P.Raghu vs P.Sukanya

This Family Court Appeal, under Section 19(1) of the Family Courts Act, 1984, is filed by the appellant/husband, challenging the order, dated 18.03.2008, passed in FCOP No.218 of 2006 by the Judge, Family Court, Secunderabad, whereby, the petition filed by the appellant/husband under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955, seeking divorce against the respondent/wife, was dismissed.

We have heard the submissions of Sri T.Natraj, learned counsel for the appellant/husband, Sri K.S.Murthy, learned counsel for the respondent/wife and perused the record.

Learned counsel for the appellant/husband would contend that the respondent/wife had deserted the appellant/husband. The respondent/wife left the matrimonial home on 25.11.2003 to deliver a baby and she never returned.. Though a settlement was entered into in between the parties to the litigation under Ex.B1 and the appellant/husband had conceded to abide by the conditions stipulated therein, the respondent/wife did not join the company of appellant/husband. The respondent/wife had been continuously living at her parents’ house since 25.11.2003. Till date, no efforts are made by both the parties to live together. There are no chances of reunion between the parties to the litigation. The marriage between the parties has broken down irretrievably. There is substantial evidence on record to prove desertion on the part of the respondent/wife and ultimately prayed to set aside the order under challenge and allow the appeal by dissolving the marriage in between the parties to the litigation.

On the other hand, learned counsel for the respondent/wife would contend that the respondent/wife is willing to join the company of the appellant/husband. There is no desertion on the part of the respondent/wife as alleged. The Court below, having examined the oral and documentary evidence adduced by both sides, was justified in dismissing the subject FCOP No.218 of 2006 seeking divorce on the ground of desertion. In fact, the conduct of the appellant/husband had driven away the respondent/wife from the matrimonial home. There are no circumstances to interfere with the impugned order, dated 18.03.2008, and ultimately prayed to dismiss the appeal.

In view of the above rival submissions, the points that arise for determination in this appeal are as follows:

Whether the respondent/wife had deserted the appellant/husband?

Whether the impugned order, dated 18.03.2008, passed in FCOP No.218 of 2006 by the Judge, Family Court, Secunderabad, refusing to grant a decree of divorce to the appellant/husband under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955, is liable to be set aside?

POINTS:-

As per the oral and documentary evidence placed on record, the marriage between the appellant/husband and the respondent/wife was performed on 07.04.2002 as per Hindu rites and customs. The couple lived together for about one and half years and thereafter, both of them are living separately from 25.11.2003. The case of the appellant/husband is that the respondent/wife went to her parents’ house for delivering a baby and never returned; while leaving the matrimonial home, the respondent/wife stated that she will go for divorce; due to the dictatorial attitude of respondent/wife, differences cropped up between the couple; though the respondent/wife delivered a child on 26.03.2004, she and her parents did not allow the appellant/husband to see the newly born child. The appellant/husband had also made several other allegations against the respondent/wife.

The case of respondent/wife is that the appellant/husband did not allow her to discharge duties as wife and daughter-in-law. At the instigation of his parents and sister, the appellant/husband harassed the respondent/wife to bring dowry, either in cash or kind. The appellant/husband was behaving in a sadist, desperate and unruly manner and started casting aspersions on the chastity of the respondent/wife and paternity of the newly born child. Apart from the above, several other allegations are also made.

It is also apt to observe that there was a settlement in between the parties to the litigation before the elders under Ex.B1 as regards their conjugal life. The parents of the respondent/wife are signatories to that document. However, the Court below did not consider the same since the appellant/husband has not signed on it. However, there are certain conditions in the said document which both the parties were to comply and live together. The evidence of RW.2 reveals that the appellant/husband has put some conditions to join the respondent/wife. The respondent/wife, in her cross-examination, expressed her unwillingness to join the appellant/husband.

Be that as it may, both the learned counsel on record fairly conceded that the marriage in between the appellant/husband and the respondent/wife has broken down beyond repair. As seen from the material placed on record, the appellant/husband and the respondent/wife have parted their ways and living separately since 25.11.2003.

Irretrievable breakdown of marriage by itself is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the Courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others, necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the Court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up, there is hardly any chance of their springing back to life on account of artificial reunion created by the Court’s decree.

It is settled law that this Court grants a decree of divorce only in those situations in which the Court is convinced beyond any doubt that there is absolutely no chance of the marriage surviving and it is broken beyond repair. Even if there are minute chances of survival of marriage, it is not for the Court to use its power to dissolve the marriage as having broken down irretrievably.

In Naveen Kohli Vs. Neelu Kohli (2006) 4 SCC 558, a three-Judge Bench of the Hon’ble Apex Court observed as follows:

“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 injurious to the interests of the parties. Where there has been a long period of continuous 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.”

The Hon’ble Apex Court, in a catena of judgments, has exercised its inherent powers under Article 142 of the Constitution of India for dissolution of a marriage where the Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted.

In the instant case, in view of the facts and circumstances of the case, we are convinced beyond any doubt that the marriage between the parties to the litigation is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably and as such, it necessitates severance of matiral tie between the parties on the ground of irretrievable break down of marriage.

Accordingly, this Family Court Appeal is allowed by setting aside the order, dated 18.03.2008, passed in FCOP No.218 of 2006 by the Judge, Family Court, Secunderabad. The marriage performed in between the appellant/husband and the respondent/wife on 07.04.2002 stands dissolved by a decree of divorce. Needless to state that the respondent/wife is entitled to seek permanent alimony or monthly maintenance, as the case may be, from the appellant/husband, before the appropriate Court.

Miscellaneous petitions, if any, pending in this appeal, shall stand closed. There shall be no order as to costs.