IMPORTANT POINT
Although marriage becoming irretrievable is not a ground for divorce, Supreme Court can dissolve a marriage on that ground under Article 142.

JUDGMENT :

M.R. SHAH, J.

Feeling aggrieved and dissatisfied with the impugned judgment and order dated 06.02.2012 passed in C.M.A. No. 4142 of 2003 by the High Court of Judicature Andhra Pradesh at Hyderabad, by which the High Court has dismissed the said appeal preferred by the appellant-husband and has confirmed the judgment and order passed by the learned Family Court refusing to pass a decree of divorce against the respondent-wife, the appellant-husband has preferred the present appeal.

2. That the marriage of the appellant and the respondent took place on 09.05.1993. That out of the said wedlock, the respondent gave birth to a male child on 29.08.1995. It appears that there were differences of opinion between the parties and according to the appellant-husband, cruelty was meted out to him. Up to 1997, many a times, the respondent-wife stayed at her parental house. The appellant-husband filed a divorce petition in the year 1999 being O.P. No. 157 of 1999 before the Family Court at Hyderabad. That the said petition was filed for a decree of divorce against the respondent-wife under Section 13(1) (ia) and (ib) of the Hindu Marriage Act, 1955. That the learned Family Court dismissed the said divorce petition by observing and holding that the appellant-husband has failed to prove the cruelty by the respondent-wife. The Family Court also refused to pass a decree of divorce on the ground of irretrievable breakdown of marriage.

2.1 Feeling aggrieved and dissatisfied with the judgment and order passed by the Family Court at Hyderabad dated 04.09.2003 in O.P. No. 157 of 1999 dismissing the divorce petition, the appellant-husband preferred an appeal before the High Court. Before the High Court also, the appellant-husband sought a decree of divorce on the ground of irretrievable breakdown of marriage. By the impugned judgment and order, the High Court has dismissed the said appeal. Hence, the appellant-husband is before this Court by way of the present appeal.

3. Shri Guru Krishna Kumar, learned Senior Advocate appearing on behalf of the appellant-husband has made strenuous efforts to upset the findings recorded by both the courts below on cruelty. In the alternative, it is vehemently submitted by Shri Guru Krishna Kumar, learned Senior Advocate appearing on behalf of the appellant-husband that both the appellant-husband and the respondent-wife are residing separately since last 22 years and that it is impossible to save the marriage and that there is no chance of marriage surviving and it is broken beyond repair. It is submitted that therefore as there is irretrievable breakdown of marriage it is in the fitness of the things to dissolve the marriage even in exercise of the powers under Article 142 of the Constitution of India and to do substantial justice to the parties.

3.1 In support of his alternative submission to dissolve the marriage on the ground of irretrievable breakdown of marriage, learned Senior Advocate has heavily relied upon the following decisions of this Court, Durga Prasad Tripathy v. Arundathi Tripathy (2005) 7 SCC 353; Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558; Sanghamitra Ghosh v. Kajal Kumar Ghosh (2007) 2 SCC 220; Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511; K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226; and Sukhendu Das v. Rita Mukherjee (2017) 9 SCC 632.

3.2 Shri Guru Krishna Kumar, learned Senior Advocate appearing on behalf of the appellant-husband has also stated at the Bar that the appellant-husband is ready and willing to pay a reasonable permanent alimony to the respondent-wife in case a decree of dissolution of marriage is granted to the appellant-husband.

4. The present appeal is vehemently opposed by Shri Jayant Kumar Mehta, learned Advocate appearing on behalf of the respondent-wife. He has vehemently submitted that this is not a fit case to dissolve the marriage between the appellant and the respondent on the ground of irretrievable breakdown of marriage, in exercise of the powers under Article 142 of