Hon'ble Om Prakash-VII,J.
(Delivered by Hon'ble Rajes Kumar, J.) This is an appeal under Section 19 of the Family Court Act, 1984 against the order of the Principal Judge, Family Court, Jhansi dated 28.8.2009, by which an application under Section 13(1)(a) of the Hindu Marriage Act (hereinafter referred to as the "Act") for divorce filed by the appellant has been rejected.
The brief facts, of the present appeal, are that the appellant is a Medical Degree Holder, married with Sri Vijay Mehrotra on 25.2.2007 as per Hindu rituals. The divorce petition has been filed on the ground that the respondent demanded a sum of Rs.5,00,000/- and on 4.10.2008, the respondent and his mother beaten her at the residence of her parents and has threatened her that she may be allowed to live with them only if she would bring Rs.5,00,000/-. The Family Court has not disputed the plea taken by the appellant, but has inferred that such coercive step does not fall within purview of cruelty and on this basis it cannot be inferred that both the parties cannot live together and accordingly dismissed the petition.
Learned counsel for the appellant submitted that since 2008, she is living with her parents and not with the respondent. The relationship between the appellant and the respondent has reached to that stage where it is not possible to live together. Separation has created an unbridgeable distance between the two and virtually an irretrievable break-down of the marriage. He submitted that notices were sent to the respondent by ordinary post as well as by registered post and when respondent could not put appearance; by the order of the Court, a publication in the newspaper was made. The respondent has not put in appearance nor any counter affidavit has been filed. It also shows that the respondent is not interested to contest the matter and, therefore, it would be appropriate that the petition under Section 13(1)a) of the Act be allowed.
We have considered the submissions of learned counsel for the appellant.
Despite the notices being sent by ordinary post as well as by registered post and subsequently a publication was made in the newspaper "Dainik Jagarn" Kanpur Edition, which is widely circulated newspaper in Kanpur, the respondent has not put in appearance and has not filed any counter affidavit. In the circumstances, the Court has no option except to proceed ex-parte.
The Family Court has not disputed the allegations made by the appellant that the respondent has demanded a sum of Rs.5,00,000/- and has beaten her on 4.10.2008 and threatened that in case if she would not bring the demanded amount, she may not be allowed to live with him. Normally it is seen that husband seeks divorce. Present is the case where the wife has sought divorce. The appellant has one son with her. No wife normally thinks to break the marriage and his family unless some compelling situation leads to do so. Quarrel between husband and wife is the normal feature and does not fall within the ambit of cruelty, but if the thing goes beyond that and the situation leads to physical assault and reaches above tolerance limit where it becomes impossible to live together, it amounts to cruelty. Particularly, when both husband and wife are living separately since long and there is irretrievable break-down of the marriage, it would be in the interest of the parties to get themselves divorced.
The Apex Court in the case of Naveen Kohli Vs. Neelu Kohli, reported in (2006) 4 SCC 558 held as follows:
"Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into service, the divorce cannot be granted. Ultimately, it is for the legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955.
Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.
We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injuries to the interest of the parties. Where there has been a long period of continuance separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing ids gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality.
In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, 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, public interest and interest of all concerned lies in the recognition of the fact and to defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.
Consequently, we set aside the impugned judgment of the High Court and direct that the marriage between the parties should be dissolved according to the provisions of the Hindu Marriage Act, 1955. In the extraordinary facts and circumstances of the case, to resolve the problem in the interest of all concerned, while dissolving the marriage between the parties, we direct the appellant to pay Rs.25,00,000/- (Rupees twenty-five lakhs) to the respondent towards permanent maintenance to be paid within eight weeks. This amount would include Rs.5,00,000/- (Rupees five lakhs with interest) deposited by the appellant on the direction of the trial court. The respondent would be at liberty to withdraw this amount with interest. Therefore, now the appellant would pay only Rs.20,00,000/- (Rupees twenty lakhs) to the respondent within the stipulated period. In case the appellant fails to pay the amount as indicated above within the stipulated period, the direction given by us would be of no avail and the appeal shall stand dismissed. In awarding permanent maintenance we have taken into consideration the financial standing of the appellant."
Similar view has been reiterated by the Apex Court in a recent judgment in the case of K Srinivas Rao Vs. D A Deepa, reported in 2013 Law Suit (SC) 158, the Apex Court held as follows:
"11........................(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.
In our opinion, the High Court wrongly held that because the appellant-husband and the respondent-wife did not stay together there is no question of the parties causing cruelty to each other. Staying together under the same roof is not a pre-condition for mental cruelty. Spouse can cause mental cruelty by his or her conduct even while he or she is not staying under the same roof. In a given case, while staying away, a spouse can cause mental cruelty to the other spouse by sending vulgar and defamatory letters or notices of filing complaints containing indecent allegations or by initiating number of judicial proceedings making the other spouse's life miserable. This is that has happened in this case.It is also to be noted that the appellant-husband and the respondent-wife are staying apart from 27/4/1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Gosh, if we refuse to sever the tie, it may lead to mental cruelty.
It is also to be noted that the appellant-husband and the respondent-wife are staying apart from 27/4/1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Gosh, if we refuse to sever the tie, it may lead to mental cruelty.
In V. Bhagat this Court noted that divorce petition was pending for eight years and a good part of the lives of both the parties had been consumed in litigation, yet the end was not sight. The facts were such that there was no question of reunion, the marriage having irretrievably broken down. While dissolving the marriage on the ground of cruelty this Court observed that irretrievable breakdown of marriage is not a ground by itself, but, while scrutinizing the evidence on record to determine whether the grounds alleged are made out and in determining the relief to be granted the said circumstance can certainly be borne in mind. In Naveen Kohli, where husband and wife had been living separately for more than ten years and a large number of criminal proceedings had been initiated by the wife against the husband, this Court observed that the marriage had been wrecked beyond the hope of salvage and 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. It is important to note that in this case this Court made a recommendation to the Union of India that the Hindu Marriage Act, 1955 be amended to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce."
In the present case, the un-controverted allegation of the wife is that the respondent demanded a sum of Rs.5,00,000/- and beaten her on 4.10.2008 at her parents' residence and threatened that in case if Rs.5,00,000/- would not be given he may not keep her. The appellant is living separately at her parents' residence since 2008. Despite the notices being issued by ordinary post as well as by registered post, and the publication has been made in the newspaper, the respondent has not put in appearance and has not filed any counter affidavit. This shows that the respondent is not interested to contest the matter.
In view of the facts and circumstances, stated above and the submissions made by the learned counsel for the appellant that it is not possible for her to live with the husband; separation has created unbridgeable distance between the two and there is irretrievable break-down of marriage, we are of the view that case of divorce is made out and it would be appropriate that the suit filed by the appellant under Section 13(1)(a) of the Act be decreed.
The appeal is allowed. The impugned order dated 28.8.2009 passed by the Principal Judge, Family Court, Jhansi is set aside. The suit no. 418 of 2008 (Smt. Sunaina Mehrotra Vs. Sri Vijay Mehrotra) filed under Section 13(1)(a) of the Act is decreed and marriage dated 25.2.2007 stand dissolved.
Order Date :- .14.8.2014 OP