Important Point
Where the marriage between the parties was dead for all practical purposes and there was no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty.

Headnote:Constitution of India, 1950 – Article 142 – Soleminization between parties according to Hindu rites and customs on 22.5.1992 – Respondent wife, left her matrimonial home and went back to her parents sometime in 1994 and couple had been living separately ever since – Suit for dissolution of the marriage on grounds of cruelty and desertion under Section 13(1)(1a)(1b) of the Hindu Marriage Act filed by appellant-Trial court however did not grant a decree for divorce, but thought it appropriate to pass a decree of judicial separation instead – On appeal and cross appeal filed by parties, the High Court reversing judgment and decree of trial court dismissed the appeal filed by appellant and his prayer for dissolution of marriage and, on the other hand, allowed appeal filed by respondent-wife – Appeal thereagainst by appellant husband – Plea of appellant that even if he 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 Constitution – Held out of 16 years of marriage the appellant and respondent had been living separately for 14 years – Any further attempt at reconciliation held to be futile – Hence in the interest of both parties direction given to sever the matrimonial ties as the marriage had broken down irretrievably – Since the marriage between the parties was dead for all practical purposes and there was no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty- Direction given for dissolution of marriage of appellant and respondent in exercise of powers under Article 142 of Constitution – Appeal disposed of. (Paras 9 to 12)
       Facts of the Case :
       Issue in consideration in present case was as to whether a marriage which was otherwise dead emotionally and practically should be continued for name sake?
       Findings of the Court :
       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. Out of 16 years of marriage the appellant and respondent had been living separately for 14 years. Any further attempt at reconciliation was held to be futile. Hence in the interest of both parties direction was given to sever the matrimonial ties since the marriage had broken down irretrievably. Since the marriage between the parties was dead for all practical purposes and there was no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty. Direction was given for dissolution of marriage of appellant and respondent in exercise of powers under Article 142 of Constitution.
       Result : Appeal disposed of.

Judgment

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,1 (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 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 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 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 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 explored the possibility of an amicable solution, but such an attempt ended in failure on account of the rigid stance taken

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2008 Supreme(SC) 1034

2008(5) Supreme 198Supreme Court of indiaAltamas Kabir and Aftab Alam, JJ.Satish Sitole — AppellantversusSmt. Ganga — RespondentCivil Appeal No. 7567 of 2004Decided on : 10-07-08

Important PointWhere the marriage between the parties was dead for all practical purposes and there was no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty.

Cases Referred (3)

2008(5) Supreme 198
Supreme Court of india
Altamas Kabir and Aftab Alam, JJ.
Satish Sitole — Appellant
versus
Smt. Ganga — Respondent
Civil Appeal No. 7567 of 2004
Decided on : 10-07-08

Important Point
Where the marriage between the parties was dead for all practical purposes and there was no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty.