1995 JTR(SC) 61
1995 AIR(SC) 851 ; 1995 AIR(SCW) 647 ; 1995 25 AllLR 536 ; 1995 1 APLJ 48 ; 1995 1 BLJR 403 ; 1995 1 CivCC 347 ; 1995 1 CurCC(SC) 97 ; 1995 2 CurLJ 42 ; 1995 1 DMC 231 ; 1995 1 DMC 514 ; 1995 1 HinduLR 325 ; 1995 1 JT 362 ; 1995 1 PLJR(SC) 85 ; 1995 2 RRR 124 ; 1995 1 Scale 177 ; 1995 2 SCC 7 ; 1995 1 SCR 212 ; 1995 1 UJ 434 ; 1995 WBLR 35 ; 1995 KHC 772
R.M. SAHAI AND S.B. MAJMUDAR, JJ.
Civil Appeal No. 714 of 1995 (arising out of S.L.P. (C) No. 20435 of 1994), D/- 13-1-1995.
Romesh Chander, Appellant
Versus
Smt. Savitri, Respondent.
Act Referred :HINDU MARRIAGE ACT : S.13(1)(i)(a)
(A) The Hindu Marriage Act, 1955, Section 13(1)(i)(a) provides the statutory basis for seeking dissolution of marriage on the ground of cruelty, encompassing both mental and physical forms of cruelty that entitle a party to claim divorce. In the present appeal, this provision is invoked in the context of a marriage that has emotionally and practically died, where the court examines whether the conduct of one party has inflicted such cruelty that the continuation of the marital bond is unjust and oppressive, thereby warranting judicial dissolution under the constitutional framework of Article 142 read with the statute. The section acts as the enabling provision for divorce on cruelty, and the court evaluates the specific allegations and evidence to determine if the threshold of cruelty is met, considering the overall circumstances including the absence of mutual duty and responsibility, the impact on the family unit, and the possibility of restitution.
(B) Key legal principles include that cruelty can be mental or physical, and must be so grave that it endangers the life, limb, or health of the aggrieved party, or would be intolerable and burdensome to live with. A marriage that is dead and has no chance of retrieval may be dissolved, and the court may exercise powers under Article 142 to provide complete justice, including ancillary relief such as transfer of property. The conduct of the parties, including any desertion or cruelty, and the evidentiary burden of proving such conduct, are critical in determining the grant of divorce.
Facts of the case:
The appellant and the respondent have been married for twenty-five years, during which they have lived separately and without marital harmony. This is the second litigation between the parties, with an earlier appeal on desertion decided against the appellant. The current appeal is based on cruelty, with allegations that the appellant misbehaved and mixed with undesirable individuals, but no evidence was provided to substantiate cruelty. The marriage produced a child born out of wedlock in 1968, who is now an adult and in service. The appellant has expressed remorse and offered to transfer the only house owned by him to the respondent.
Findings of Court:
The courts below found that while the wife made serious allegations against the appellant's character, no evidence was led to prove cruelty, and thus it could not form the basis for divorce in the earlier proceedings. However, in this appeal, the court observed that the marriage is dead both emotionally and practically, with no chance of retrieval, and the continuance of the marital alliance for name-sake is prolonging agony. The husband has not been dutiful or responsible towards his wife or his child, and the maintenance of the marriage would constitute cruelty, especially given that the child is grown and independent. The court also noted the appellant's remorse and willingness to compensate by transferring the house to his wife.
Issues:
The primary issue is whether a marriage that is dead emotionally and practically can be dissolved on the ground of cruelty when there is no evidence of actionable cruelty in the legal sense, and whether the court can exercise powers under Article 142 to dissolve the marriage and order ancillary relief such as transfer of property.
Ratio Decidendi:
The court held that a marriage which is dead and has no reasonable chance of retrieval should be dissolved to end the prolonged agony and affliction, and that the continuance of such a marriage amounts to cruelty. The exercise of power under Article 142 enables the court to grant complete justice, including dissolution of marriage and an order for the transfer of the husband's sole house to the wife, subject to compliance within a specified period.
Result:
The appeal is allowed, the marriage is dissolved with effect from the date of transfer of the house, and the appellant is directed to transfer the house to the respondent within four months.
(A) The Hindu Marriage Act, 1955, Section 13(1)(i)(a) provides the statutory basis for seeking dissolution of marriage on the ground of cruelty, encompassing both mental and physical forms of cruelty that entitle a party to claim divorce. In the present appeal, this provision is invoked in the context of a marriage that has emotionally and practically died, where the court examines whether the conduct of one party has inflicted such cruelty that the continuation of the marital bond is unjust and oppressive, thereby warranting judicial dissolution under the constitutional framework of Article 142 read with the statute. The section acts as the enabling provision for divorce on cruelty, and the court evaluates the specific allegations and evidence to determine if the threshold of cruelty is met, considering the overall circumstances including the absence of mutual duty and responsibility, the impact on the family unit, and the possibility of restitution.
(B) Key legal principles include that cruelty can be mental or physical, and must be so grave that it endangers the life, limb, or health of the aggrieved party, or would be intolerable and burdensome to live with. A marriage that is dead and has no chance of retrieval may be dissolved, and the court may exercise powers under Article 142 to provide complete justice, including ancillary relief such as transfer of property. The conduct of the parties, including any desertion or cruelty, and the evidentiary burden of proving such conduct, are critical in determining the grant of divorce.
Facts of the case:
The appellant and the respondent have been married for twenty-five years, during which they have lived separately and without marital harmony. This is the second litigation between the parties, with an earlier appeal on desertion decided against the appellant. The current appeal is based on cruelty, with allegations that the appellant misbehaved and mixed with undesirable individuals, but no evidence was provided to substantiate cruelty. The marriage produced a child born out of wedlock in 1968, who is now an adult and in service. The appellant has expressed remorse and offered to transfer the only house owned by him to the respondent.
Findings of Court:
The courts below found that while the wife made serious allegations against the appellant's character, no evidence was led to prove cruelty, and thus it could not form the basis for divorce in the earlier proceedings. However, in this appeal, the court observed that the marriage is dead both emotionally and practically, with no chance of retrieval, and the continuance of the marital alliance for name-sake is prolonging agony. The husband has not been dutiful or responsible towards his wife or his child, and the maintenance of the marriage would constitute cruelty, especially given that the child is grown and independent. The court also noted the appellant's remorse and willingness to compensate by transferring the house to his wife.
Issues:
The primary issue is whether a marriage that is dead emotionally and practically can be dissolved on the ground of cruelty when there is no evidence of actionable cruelty in the legal sense, and whether the court can exercise powers under Article 142 to dissolve the marriage and order ancillary relief such as transfer of property.
Ratio Decidendi:
The court held that a marriage which is dead and has no reasonable chance of retrieval should be dissolved to end the prolonged agony and affliction, and that the continuance of such a marriage amounts to cruelty. The exercise of power under Article 142 enables the court to grant complete justice, including dissolution of marriage and an order for the transfer of the husband's sole house to the wife, subject to compliance within a specified period.
Result:
The appeal is allowed, the marriage is dissolved with effect from the date of transfer of the house, and the appellant is directed to transfer the house to the respondent within four months.
Baldev Atreya, D.V.Sehgal, M.S.Gupta, PRATIBHA JAIN, S.B.SANYAL
Judgement
R. M. SAHAI, J.:- Should a marriage which is otherwise dead emotionally and practically be continued for name-sake is the issue for consideration in this appeal.
2. Twenty five years have elapsed since the appellant, a sanitary inspector, and the respondent, his wife a teacher, have enjoyed the company of each other as husband and wife. Within these 25 years this is the second round of litigation which routing through the Trial Court and the High Court has reached this Court. The earlier one founded on desertion was decided by this Court against the husband on 23rd April 1980. This appeal is based on cruelty. Both the Courts below have found that even though the wife had cast serious aspersions on the character of the appellant in the written statement filed by her earlier and alleged that he was in the habit of mixing with undesirable girls in the presence of respondent yet since neither any evidence was led nor it was proved consequently it could not be made basis for claiming divorce on cruelty.
3. In V. Bhagat v. D. Bhagat (Mrs.), (1994) 1 SCC 337 : (1994 AIR SCW 45) this Court has explained the concept of cruelty both mental and physical which could entitle an applicant to claim divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. In Chanderkala Trivedi (Smt.) v. Dr. S. P. Trivedi, (1993) 4 SCC 232 it was held that if a marriage was dead and there was no chance of its being retrieved it was better to bring it to an end. In this case the marriage is dead both emotionally and practically. Continuance of marital alliance for name-sake is prolonging the agony and affliction. It cannot be disputed that the husband has not been dutiful and conscious of his responsibilities either to-wards his wife or his son. He did not contribute any thing towards upbringing of the child. Yet the marriage being dead, the continuance of it would be cruelty, specially when the child born out of the wedlock of the appellant and the respondent as far back as 1968 having now grown and being in service. The appellant has expressed remorse for his conduct and is willing to compensate for his past mistakes by transferring the only house in his name in favour of his wife.
4. Considering the facts and circumstances of this case we, in exercise of power under Article 142 of the Constitution of India, direct that the marriage between appellant and the respondent shall stand dissolved subject to the appellant transferring the house in the name of his wife. The house shall be transferred within four months from today. The dissolution shall come into effect from the date the house is transferred and possession is handed over to the respondent.
5. The appeal is disposed of accordingly. Parties shall bear their own costs.
Order accordingly.