Durga Prasanna Tripathy Vs Arundhati Tripathy ; Appeal (civil) 5184 of 2005

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Vinayak

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Oct 4, 2005, 7:38:36 AM10/4/05
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In brief :
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Wife REFUSED to live with In Laws; She wished to stay with the husband
only if he moved to a separate house

It was impractical for Husband to move to wife's place;

Case of cruelty and desertion claimed by husband; husband files for
divorce 7 years after desertion; wife claims dowry harassment 7 years
AFTER desertion (i.e.) after family court sends a notice!; Family court
awards divorce after reconciliation efforts fail; High C sets aside the
family court verdict; SC affirms divorce - desertion and irretrievable
breakdown; Permanent alimony raised from Rs. 50 000 to Rs 1 lac

============================ full decree ============================

CASE NO.: Appeal (civil) 5184 of 2005

PETITIONER: Durga Prasanna Tripathy

RESPONDENT: Arundhati Tripathy

DATE OF JUDGMENT: 23/08/2005

BENCH: Ruma Pal & Dr. AR. Lakshmanan

JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (Civil) No. 9794 OF 2004)
Dr. AR. Lakshmanan, J.

Leave granted.

This appeal is directed against the judgment dated 23.12.2003 passed by
the High Court of Orissa at Cuttack in Civil Appeal No. 10 of 2001
whereby the High Court allowing the appeal filed by the
respondent-herein/wife under Section 13(1) of the Hindu Marriage Act,
1955 on the ground of cruelty and desertion.

The marriage between the appellant and the respondent was solemnized on
05.03.1991. After the marriage, the parties led their conjugal life in
the village to which the appellant belongs and the respondent-wife
persuaded the appellant to stay at

Bhubaneswar, the place of her service as well as her parental place.
The husband did not approve such proposal as a result of which dispute
arose between the parties. It was alleged that the respondent-wife
behaved with her husband and her in-laws in a cruel manner. She
deserted the appellant by staying in the house of her father since
22.10.1991. The appellant and his parents tried their best to bring
the respondent-wife to the marital home but all their efforts were in
vain. Thereafter, on 26.05.1996, for the marriage ceremony of the
appellant's younger brother, the mother of the appellant also went to
bring the respondent but the latter was not inclined to come but
misbehaved and insulted her mother-in-law. The appellant's father
expired and for which also the father of the respondent was requested
by the appellant to send the respondent to the house of the appellant
since being the eldest daughter-in-law but then also the respondent did
not come. Even after the death of the appellant's father, the
respondent in spite of several requests by the appellant and his family
members did not join the company of the appellant. The respondent,
furthermore, joined the Office of the Civil Supplies at Puri and in
view of this, the respondent and her father always insisted the
appellant to shift to Bhubaneswar. The appellant, in view of this,
after about 7 years from the date of separation took redress of the
Court. After leaving the appellant, the respondent also joined as a
Junior Assistant in the office of the Civil Supply Corporation.

The respondent-wife denied the allegations made against her. She
further stated in her written statement that due to maltreatment of the
appellant's mother and brother she came back to her parents house. She
also stated that she was willing to live separately from her
mother-in-law and brother-in-law. She, therefore, prayed for dismissal
of the proceedings.

Both parties led oral evidence in support of their respective cases.
The appellant was examined as P.W.1. During his evidence he
corroborated the facts made in the original application for divorce.
He has also stated that he is not willing to stay with the respondent
as husband and wife after a long lapse of about 9 years and there is no
chance of reunion between the parties. The respondent examined herself
as O.P.W1. She also filed bunch of documents. On the basis of the
pleadings and evidence of the parties, the Courts below framed an issue
whether there is just and sufficient cause to pass a decree of divorce
against the respondent-wife on the grounds of cruelty and desertion or
not.

The Family Court, Cuttack passed its judgment and allowed the petition
filed by the appellant-herein under Section 13 of the Hindu Marriage
Act and thereby granted decree of divorce. The Family Court, after
having heard the parties and after perusing the evidence on record,
held as follows:-

"When the wife-respondent declines to come to the marital home,
undoubtedly it gave mental shock to the petitioner-husband, which knew
no bounds. There is also no chance of reunion or reconciliation
between the parties. The only course open to the Court is to pass a
decree of divorce thereby to put an end to the litigation. The
husband-petitioner has proved to the satisfaction of the Court that the
wife-respondent is not only cruel, but also deserted him since more
than seven years, which are good grounds for passing a decree of
divorce."

"However, as regards the alimony the learned Judge directed the
petitioner-husband to pay Rs.50,000/- to the wife-respondent towards
her permanent alimony, which was to be paid/deposited in the shape of
bank draft."

Aggrieved by the judgment of the Family Court, the respondent filed a
civil appeal before the High Court of Orissa under Section 19 of the
Family Courts Act, 1984.

The appellant contended before the High Court that while allowing the
proceedings under Section 13(1) of the Hindu Marriage Act on the ground
of cruelty and desertion, the Family Court dissolved the marriage
solemnized between the parties on 05.03.1991 and has directed the
appellant to pay a sum of Rs.50,000/- towards permanent alimony to the
respondent and pursuant to such direction, the appellant has deposited
the amount by way of a bank draft.

The High Court, vide its judgment dated 23.12.2003, set aside the
decree of divorce passed by the Family Court and allowed the appeal
filed by the respondent herein holding that the appellant had failed to
prove cruelty and desertion as against the respondent.

Aggrieved against the judgment of the High Court, the appellant
preferred the above Special Leave Petition.

We heard Mr. Ranjan Mukherjee, learned counsel appearing for the
appellant and Ms. S.S. Panicker, learned counsel appearing for the
respondent.

Mr. Ranjan Mukherjee, learned counsel for the appellant, submitted that
the High Court has failed to appreciate that the failure of the
respondent to substantiate the alleged reasons for staying away and
omission to demonstrate readiness and willingness to discharge
continuing obligation to return to matrimonial home taken together were
sufficient to establish animus deserendi, necessary to prove legal
desertion by the wife as per the principles laid down by this Court in
a number of cases. He would further submit that the appellant has
proved the desertion of the respondent-wife to the satisfaction of the
Courts below and after considering all the aspects and evidence led in
support of the desertion, the Family Court, after satisfying itself
that a reunion between the parties is not possible, has passed a
decree of divorce and in pursuance to the direction of the Family
Court, the appellant had deposited a sum of Rs.50,000/- by way of a
bank draft in favour of the respondent herein. It was further
submitted that the High Court has failed to appreciate that in the
present case both have been staying separately for about the last 14
years and in the meantime, the respondent has got a job at Bhubaneswar
and moreover the appellant and his family members had on quite a number
of times tried to get the respondent to her matrimonial home but of no
avail. It was further submitted that the High Court has failed to
appreciate that the allegations of dowry demand as made by the
respondent by the mother-in-law and the brother-in-law are concocted
afterthoughts of the respondent to defend her inexplicable stand which
is evident from the fact that though the respondent had left her
matrimonial home in the year 1991 itself she had only chosen to lodge a
complaint against her mother-in-law and brother-in-law before the
Mahila Commission only in the year 1988 i.e. after about 7 years.

Mr. Ranjan Mukherjee further submitted that the parties have been
living separately for almost 14 years which means that there is an
irretrievable breakdown of marriage and that because of such breakdown
of marriage, the marriage between the parties has been rendered a
complete deadwood. Mr. Ranjan Mukherjee, in support of his
submissions, cited the following judgments of this Court.

1. Anjana Kishore vs. Puneet Kishore, (2002) 10 SCC 194 (Three-Judge
Bench)

2. Swati Verma (Smt) vs. Rajan Verma and Others (2004) 1 SCC 123

3. Sanat Kumar Agarwal vs. Nandini Agarwal, (1990) 1 SCC 475

4. Adhyatma Bhattar Alwar vs. Adhyatma Bhattar Sri Devi, (2002) 1 SCC
308

5. G.V.N. Kameswara Rao vs. G. Jabilli, (2002) 2 SCC 296

Ms. S.S. Panicker, learned counsel for the respondent submitted that
the plea and evidence of the appellant before the Family Court was at
variance and that in absence of corroboration the allegation of the
appellant as to the desertion or cruelty by the respondent-wife could
not be proved by the appellant. It was submitted that the High Court
has rightly arrived at the conclusion that the order of the Family
Court was erroneous as the same was passed by misquoting the evidence
of the respondent. She would further submit that there is no error in
the impugned order of the High Court much less an error requiring
interference by this Court under Article 136 of the Constitution of
India. It was submitted that the order of the Family Court is prima
facie illegal, erroneous and that the Family Court failed to take into
account the evidence adduced by the parties in its proper perspective.
According to learned counsel for the respondent, a perusal of the
evidence would make it amply clear that the appellant in his evidence
has clearly admitted that he had himself led the respondent on
23.10.1991 in her father's house which was contrary to the statement in
the divorce petition wherein he had made a specific allegation that the
respondent had left the matrimonial home on her own accord. He had not
written any letter nor taken any relations to persuade the respondent
to lead marital life with him and that he was also not willing to stay
with the respondent and to continue the marital relations. Learned
counsel for the respondent invited our attention to the evidence led in
by both the parties and misquoting of the evidence by the Court. The
respondent, on the contrary, in her evidence had stated that after
23.10.1991 she had been to the matrimonial home with her father and
other relations but the appellant refused to accept her, so she had to
take shelter at her parental home, that the appellant was on visiting
terms to her parental home that she had led conjugal life with the
appellant till February, 1996, that even in the year 1997, the
respondent had stayed with the appellant at Jajpur in a rented
accommodation but was again forced to quit because of harassment by the
in-laws that she was also willing to stay with the appellant at Jaipur
and was interested in continuing their marital relations. Learned
counsel submitted that the Family Court has failed to take note that
the wife had categorically stated before the Conciliation Officer as
also in the evidence and pleadings before the Family Court that she was
interested and willing to live with the husband and that the appellant
on the other hand had clearly stated that he did not want to continue
the marital relations. Learned counsel further argued that the
appellant has also not been able to prove the allegations of cruelty
against the respondent and that the appellant had only alleged that the
conduct of the respondent of not returning to the matrimonial home, her
lack of cooperation in establishing normal cohabitation, her repeatedly
causing social embarrassment to the appellant by not performing the
last rites of the father-in-law and not participating in a marriage
ceremony of the appellant's brother and filing false complaint against
the mother-in-law and brother-in-law had caused mental depression,
anguish and frustration to the appellant amounts to mental cruelty.
She would also further submit that the allegations which are necessary
to constitute desertion are not present in the instant case. It was
also submitted that the appellant filed divorce petition in the year
1998 that is almost 7 years after the alleged desertion by the wife
from 23.10.1991 and that the appellant has not given any valid
explanation for the unexplained delay in filing the divorce petition.
Concluding her arguments, she submitted that the appellant was not
entitled to a decree of divorce on the ground of desertion and he and
his family members were themselves responsible for the respondent
quitting the matrimonial home and, therefore, the appellant cannot be
permitted to take advantage of his own wrong for obtaining a decree for
divorce in violation of the provisions of the Hindu Marriage Act. She
submitted that the High Court was, therefore, correct in setting right
an apparent error on the face of the order of the Family Court as the
order of the Family Court was passed without taking into the evidence
of the respondent and the appellant.

We have carefully gone through the pleadings, the evidence led and the
judgments cited by learned counsel for the appellant. Learned counsel
for the respondent has not cited any ruling in support of her
contentions.

This is a most unfortunate case where both the parties could not carry
on their marital ties beyond a period of 7 months of their marriage.
The marriage between the parties took place on 05.03.1991 and it is the
specific case of the appellant that the respondent deserted him on
22.10.1999 and never again returned to her matrimonial home. Today the
position is that the parties have been living separately for almost 14
years which means that there is an irretrievable breakdown of marriage
and that because of such breakdown of marriage the marriage between the
parties has been rendered a complete deadwood. Learned counsel for the
appellant argued that no useful purpose will be served by keeping such
a marriage alive on paper, which would only aggravate the agony of the
parties. Therefore, he would pray that in the fitness of things and in
the interest of justice, the marriage between the parties is forthwith
terminated by a decree of divorce. We have perused the orders passed
by the Family Court and also of the High Court. Both the Family Court
as well as the High Court made efforts to bring about a
reconciliation/rapprochement between the parties. The Family Court in
this regard gave a clear finding that in spite of good deal of
endeavour to effect a reconciliation the same could not be effected
because of the insistence of the respondent to remain separately from
her in-laws. It was totally an impracticable solution.

In this context, we may usefully refer to page 35 of the paper book
which reads as follows:

"Be that as it may, good deal of endeavour was made by the Conciliation
Cell attached to the Court as per Section 9 of the Family Courts Act
and as well as by this Court for a compromise between the parties, but
the respondent-wife insisted and wanted to remain separately from her
in-laws which was totally impracticable on the part of the
petitioner-husband."

This apart, since October, 1991 till date the respondent has not taken
any steps from her side to go back to her matrimonial home. The said
fact gets reflected from her own deposition before the Family Court
wherein she has deposed as under:-"On 23.10.1991, the petitioner left
me in the house of my father. I went to the marital home with my
father and other relations, but the petitioner created trouble and did
not accept me as his wife. So I came away to my father and has taken
shelter there."

"The petitioner left me in my father's house after the marriage on
23.10.1991. It is not a fact that I came away suo moto from the
marital home deserting the petitioner. Again I came and stayed in the
marital home from December, 1991 till February 1992 and thereafter came
to my father's house."

The Family Court has given cogent and convincing reasons for passing
the decree of divorce in favour of the appellant. Having been
convinced that there was no chance of reunion or reconciliation between
the parties, more so because of the complaint filed by the respondent
before the Mahila Commission, the Family Court with a view to put a
quietus to the litigation inter se and the bitterness between the
parties rightly passed the decree of divorce.

The Division Bench of the High Court by the impugned judgment has
reversed the finding of the Family Court. The learned Judges of the
High Court held against the appellant on two points, namely:-

(a) Misquoting of the evidence of the respondent, by the Family Court;
and

(b) Inconsistent plea of the appellant with regard to leaving the
matrimonial home by the respondent.

Both the aforesaid points taken into consideration by the learned
Judges of the High Court cannot, in our view, be construed as a finding
upon the merits of the case.

In our view that 14 years have elapsed since the appellant and the
respondent have been separated and there is no possibility of the
appellant and the respondent resuming the normal marital life even
though the respondent is willing to join her husband. There has been
an irretrievable breakdown of marriage between the appellant the
respondent. The respondent has also preferred to keep silent about her
absence during the death of her father-in-law and during the marriage
ceremony of her brother-in-law. The complaint before the Mahila
Commission does not implicate the appellant for dowry harassment though
the respondent in her evidence before the Family Court has alleged
dowry harassment by the appellant. It is pertinent to mention here
that a complaint before the Mahila Commission was lodged after 7 years
of the marriage alleging torture for dowry by the mother-in-law and
brother-in-law during the initial years of marriage. The said
complaint was filed in 1998 that is only after notice was issued by the
Family Court on 27.03.1997 on the application filed by the appellant
under Section 13 of the Hindu Marriage Act. The Family Court, on
examination of the evidence on record, and having observed the demeanor
of the witnesses concluded that the appellant had proved that the
respondent is not only cruel but also deserted him since more than 7
years. The desertion as on date is more than 14 years and, therefore,
in our view there has been an irretrievable breakdown of marriage
between the appellant and the respondent. Even the Conciliation
Officer before the Family Court gave its report that the respondent was
willing to live with the appellant on the condition that they lived
separately from his family. The respondent in her evidence had not
disputed the fact that attempts have been made by the appellant and his
family to bring her back to the matrimonial home for leading a conjugal
life with the appellant. Apart from that, relationship between the
appellant and the respondent have become strained over the years due to
the desertion of the appellant by the respondent for several years.
Under the circumstances, the appellant had proved before the Family
Court both the factum of separation as well as animus deserendi which
are the essential elements of desertion. The evidence adduced by the
respondent before the Family Court belies her stand taken by her before
the Family Court. Enough instances of cruelty meted out by the
respondent to the appellant were cited before the Family Court and the
Family Court being convinced granted the decree of divorce. The
harassment by the in-laws of the respondent was an after-thought since
the same was alleged after a gap of 7 years of marriage and desertion
by the respondent. The appellant having failed in his efforts to get
back the respondent to her matrimonial home and having faced the trauma
of performing the last rites of his deceased father without the
respondent and having faced the ill-treatment meted out by the
respondent to him and his family had, in our opinion, no other
efficacious remedy but to approach the Family Court for decree of
divorce.

In the following two cases, this Court has taken a consistent view that
where it is found that the marriage between the parties has
irretrievably broken down and has been rendered a dead wood, exigency
of the situation demands, the dissolution of such a marriage by a
decree of divorce to put an end to the agony and bitterness:

(a) Anjana Kishore vs. Puneet Kishore (2002) 10 SCC 194

(b) Swati Verma (Smt.) vs. Rajan Verma & Ors. (2004) 1 SCC 123

Likewise, in the following three cases, this Court has observed that
the question of desertion is a matter of inference to be drawn from the
facts and circumstances of each case and those facts have to be viewed
as to the purpose which is revealed by those facts or by conduct and
expression of intention, both anterior and subsequent to the actual act
of separation.

(a) Sanat Kumar Agarwal vs. Nandini Agarwal (1990) 1 SCC 475

(b) Adhyatma Bhattar Alwar vs. Adhyatma Bhattar Sri Devi (2002) 1 SCC
308

(c) G.V.N. Kameswara Rao vs. G. Jabilli (2002) 2 SCC 296

The submission made by Mr. Ranjan Mukherjee that the marriage between
the appellant and the respondent has for all practical purposes become
dead, that there can be no chance of being retrieved and that it was
better to bring the marriage to an end merits acceptance and force.

In Chanderkala Trivedi (Smt) vs Dr. S.P. Trivedi, (1993) 4 SCC 232,
which is an appeal before this Court against the grant of decree for
divorce by the Bombay High Court on the ground of cruelty. When leave
was granted, this Court observed that they are granting leave because
it appears to them that the marriage between the parties was in all
practical purposes dead and the enforced continuity of the marriage
will only mean that the parties will spend more years in bitterness
against each other. Since the husband was in a position to provide
reasonable maintenance or permanent alimony, this Court granted special
leave. At the time of final hearing, this Court deleted the findings
and has, however, decided not to interfere with the order passed by a
Division Bench of the Bombay High Court. The husband, on the
persuasion of this Court, agreed to provide a one bed-room flat to the
wife in a locality where it can be available between Rs. 3 and 4 lacs.
Therefore, while dismissing the appeal, this Court directed the husband
to purchase a flat for the wife and further deposit a sum of Rs. 2 lacs
by means of a demand draft in the name of the appellant with the Family
Court. In V. Bhagat vs. D. Bhagat (Mrs), (1994) 1 SCC 337 = AIR 1994 SC
710, this Court while allowing the marriage to dissolve on ground of
mental cruelty and in view of the irretrievable breakdown of marriage
and the peculiar circumstances of the case, held that the allegations
of adultery against the wife were not proved thereby vindicating her
honour and character. This Court while exploring the other alternative
observed that the divorce petition has been pending for more than 8
years and a good part of the lives of both the parties has been
consumed in this litigation and yet, the end is not in sight and that
the allegations made against each other in the petition and the counter
by the parties will go to show that living together is out of question
and rapproachment is not in the realm of possibility. This Court at
page 720 of AIR has observed thus:

"Before parting with this case, we think it necessary to append a
clarification. Merely because there are allegations and counter
allegations, a decree of divorce cannot follow. Nor is mere delay in
disposal of the divorce proceedings by itself a ground. There must be
really some extra-ordinary features to warrant grant of divorce on the
basis of pleading (and other admitted material) without a full trial.
Irretrievable breakdown of the marriage is not a ground by itself. But
while scrutinising the evidence on record to determine whether the
ground(s) alleged is/are made out and in determining the relief to be
granted, the said circumstance can certainly be borne in mind. The
unusual step as the one taken by us herein can be resorted to only to
clear up an insoluable mess, when the Court finds it in the interest of
both parties."


The decision reported in Romesh Chander vs. Savitri AIR 1995 SC 851 =
1995 AIR SCW 647 is yet another case where this Court in its powers
under Article 142 of the Constitution directed the dissolution of the
marriage subject to the transfer of the house of the husband in the
name of the wife. In that case, the parties had not enjoyed the
company of each other as husband and wife for 25 years, this is the
second round of litigation which routing through the trial court and
the High Court has reached the Supreme Court. The appeal was based on
cruelty. Both the Courts below have found that the allegation was not
proved and consequently it could not be made the basis for claiming
divorce. However, this Court after following the earlier decisions and
in exercise of its power under Article 142 of the Constitution directed
the marriage between the appellant and the respondent shall stand
dissolved subject to the appellant transferring the house in the name
of his wife within four months from the date of the order and the
dissolution shall come into effect when the house is transferred and
possession is handed over to the wife.

The facts and circumstances in the above three cases disclose that
reunion is impossible. Our case on hand is one such. It is not in
dispute that the appellant and the respondent are living away for the
last 14 years. It is also true that a good part of the lives of both
the parties has been consumed in this litigation. As observed by this
Court, the end is not in sight. The assertion of the wife through her
learned counsel at the time of hearing appears to be impractical. It
is also a matter of record that dislike for each other was burning hot.


Before parting with this case, we think it necessary to say the
following:

Marriages are made in heaven. Both parties have crossed the point of
no return. A workable solution is certainly not possible. Parties
cannot at this stage reconcile themselves and live together forgetting
their past as a bad dream. We, therefore, have no other option except
to allow the appeal and set aside the judgment of the High Court and
affirming the order of the Family Court granting decree for divorce.
The Family Court has directed the appellant to pay a sum of Rs.
50,000/-towards permanent alimony to the respondent and pursuant to
such direction the appellant had deposited the amount by way of bank
draft. Considering the status of parties and the economic condition of
the appellant who is facing criminal prosecution and out of job and
also considering the status of the wife who is employed, we feel that a
further sum of Rs. 1 lakh by way of permanent alimony would meet the
ends of justice. This shall be paid by the appellant within 3 months
from today by an account payee demand draft drawn in favour of the
respondent Arundhati Tripathy and the dissolution shall come into
effect when the demand draft is drawn and furnished to the respondent.

In the result, the Civil Appeal is allowed. There will be no order as
to costs.

Vinayak

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