriage between the parties is forthwith terminated by a decree of divorce. We have perused the orders passed by the Family Court and also of the High Court. Both the Family Court as well as the High Court made efforts to bring about a reconciliation/rapprochement between the parties. The Family Court in this regard gave a clear finding that in spite of good deal of endeavour to effect a reconciliation the same could not be effected because of the insistence of the respondent to remain separately from her in-laws. It was totally an impracticable solution. (Para 15)
       In our view that 14 years have elapsed since the appellant and the respondent have been separated and there is no possibility of the appellant and the respondent resuming the normal marital life even though the respondent is willing to join her husband. There has been an irretrievable breakdown of marriage between the appellant the respondent. The respondent has also preferred to keep silent about her absence during the death of her father-in-law and during the marriage ceremony of her brother-in-law. The complaint before the Mahila Commission does not implicate the appellant for dowry harassment though the respondent in her evidence before the Family Court has alleged dowry harassment by the appellant. It is pertinent to mention here that a complaint before the Mahila Commission was lodged after 7 years of the marriage alleging torture for dowry by the mother-in-law and brother-in-law during the initial years of marriage. The said complaint was filed in 1998 that is only after notice was issued by the Family Court on 27.03.1997 on the application filed by the appellant under Section 13 of the Hindu Marriage Act. The Family Court, on examination of the evidence on record, and having observed the demeanor of the witnesses concluded that the appellant had proved that the respondent is not only cruel but also deserted him since more than 7 years. The desertion as on date is more than 14 years and, therefore, in our view there has been an irretrievable breakdown of marriage between the appellant and the respondent. Even the Conciliation Officer before the Family Court gave its report that the respondent was willing to live with the appellant on the condition that they lived separately from his family. The respondent in her evidence had not disputed the fact that attempts have been made by the appellant and his family to bring her back to the matrimonial home for leading a conjugal life with the appellant. Apart from that, relationship between the appellant and the respondent have become strained over the years due to the desertion of the appellant by the respondent for several years. Under the circumstances, the appellant had proved before the Family Court both the factum of separation as well as animus deserendi which are the essential elements of desertion. The evidence adduced by the respondent before the Family Court belies her stand taken by her before the Family Court. Enough instances of cruelty meted out by the respondent to the appellant were cited before the Family Court and the Family Court being convinced granted the decree of divorce. The harassment by the in-laws of the respondent was an after-thought since the same was alleged after a gap of 7 years of marriage and desertion by the respondent. The appellant having failed in his efforts to get back the respondent to her matrimonial home and having faced the trauma of performing the last rites of his deceased father without the respondent and having faced the ill-treatment meted out by the respondent to him and his family had, in our opinion, no other efficacious remedy but to approach the Family Court for decree of divorce. (Para 20)
       Marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. The Family Court has directed the appellant to pay a sum of Rs. 50,000/- towards permanent alimony to the respondent and pursuant to such direction the appellant had deposited the amount by way of bank draft. Considering the status of parties and the economic condition of the appellant who is facing criminal prosecution and out of job and also considering the status of the wife who is employed, we feel that a further sum of Rs. 1 lakh by way of permanent alimony would meet the ends of justice. (Para 28)

Judgment

Dr. AR. Lakshmanan, J.—Leave granted.

2. This appeal is directed against the judgment dated 23.12.2003 passed by the High Court of Orissa at Cuttack in Civil Appeal No. 10 of 2001 whereby the High Court allowing the appeal filed by the respondent-herein/wife under Section 13(1) of the Hindu Marriage Act, 1955 on the ground of cruelty and desertion.

3. The marriage between the appellant and the respondent was solemnized on 05.03.1991. After the marriage, the parties led their conjugal life in the village to which the appellant belongs and the respondent-wife persuaded the appellant to stay at Bhubaneswar, the place of her service as well as her parental place. The husband did not approve such proposal as a result of which dispute arose between the parties. It was alleged that the respondent-wife behaved with her husband and her in-laws in a cruel manner. She deserted the appellant by staying in the house of her father since 22.10.1991. The appellant and his parents tried their best to bring the respondent-wife to the marital home but all their efforts were in vain. Thereafter, on 26.05.1996, for the marriage ceremony of the appellant’s younger brother, the mother of the appellant also went to bring the respondent but the latter was not inclined to come but misbehaved and insulted her mother-in-law. The appellant’s father expired and for which also the father of the respondent was requested by the appellant to send the respondent to the house of the appellant since being the eldest daughter-in-law but then also the respondent did not come. Even after the death of the appellant’s father, the respondent in spite of several requests by the appellant and his family members did not join the company of the appellant. The respondent, furthermore, joined the Office of the Civil Supplies at Puri and in view of this, the respondent and her father always insisted the appellant to shift to Bhubaneswar. The appellant, in view of this, after about 7 years from the date of separation took redress of the Court. After leaving the appellant, the respondent also joined as a Junior Assistant in the office of the Civil Supply Corporation.

4. The respondent-wife denied the allegations made against her. She further stated in her written statement that due to maltreatment of the appellant’s mother and brother she came back to her parents house. She also stated that she was willing to live separately from her mother-in-law and brother-in-law. She, therefore, prayed for dismissal of the proceedings.

5. Both parties led oral evidence in support of their respective cases. The appellant was examined as P.W.1. During his evidence he corroborated the facts made in the original application for divorce. He has also stated that he is not willing to stay with the respondent as husband and wife after a long lapse of about 9 years and there is no chance of reunion between the parties. The respondent examined herself as O.P.W.1. She also filed bunch of documents. On the basis of the pleadings and evidence of the parties, the Courts below framed an issue whether there is just and sufficient cause to pass a decree of divorce against the respondent-wife on the grounds of cruelty and desertion or not.

6. The Family Court, Cuttack passed its judgment and allowed the petition filed by the appellant-herein under Section 13 of the Hindu Marriage Act and thereby granted decree of divorce. The Family Court, after having heard the parties and after perusing the evidence on record, held as follows:-

“When the wife-respondent declines to come to the marital home, undoubtedly it gave mental shock to the petitioner-husband, which knew no bounds. There is also no chance of reunion or reconciliation between the parties. The only course open to the Court is to pass a decree of divorce thereby to put an end to the litigation. The husband-petitioner has proved to the satisfaction of the Court that the wife-respondent is not only cruel, but also deserted him since more than seven y

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2005 Supreme(SC) 1074

Important pointWhere parties in divorce petition were living separately for 14 years and circum­stances indicated irretrievable breakdown of marriage and there were no efforts on part of opposite party to go back to her matri­monial home factum of separation and animus deserendi were established.

Cases Referred (7)

Important point
Where parties in divorce petition were living separately for 14 years and circumstances indicated irretrievable breakdown of marriage and there were no efforts on part of opposite party to go back to her matrimonial home factum of separation and animus deserendi were established.