1996 JTR(SC) 716
1997 4 AICLR 622 ; 1996 AIR(SC) 3192 ; 2008 AIR(SC) 2943 ; 1996 AIR(SCW) 1933 ; 1997 2 AllCJ 1048 ; 2000 Supp AllCriC 691 ; 1996 CriLR 356 ; 1996 2 Crimes(SC) 86 ; 1997 1 HinduLR 446 ; 1996 5 JT 655 ; 1996 2 RCR(Cri) 614 ; 1996 3 Scale 293 ; 1996 8 SCC 90 ; 1996 KHC 1083 ; 1996 3 Supreme 493
1996(3) Supreme 493
SUPREME COURT OF INDIA
A.S. Anand and Fafzan Vddin, JJ,
Smt. Kanchan l3evi -Appellant
versus
Promod Kumar Mittal & Anr. -Respondents
Criminal Appeal No. 439 of 1996
(Arising out of SLP (Cri.) No. 464 of 1988)
Decided on 3-4-1996
IMPORTANT POINT
Where marriage was found to have broken down irretrievably the Supreme Court in exercise of powers under Article 142 of the Constitution granted decree of divorce.
Act
Referred
:CONSTITUTION OF INDIA : Art.142
CRIMINAL PROCEDURE CODE : S.127, S.125
HINDU MARRIAGE ACT : S.13(b)
A) The marriage, solemnized on 18.4.73, broke down irretrievably after the birth of four female children, leading to neglect, denial of maintenance, and eventual desertion. The wife obtained a decree of divorce exparte, which was later set aside, while the husband secured a dismissal of the matrimonial petition. The trial courts and the High Court exercised powers under Sections 125 and 127 Cr. P.C. for maintenance, revision, and enhancement, while Article 142 empowered this Court to dissolve the marriage and settle all pending disputes, including maintenance arrears, by a definitive decree. The welfare of the four daughters remained a continuing concern.
B) Legal principles: irretrievable breakdown of marriage as a ground for divorce; powers under Article 142 to grant decree of divorce and settle ancillary matters; maintenance obligations under Section 125 Cr. P.C.; dismissal of petitions in default and restoration under Section 127 Cr. P.C.; finality of settlement and disposal of all matrimonial and maintenance proceedings.
Facts of the case:
The parties married on 18.4.73. The wife was deserted after the birth of four daughters, denied maintenance, and obtained Rs. 500 per month by the trial court, later reduced to Rs. 440. The husband obtained an exparte divorce in 1980, set aside in 1983, and the wifes subsequent petitions led to multiple revisions and a compromise for Rs. 60,000. The wife alleged she was evicted again, and the courts passed orders on maintenance, revision, and Section 482 petitions until this Court intervened.
Findings of Court:
The marriage had irretrievably broken down with no possibility of reconciliation; the husband had maintained the four daughters; a settlement was reached for Rs. 60,000 within twelve weeks; all pending cases were to be terminated; and the wife was allowed reasonable opportunities to meet the children at the husbands residence.
Issues:
Whether the marriage should be dissolved on the ground of irretrievable breakdown; whether the settlement of Rs. 60,000 could dispose of all matrimonial and maintenance disputes; and whether the welfare of the minor children was adequately safeguarded.
Ratio Decidendi:
The Court invoked Article 142 to dissolve the marriage, recognizing irretrievable breakdown and the validity of the settlement, thereby disposing of all pending matrimonial and maintenance proceedings in a single decree while ensuring the childrens welfare.
Result:
The marriage is dissolved by a decree of divorce; the wife is entitled to Rs. 60,000 within twelve weeks; all pending cases are terminated; and the parties are directed to settle matters concerning the children as outlined.
A) The marriage, solemnized on 18.4.73, broke down irretrievably after the birth of four female children, leading to neglect, denial of maintenance, and eventual desertion. The wife obtained a decree of divorce exparte, which was later set aside, while the husband secured a dismissal of the matrimonial petition. The trial courts and the High Court exercised powers under Sections 125 and 127 Cr. P.C. for maintenance, revision, and enhancement, while Article 142 empowered this Court to dissolve the marriage and settle all pending disputes, including maintenance arrears, by a definitive decree. The welfare of the four daughters remained a continuing concern.
B) Legal principles: irretrievable breakdown of marriage as a ground for divorce; powers under Article 142 to grant decree of divorce and settle ancillary matters; maintenance obligations under Section 125 Cr. P.C.; dismissal of petitions in default and restoration under Section 127 Cr. P.C.; finality of settlement and disposal of all matrimonial and maintenance proceedings.
Facts of the case:
The parties married on 18.4.73. The wife was deserted after the birth of four daughters, denied maintenance, and obtained Rs. 500 per month by the trial court, later reduced to Rs. 440. The husband obtained an exparte divorce in 1980, set aside in 1983, and the wifes subsequent petitions led to multiple revisions and a compromise for Rs. 60,000. The wife alleged she was evicted again, and the courts passed orders on maintenance, revision, and Section 482 petitions until this Court intervened.
Findings of Court:
The marriage had irretrievably broken down with no possibility of reconciliation; the husband had maintained the four daughters; a settlement was reached for Rs. 60,000 within twelve weeks; all pending cases were to be terminated; and the wife was allowed reasonable opportunities to meet the children at the husbands residence.
Issues:
Whether the marriage should be dissolved on the ground of irretrievable breakdown; whether the settlement of Rs. 60,000 could dispose of all matrimonial and maintenance disputes; and whether the welfare of the minor children was adequately safeguarded.
Ratio Decidendi:
The Court invoked Article 142 to dissolve the marriage, recognizing irretrievable breakdown and the validity of the settlement, thereby disposing of all pending matrimonial and maintenance proceedings in a single decree while ensuring the childrens welfare.
Result:
The marriage is dissolved by a decree of divorce; the wife is entitled to Rs. 60,000 within twelve weeks; all pending cases are terminated; and the parties are directed to settle matters concerning the children as outlined.
JUDGMENT
Dr. Anand, J.-Leave granted.
2. The marriage between the parties was solemnised on 18.4.73. According to the appellant she was thrown out of the matrimonial home, after she gave birth to four female children one after the other which annoyed her in-laws. Thereafter the respondent husband neglected and refused to maintain her which compelled her to file an application for maintenance under Section 125 Cr. P.C. The trial court allowed the application and granted her Rs. 500/- p.m. as maintenance; In appeal, the order of maintenance was maintained but the amount was reduced to Rs. 440/- per month. The respondent moved the High Court in revision and on 6.10.82 the High Court remanded the matter for rehearing. During the pendency of the application in the trial court, it was dismissed in default and on appellant s moving an application for restoration, the same was restored by the trial court. A revision petition filed by the respondent against the order of restoration was dismissed. Subsequently, the High Court also dismissed an application filed under Section 482 Cr. P.C. by the husband on 16.1.1984. While the matters rested thus it transpires from the record that the respondent husband had also filed a petition for divorce and obtained an ex-parte decree of divorce on 22.10.80. On a petition filed by the appellant, the ex-parte decree of divorce was set aside on 9.9.83 and subsequently the petition for divorce filed by the respondent was finally dismissed on 13.10.83. There is variance between the parties as to whether the matter is pending in appeal at the instance of the husband. No payment, in the case under Section 125 Cr. P.C. was ever made to the appellant thereby compelling the wife to seek execution of the order. The respondent thereupon brought the appellant back to his house. It appears that a compromise was then arrived at between the parties with regard to the order of maintenance made under Section 125 Cr. P.C. and as per the terms of the compromise, the appellant agreed to accept Rs. 200/- per month as maintenance arrears with effect from 10.2.1984 as against Rs.440/- p.m. awarded in her favour. The appellant, alleges that thereafter she was once again thrown out of the matrimonial home by the respondent husband after-he had made her to sign the compromise deed. She filed an application under Section 127 Cr. P.C. on 10.12.84. The application was dismissed in default on 11.8.86 but on a petition filed by the appellant it was restored by the trial court on 29.8.86. A revision filed by the respondent before the Sessions Judge was dismissed on 9.4.87. An interim order came to be made by the trial court on 24.4.87 enhancing the maintenance amount by Rs, 150- per month. The appellant moved the High Court through a petition under Section 482 Cr. P.C. and on 4.11.87 the .High Court quashed the order of restoration, the order of the Sessions Judge dismissing the revision filed by the respondent as also the order of enhancement of maintenance granted in favour of the appellant. This appeal calls in question the said order of the High Court dated 4.11.87
3. During the pendency of the proceedings in this Court, an effort was made for reconciliation between the parties. It was admitted by learned- counsel for the parties that the parties have not been living together for the last more than one decade as husband and wife and their relationship was totally strained and bitter against each other. On 7.12.95 it appeared to us that there was no possibility of any reconciliation between the parties and that the marriage between them had irretrievably broken down. The respondent through his learned counsel categorically submitted that there was no possibility of the parties remaining together as husband and wife and that position was not disputed by learned counsel appearing for the appellant.
4. On 7.12.9&, during the course of arguments in the Court, the appellant made the following statement in this Court :
"1 have no objection to -a decree of divorce being made because my marriage with the respondent has irretrievably broken down provided, however. the respondent pays a sum of Rs.60000/- (rupees sixty thousand) within twelve weeks from today. My agreement to divorce- by mutual consent is subject to that condition and in the event that amount is not paid, I shall not be bound by this statement, as it is without prejudice to my other rights in the case. On the amount being paid, the dispute arising out of the petition under Section 125 Cr. P.C. shall also stand settled."
The respondent husband also made a statement to the following effect :
"Petitioner Smt. Kanchan Devi is my wife. The relations between her and myself as husband and wife have irretrievably broken down. I have heard her statement made in the court today. I agree -with her statement and shall pay a sum of Rs. 60000/- {rupees sixty thousand) within twelve weeks from today to her. That amount shall be in settlement of all the disputes arising out of the maintenance proceedings under Section 125 Cr. P.C. as well as for grant of divorce on mutual consent. On the payment of the amount to her, the parties should withdraw all the pending cases against each other arising out of matrimonial proceedings or the maintenance proceedings."
5. On 18.3.1996 learned counsel for the parties submitted that a settlement had been arrived at and the terms of the memorandum of settlements reading thus was filed in the court on 18.3.96 :
"1. We agree that our marriage be set aside by a decree of divorce on payment by the respondent of a sum of Rs. 60000/-. Disputes arising out of petition under Section 125 Cr. P.C. also stand settled.
2. Parties agree that alt pending cases against each other arising out of matrimonial proceedings or maintenance proceedings stand terminated."
6. In view of the peculiar facts and circumstances of the case and being satisfied that the marriage between the appellant and the respondent has irretrievably broken down and that there is no possibility of reconciliation, we in exercise of our powers under Article 142 of the Constitution of India hereby direct that the marriage between the appellant and the respondent shall stand dissolved by a decree of divorce. All pending cases arising out of the matrimonial proceedings and the maintenance proceedings under Section 125 Cr. P.C. pending between the parties shall stand disposed of and consigned to the records in the respective courts on being moved by either of the parties by providing a copy of this order, which has settled alt those disputes in terms of the settlement. This appeal is disposed of the above terms. No costs.
7. Before parting .with the judgment we wish to record, as admitted before us, that all the four daughters of the parties are living with the husband and he has been maintaining them ever since. He shall continue to do so and the welfare of. the children shall be properly taken care of. A reasonable opportunity to the wife to meet the children, if she express any such desire in writing to the husband, shall be provided but the said meetings shall take place at the residence of the husband and that too only on prior arrangements.
Appeal disposed of in terms of settlement.
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Parallel Citations of other Journals :
Smt. Kanchan Devi v. Promod Kumar Mittal & Anr., 1996(3) Supreme 493
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00031