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1989 Supreme(Bom) 293
IN THE HIGH COURT OF BOMBAY
Dharmadhikari C.S. Chaudhari M.G., JJ.
Smita Dilip Rane .... Appellant.
Versus
Dilip Dattaram Rane.... Respondent.
First Appeal No. 995 of 1985 with Civil Application No. 4526 of 1989, decided on 9-10-1989.
Advocates appeared :
M.A. Rane with S.B. Keluskar, for appellant.
N.H. Gursahani with G.S. Kulkarni, for respondent.
Headnote:Sections 13, 15, 23 (1) (a)-Dissolution of marriage-Claim of divorce on ground that marriage bas irretrievably broken-No such ground provided in Act-Act containing specific grounds for dissolution of marriage-New or additional ground cannot included by judicial construction of some other section of Act-Held, no decree of divorce can be passed on such ground of marriage having been irretrievably broken.
It is admitted position that as the law stood, on decree could have been passed on ground that the marriage has irretrievably broken. It is difficult to hold that the observations made by the Supreme Court in Smt. Saro) Ranis case 1984 AIR SC 1562 afforded a new ground for divorce which was not specifically provided by statute. As observed by the Supreme Court in Reynold Rajamani v. Union of India, 1982 AIR SC 1261, when the Act specifically sets forth the grounds on which a marriage may be dissolved, additional grounds cannot be included by the judicial construction of some other section unless that section plainly intends so.
In the instant case, the husband was definitely at fault. Admittedly an intimation was given to him about the intention of the wife to file the appeal. In fact the appeal was filed on August 19, 1985. The husband had also filed a caveat before this Court. In spite of this, without making any further enquiry in the matter, he remarried on October 21, 1985. Thus he has remarried with the full knowledge that the appeal was pending. It is also clear from the record that the appeal was filed within time, In this context Mr. Rane has rightly placed reliance upon the decisions of the Supreme Court in Lata d/o. Shrikrishna Kamat v. Viles Bhalchandra Udhoji, (1989) Mah LJ 616 (SC) and Tejinder Kaur v. Gurmit Singh, AIR 1988 SC 839. As held by the Supreme Court only because second marriage has taken place, the appeal does not become infructuous. Therefore, in courts view only because the second marriage had taken place, the husband is not entitled to a decree for divorce. He cannot be allowed to take advantage of his own wrong. It is well settled that what cannot be granted directly cannot be achieved indirectly. By distorting the passage and reading certain observations of the Supreme Court torn from context, a new ground cannot be made out for getting divorce, when law does not provide for it.
Section 23 (1) (a)-Divorce decree passed -Wife-preferred appeal-Subsequently husband remarried-Tenability of appeal.
Held, when husband remarried during pendency of appeal against divorce decree, decree cannot be maintained and tenability of appeal does not affect.
Only because the second marriage had taken place, the husband is not entitled to a decree for divorce. He cannot be allowed to take advantage of his own wrong. It is well settled that what cannot be achieved indirectly. By distorting the passage and reading certain observations of the Supreme Court torn from context, a new ground cannot be made out for getting divorce, when law does not provide for. Therefore, Court does not find any substance in this contention.
2. Being aggrieved by this judgment and decree, Smt. Smita Rane (wife) filed an appeal before this Court. Sharad Manohar, J., before whom the appeal was placed for hearing, fully heard the appeal. On going through the evidence on record, he came to the conclusion that there is hardly any acceptable evidence about the alleged acts of cruelty. He further found that assuming that there were any acts of cruelty, the said acts stand condoned, and therefore, the decree of divorce as passed by the Civil Court cannot be sustained. However, in view of the subsequent complication and relying upon the observations of the Supreme Court in (Smt. Saroj Rani v. Sudarshan Kumar Chandha)1, A.I.R. 1984 S.C. 1562, he thought it fit to refer the matter to the Division Bench and this is how this appeal has been placed before us.
3. It appears that after the decree was passed by the trial Court on 18-7-1985, the appellant-wife filed an appeal before the High Court on 19th August 1985. It is an admitted position that the appeal was filed within limitation, since, the appellant had applied for certified copy of the judgment and the same was not made available to her. The respondent-husband had also filed a Caveat through his trial Court Advocate in the High Court. In spite of this position, during the pendency of appeal, he married a second wife on 21st of October, 1985 Sharad Manohar, J., found that the said marriage cannot be saved from the prohibition contemplated by section 15 of the Hindu Marriage Act. However, according to him, in view of this subsequent event, the marriage has broken irretrievably and has gone on the rocks. Because of this second marriage, there is no likelihood of building a bridge between the two spouses. The relations between the two spouses have also become bitter in view of criminal proceedings ensuing on account of the second marriage. Sharad Manohar, J., also noted that the statutory law does not appear to be giving sufficient elbow room to this Court to grant divorce to the spouses or to either of them on the ground that the marriage has irretrievably broken. However, relying upon the observations made by the Supreme Court in Smt. Saroj Rani's case, he thought, if the marriage had gone on rocks not on account of the fault of either of the spouses, then a divorce could be granted by this Court. According to the learned Judge, the question being of great public importance, he thought it fit to refer the matter to the Division Bench.
4. We have heard Mr. Rane, as well as Mr. Gursahani, learned Counsel appearing for the parties. We have also gone through the evidence and material placed on record. It is quite clear from the findings recorded by the learned Single Judge Shri Sharad Manohar, J., that the husband has failed to prove the alleged acts of cruelty and even otherwise, the said acts of cruelty have been condoned by the husband, and therefore, on that ground a decree for divorce could not be granted. However, it is contended by Mr. Gursahani that the observations of the Supreme Court in Smt. Saroj Rani's case are the conclusions reached by the Supreme Court in that behalf and could be treated as a law declared by the Supreme Court under Article 141 of the Constitution of India. After the decree for divorce was passed, an intimation was given to the husband by the Counsel for the wife on 12th of August, 1985 that she intends to file an appeal. Thereafter no intimation was received by him and therefore he remarried on 21st October, 1985. Thus, he was not at fault. The situation is materially different today since the marriage has gone on roc
