IMPORTANT POINT
Where marriage was found to have irretrievably broken down, to do complete justice in such matters, Supreme Court could exercise its extra-ordinary jurisdiction under Article 142 of the Constitution of India.

Headnote:Hindu Marriage Act, 1955 - Section 13B - Divorce by Mutual Consent - Constitution of India - Article 142 - Transfer petition by wife for transfer of matrimonial suit u/s 9 of Hindu Marriage Act filed by husband-respondent from Court of District Judge ‘Barasat’ to Court at Bangalore where she was employed - Parties failing to sort out differences despite persuasion of Court - Marriage had broken irretrievably and reconciliation was out of question - Compromise terms filed by parties - Prayer for exercise of jurisdiction under Article 142 of the Constitution - Fit case to exercise that jurisdiction - All the cases between parties directed to be disposed of in view of settlement between parties.
       Held : In order to do complete justice in the matrimonial matters, this Court has been less hesitant in exercising its extra-ordinary jurisdiction under Article 142 of the Constitution. To illustrate this fact, reference of some decided matrimonial cases is given hereinbelow. In Swati Verma v. Rajan Verma & Others reported in (2004) 1 SCC 123, this Court came to a definite conclusion that the marriage between the parties has irretrievably broken down and with a view to restore good relationship and to put quietus to all litigations between the parties and not to leave any room for future litigation, so that they may live peacefully hereafter, this Court granted a decree of divorce by mutual consent while exercising its power under Article 142 of the Constitution. (Paras 13 and 14)
       In the instant case, we are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, therefore, the public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto as observed in Naveen Kohlis case (supra). (Para 18)
       In view of peculiar facts and circumstances of this case, we consider it appropriate to exercise the jurisdiction of this Court under Article 142 of the Constitution. (Para 19)
       In order to ensure that the parties may live peacefully in future, it has become imperative that all the cases pending between the parties are directed to be disposed of. According to our considered view, unless all the pending cases are disposed of and we put a quietus to litigation between the parties, it is unlikely that they would live happily and peacefully in future. In our view, this will not only help the parties, but it would be conducive in the interest of the minor son of the parties. (Para 20)
       On consideration of the totality of the facts and circumstances of the case, we deem it appropriate to pass the order in the following terms: (Para 21)
       a)The parties are directed to strictly adhere to the Terms of Compromise filed before this Court and also the orders and directions passed by this Court;
       b)We direct that the cases pending between the parties, as enumerated in the preceding paragraphs, are disposed of in view of the settlement between the parties; and
       c)All pending cases arising out of the matrimonial proceedings including the case of restitution of conjugal rights and guardianship case between the parties shall stand disposed of and consigned to the records in the respective courts on being moved by either of the parties by providing a copy of this order, which has settled all those disputes in terms of the settlement.
       These transfer petitions are accordingly disposed of.(Para 22)

JUDGMENT

Dalveer Bhandari, J. - The marriage of the petitioner was solemnized on 8.11.1999 with the respondent as per Hindu rites and customs and was duly registered with the Registrar of Marriage. The parties have closely known each other before marriage and the marriage was solemnized according to the wishes of the petitioner and the respondent.

2. A male child was born out of the wedlock but, unfortunately, the parties did not have a smooth marital life. According to the allegations of the petitioner, Sanghamitra Ghosh, she was physically and mentally tortured by the respondent and his parents. According to her, the degree of torture increased day by day and eventually on 14.1.2001 she was driven out of the marital home along with her minor child. Thereafter, the petitioner moved to her parents and started with them from 15.1.2001. The respondent never cared to inquire about the petitioner and her child and has never sent any money either for the maintenance of the petitioner or her child.

3. In these circumstances, she was forced to file a criminal complaint on 4.8.2002 under Section 498A of the Indian Penal Code read with Sections 3 & 4 of Dowry Prohibition Act.

4. According to the version of the petitioner, she was totally dependant on her father, who himself was very old and was suffering from cancer and a considerable amount had to be spent for his treatment. In these circumstances, the petitioner became an additional burden on her parents. In order to maintain herself and her child, she took up a petty job in the ICICI bank on a meagre salary. The petitioner now has been transferred to Bangalore, as a result of which it had become extremely difficult for her to attend the court proceedings in West Bengal. It is very expensive and time consuming. In these circumstances, the petitioner had filed a transfer petition praying that matrimonial suit no.437 of 2002 titled as "Kajal Kumar Ghosh versus Sanghamitra Ghosh" filed by the respondent-husband under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights and pending in the court of District Judge, Barasat be transferred to the court of competent jurisdiction at Bangalore.

5. This Court on 26.3.2004 issued a show-cause notice on the transfer petition. Reply to the transfer petition was filed by the respondent. The datewise sequence of events given by the respondent are contrary to what had been averred by the petitioner. According to the respondent, the petitioner was not driven out of the matrimonial home. In fact, she had walked out of the matrimonial home. The respondent further submitted that their marriage broke down due to the basic difference in their social status, educational and cultural background, lack of tolerance and inability to adopt and adjust to a life of a middle class family.

6. During the pendency of this petition, the parties have explored the possibility of an amicable settlement. The matter was adjourned from time to time to give the parties adequate time to mutually and amicably settle their differences. The parties, despite persuasion of the Court, have not been able to sort out their differences and decided to live separately. According to the parties, their marriage has been irretrievably broken down and reconciliation is out of question.

7. Learned counsel for the parties have prayed that in the peculiar facts and circumstances of this case, this Court may grant a decree of divorce by mutual consent. On 15.9.2006, the parties have jointly filed a petition where they have spelt out the Terms of Compromise. The Terms of Compromise read as under:

"1.Shri Kajal Ghosh/husband agrees to pay a sum of Rs.10 lacs (Rupees ten lacs) as full and final settlement to his wife Smt. Sanghamitra Ghosh. This amount shall be paid by Shri Kajal Kumar Ghosh in the Court by way of Demand Draft in favour of the petitioner.

2.Both the parties further agree to let the mother/Smt. Sanghamitra Ghosh have the permanent custody of the minor

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2006 Supreme(SC) 1144

IMPORTANT POINTWhere marriage was found to have irretrievably broken down, to do complete justice in such matters, Supreme Court could exercise its extra-ordinary jurisdiction under Article 142 of the Constitution of India.

Cases Referred (7)

IMPORTANT POINT
Where marriage was found to have irretrievably broken down, to do complete justice in such matters, Supreme Court could exercise its extra-ordinary jurisdiction under Article 142 of the Constitution of India.