Thus observed the Supreme Court in the case of Hitesh Bhatnagar v. Deepa Bhatngar reported in
Case Details
A.F.R. IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No. 56 of 2020 An Appeal under Section 19 of the Family Courts Act, 1984. -------------- Ananta Charan Tripathy ..…. Appellant -versus- Sarita Satapathy …… Respondent ------------------------------------------------------------------------- Mr. S.K. Mishra, Advocate For Appellant : Mr. A.K. Pattnaik, Advocate For Respondent ------------------------------------------------------------------------- : CORAM: MR. JUSTICE S. TALAPATRA MISS JUSTICE SAVITRI RATHO JUDGMENT 26.06.2023 Savitri Ratho, J. “Marriages are made in heaven, or so it is said. But we are more often than not made to wonder what happens to them by the time they descend down to earth. Though there is legal machinery in place to deal with such cases, these are perhaps the toughest for the courts to deal with. Such is the case presently before us.” MATA No. 56 of 2020 Page 1 of 35 Thus observed the Supreme Court in the case of Hitesh Bhatnagar vs Deepa Bhatngar reported in 2011 5 SCC 234. We are faced with a similar situation. 2. This appeal has been filed by the appellant challenging the judgment dated 31.01.2020 passed by the learned Judge, Family Court, Jajpur in Civil Proceeding No. 168 of 2011, dismissing the petition filed by him under Section 13 of the Hindu Marriage Act for dissolution of his marriage with the respondent which had been solemnised on 24.01.2007. The C.P. was originally filed in the Court of learned Family Judge, Cuttack as C.P. No. 663 of 2010 and thereafter transferred to Jajpur and renumbered as C.P. No. 168 of 2011. CASE OF THE APPELLANT – HUSBAND 3. The marriage between the appellant and the respondent was solemnized on 24.01.2007 as per Hindu customs and rites after which they lived together as husband and wife and were blessed with a female child on 14.01.2008. The appellant got a job in an U.P. School under rehabilitation assistance scheme in Page 2 of 35 MATA No. 56 of 2020 place of his father on the basis of no objection from all his six sisters with an agreement to take care of all of them. Accordingly, he performed the marriage of his unmarried sisters and incurred loan of Rs.10,00,000/- from his G.P.F. account and different banks and installments were being deducted from his account. The respondent-wife was mentally torturing the appellant, by blaming his parents and sisters and ill treating him and them. His father in law and brother in law were regularly visiting his house and pressurizing him to visit their house in Bidyadharpur regularly. She would make wild allegations against the father and brother of the appellant and visit the house of their immediate neighbor inspite of protests of the appellant. After she conceived, she asked her parents and brother to take her to their house and left on 15th July 2007. The respondent would call the appellant to her father’s house where she, her parents and her brother compelled him to stay back and attend office from there. They wanted the appellant to stay in their house as domesticated son in law. The appellant had sent one gentlemen namely Banshidhar Mohapatra, who was related to the father of MATA No. 56 of 2020 Page 3 of 35 respondent to bring her back to his house but it was in vain. Inspite of his several attempts and letters, the respondent did not come back but compelled the appellant to stay in her paternal house. While staying there, she filed a case under Section – 125 Cr.P.C against him. During conciliation, the appellant had gone to the house of the respondent with his counsel but she declared that he should visit her 8 - 9 times for her satisfaction. He had gone to her paternal house regularly and stayed with the respondent, but the respondent did not allow him to co habit , inspite of request by him stating that unless he separated from his family she would not allow him to have conjugal relations . He therefore filed the proceeding praying for dissolution of their marriage by a decree of divorce. CASE OF THE RESPONDENT-WIFE 4. The respondent entered appearance and filed her written statement refuting the allegations made against her by the appellant . She stated that the appellant, his parents, brothers in law and the unmarried sisters instigated the appellant and demanded a thick gold chain, other house hold articles and cash Page 4 of 35 MATA No. 56 of 2020 of Rs.1,00,000/-. On 30.06.2008 her father lodged an F.I.R. before Gurudijhatia P.S. to rescue her and the matter was compromised. On 16.07.2008 the appellant brought her in an ailing condition and forced her to undergo an abortion at Badachana P.H.C. and then left her in the parental house. She denied that she tortured the appellant and ill treated him and his other family members. She stated that her father being a Government servant hardly got time to visit her and the appellant, his parents and one sister in law being instigated by the other five married sisters in law demanded a thick gold chain for him, a gas stove, five costly silk sarees for the married sisters in law and Rs.1,00,000/- from the compensation amount received by her father for acquisition of his land. She could not rely on the coaxing of her father in law and Bansidhar Mohapatra to go back apprehending danger to her life. The appellant never made any sincere attempt to restore their conjugal life. She was spending her days miserably in her parents house since 16.07.2008. She had no intention of deserting or willfully neglecting to resume conjugal life with the appellant whereas her husband-appellant MATA No. 56 of 2020 Page 5 of 35 neglected her having no intent to restore their marital life. Finding no way out she had to file a case under Section 125 of the Cr.P.C. for payment of maintenance to her and their daughter and the appellant has not paid a single pie to her as maintenance. The letters written by her to the appellant describing her pathetic condition did not produce any results. COUNTER AFFIDAVIT, RESPONDENT - WIFE 5. The respondent has filed a counter affidavit in this Court more or less reiterating the her stand in the written stamen . She has admitted the birth of their daughter on 14.01.2008 and filing of a petition under Section 125 Cr.P.C. for their maintenance . She has denied everything else and specifically stated that allegation of mental torture and harassment by her to the appellant and his family members are totally false. She was forced to leave her matrimonial home with her minor daughter being mentally and physically tortured by appellant His family members were demanding additional dowry from her for which the criminal case had been registered against him which was later
Decision
on disposed of on the basis of compromise outside of Court. MATA No. 56 of 2020 Page 6 of 35 ISSUES 6. The learned Judge, Family Court framed the following points for consideration. (i) Whether the appellant’s case is maintainable in law? (ii) Whether the respondent-wife treated the Appellant- husband with cruelty? (iii) Whether the respondent has deserted the appellant for a period of not less than two years immediately preceding the presentation of the petition? (iv) Whether the appellant is entitled for a decree of divorce against the respondent? WITNESSES 7. The appellant examined himself as P.W.1, a co-villager Bansidhar Mohapatra as P.W.2 and Bishnu Prasad Sahu a person from a nearby village as P.W.3. He proved documents pertaining to medical treatment of his father and the notice from Permanent and Continuous Lok Adalat which were marked as Ext.1 and 2 respectively. The respondent examined herself as R.W.1, her father Sudhansu Kumar Satpathy as R.W.2 and Basanta Kumar Page 7 of 35 MATA No. 56 of 2020 Sahoo a neighbour of her father as R.W.3 and proved documents such as copy of FIR, some letters, R-O-Rs etc. which were marked as Exts. A to F respectively. IMPUGNED JUDGMENT 8. The learned Judge, Family Court, Jajpur after examining the evidence adduced by the parties and referring to the decision of Supreme Court in the case of Dastane v. Dastane, AIR 1975 SC 1534 and to the decision of Samar Ghosh v. Jaya Ghosh reported in (2007) 4 SCC 511 and Viswanath v. Sau Sarala Viswanath Agrawal reported in 2012 (SC) 7 SCC 607, and Section 23 of the Hindu Marriage Act , held that the Appellant had failed to set up a case of cruelty and desertion by the wife in order to get the marriage dissolved and vide judgment and order dated 31.01.2020 dismissed the proceeding . SUBMISSIONS 9. Mr.S.K.Mishra, learned counsel for the appellant has submitted that the impugned judgment is liable for interference as the evidence on record that the respondent committed cruelty on the appellant and deserted him has not been considered by the Page 8 of 35 MATA No. 56 of 2020 learned Family Judge. The refusal of the respondent to have physical relationship with him despite his fulfilling her demand of staying in her parental house , shows the animus deserendi on her part. That she went to her paternal house repeatedly without any just cause and did not come back to the house of the appellant despite his repeated efforts , establishes that she had deserted the appellant and therefore the conclusion to the contrary arrived at by the Court below is liable to be set aside. The evidence adduced by the appellant that the respondent ill- treated her in-laws and refused to discharge her obligation as a wife amounts to cruelty. But this has not been considered by the learned Family Judge. 10. Mr.A.K.Patnaik, learned counsel for the respondent has submitted that the respondent was compelled to leave the house of the appellant on account of the torture and ill-treatment meted out to her on account of unfulfilled demand for dowry by the appellant and his family members. The appellant has not made sincere effort to bring her back from the house of the parents which has been rightly observed by the learned Family MATA No. 56 of 2020 Page 9 of 35 Judge. So neither the allegation of cruelty nor desertion against the respondent has been proved. In support of his submission, learned counsel for the appellant has cited the decision of this Court in the case of Manoj Kumar Tripathy vs. Mayarani Praharaj : 2010 (I) ILR CUT 475. STATUTORY PROVISIONS 11. The portions of Section 13 and 23 of the Hindu Marriage Act which are relevant for deciding appeal are extracted below for easy reference : “13. Divorce.—(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— (i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or Page 10 of 35 MATA No. 56 of 2020 xxxx” “23. Decree in proceedings. — (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that— (a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of Section 5 is not in anyway taking advantage of his or her own wrong or disability for the purpose of such relief, and (b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and”……. EVIDENCE 12. To appreciate the submissions of learned counsel for the parties , it is necessary to peruse the evidence of the witnesses examined in the proceeding. 13. The appellant – husband has examined himself as P.W.1 and two co villagers as P.W. 2 and P.W.3. MATA No. 56 of 2020 Page 11 of 35 The appellant has stated that as he had got his job on the basis of rehabilitation assistance scheme, he was to look after his parents and two dependent unmarried sisters. He had incurred loan of Rs Ten lakhs. His aged parents were dependent on the two of them . But the respondent did not want him to spend his salary on them and wanted him to hand over his salary to him . She was not interested in doing housework and misbehaved with his family members and wanted him stay in her parental house as a domesticated son in law . She took their daughter and went away to her paternal house to avoid doing the household work and compelled him to visit her regularly . Her family members also pressurised him to stay in their house in Bidydharpur . He had gone on a number of occasions to their house and was forced stay there and attend office from there . But he could not stay there forever and came away as he had to look after his parents . He was however unable to mention the exact dates when his parents in law visited his house to induce his wife or the dates his father in law and brother in law insisted he stay at Bidydharpur and the date his father and others visited the parental house or the MATA No. 56 of 2020 Page 12 of 35 dates he wrote the letters . He has admitted that his salary is Rs 50,000/- per month . He was unable say where his daughter was studying. But he has stated that he was willing to take back his wife and that she did not allow him to cohabit when he went to her parents house. P.W. 2 has admitted that he does not remember the exact date of settlement and the date the appellant started living separately from his parents and that he had heard from father of appellant that she was not discharging her duties in their house and from his mother that his in laws wanted to keep him as domesticated son in law . He also admitted that on the previous day he had learnt That the parents of the respondent wanted to keep the appellant as a domesticated son in law . P.W 3 who does not stay in the same village has stated that the Appellant used take responsibility of his aged parents who were suffering being aged 82 and 76 years and his sisters . He has stated that he visited the house of the appellant 7 – 8 times between 24.01.2007 and 12.0.2007 and has seen the respondent twice but has not spoken to her. The respondent MATA No. 56 of 2020 Page 13 of 35 stayed with her parents in Bidyadharpur within one year of her marriage without reasonable cause and that she left the house of the Appellant in the later part of 2007 and family of the appellant requested her for restitution of conjugal rights but in vain , but could not say the exact dates . 14. The Respondent-wife has examined herself as R.W.1 and her father as R.W.2 and R.W 3 a co villager . The respondent has stated about the assaults on her for non fulfillment of dowry demand and a trivial defect in cooking and that she has not willfully deserted or neglected to restore their conjugal life and that she had gone to the house of the neighbour to escape the brutal assault . She has denied that the Appellant had come ten to twelve times to take her back and that he had come as per advice of the Judge, Family Court , Cuttack . She expressed her willingness to go back to the house of her in laws but admitted that she had never gone to their house after initiation of the case . R.W.2, father of the respondent has stated that the respondent had to leave the house for non fulfillment of dowry MATA No. 56 of 2020 Page 14 of 35 demand and to escape brutal assault by the appellant. He has denied that the appellant was compelled to stay in the house of his in laws when he had been called there by the respondent to visit her there. R.W.3 has stated that the respondent had left the house of the appellant since 2008 , but the appellant was regularly coming there and they lived there as husband and wife and he has seen him visiting ten or fifteen times . The respondent was unemployed and was depending on her parents to maintain herself and her child while Appellant was working as an Asst. teacher in Ostapur Primary School . CRUELTY 15. In numerous decisions , the Supreme Court has discussed various facts and circumstances which can be considered to be “cruelty” and a ground for divorce under Section – 13 (1) (ia) of the Hindu Marriage Act . 15.1 In the case of V. Bhagat v. D Bhagat (Mrs) reported (1994) 1 SCC 337 , the Supreme Court has held as follows : “Merely because there are allegations and counter- allegations, a decree of divorce cannot follow. Nor is Page 15 of 35 MATA No. 56 of 2020 mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings (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 insoluble mess, when the court finds it in the interest of both the parties.” 15.2 In the case of N.G. Dastane v. S. Dastane reported in (1975) 2 SCC 326 at page 337, the Supreme Court had examined the concept of cruelty in detail and had observed as follows : "The enquiry therefore has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent." MATA No. 56 of 2020 Page 16 of 35 15.3 In the case of Samar Ghosh v. Jaya Ghosh reported in (2007) 4 SCC 511 the definition of the word ‘cruelty’ has been given a wider scope and the Court enumerated some cases of “mental cruelty”. Paragraph 41 and sub paragraph of its conclusions in Paragraph 101 are relevant and are extracted below : “41. The concept of cruelty has been summarized in Halsbury's Laws of England [Vol.13, 4th Edition Para 1269] as under: "The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to Page 17 of 35 MATA No. 56 of 2020 the other is other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits." “101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive. xxxx. (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 Page 18 of 35 MATA No. 56 of 2020 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.” 15.4 The Hon'ble Supreme Court in a recent decision in the case of Rakesh Raman v. Kavitha reported in 2023 SCC Online SC 497 has held as follows: “…..Irretrievable breakdown of a marriage may not be a ground for dissolution of marriage, under the Hindu Marriage Act, but cruelty is. A marriage can be dissolved by a decree of divorce, inter alia, on the ground when the other party “has, after the solemnization of the marriage treated the petitioner with cruelty”. In our considered opinion, a marital relationship which has only become more bitter and acrimonious over the years, does nothing but inflicts cruelty on both the sides. To keep the facade of this broken marriage alive would be doing injustice to both the parties. A marriage which has broken down irretrievably, in our opinion spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. It is therefore a ground for MATA No. 56 of 2020 Page 19 of 35 dissolution of marriage under Section 13(1)(ia) of the Act.” IRRETRIEVABLE BREAKDOWN OF MARRAGE 16. There are a catena of decisions of the Supreme Court as well as the High Courts on the question whether “irretrievable breakdown of marriage” can be a ground for divorce . It is not disputed that this is not one of grounds provided in Section 13 of the Hindu Marriage Act and the Supreme Court has cautioned the High Courts for relying in this ground for granting divorce by emphasizing that it grants divorce on this ground by exercising its power under Article – 142 of the Constitution of India which is not available to the High Courts .It has also observed in a number of decisions that it is high time this ground was included as one of the grounds of divorce under the Hindu Marriage Act . 16.1 In the case of Vishnu Dutt Sharma vs.Manju Sharma : (2009) 6 SCC 379, the Supreme Court held that irretrievable breakdown of marriage is not a ground for divorce as it is not contemplated under Section-13 of the Hindu Marriage Act and granting divorce on this ground alone would amount to adding a Page 20 of 35 MATA No. 56 of 2020 clause therein by a judicial verdict which would amount to legislation by Court, observing as follows : "If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts." 16.2 Much before that , in in the case of V. Bhagat v. D Bhagat (Mrs) reported (1994) 1 SCC 337 , the Supreme Court has held as follows : “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 extraordinary features to warrant grant of divorce on the basis of pleadings (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 MATA No. 56 of 2020 Page 21 of 35 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 insoluble mess, when the court finds it in the interest of both the parties.” 16.3 The view of the Supreme Court in its recent decision in the of Rakesh Raman ( supra ) on irretrievable breakdown of marriage amounting to cruelty has already been referred to by us. 16.4 Thereafter a Constitution Bench of the Supreme Court in the case of Shilpa Sailesh vs Varun Sreenivasan has delivered its decision on 01.05.2023 which is reported in 2023 SCC Online SC 544 . In the said case , the Supreme Court proceeded to consider and decide three substantial questions. Its decision on the third issue is relevant for deciding this appeal and the third question as well as its answer are extracted below : “(iii) Whether this Court can grant divorce in exercise of power under Article 142(1) of the Constitution of India when there is complete and irretrievable breakdown of marriage in spite of the other spouses opposing the prayer? MATA No. 56 of 2020 Page 22 of 35 This question is also answered in the affirmative, inter alia, holding that this Court, in exercise of power under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do ‘complete justice’ to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. The Court, as a court of equity, is required to also balance the circumstances and the background in which the party opposing the dissolution is placed.” 16.5 In Vishwanath vs Sau Sarala Vishwanath reported on 2012 SCR 607 , the Supreme Court has held as follows : “40. Regard being had to the aforesaid, we have to evaluate the instances. In our considered opinion, a normal reasonable man is bound to feel the sting and the pungency. The conduct and circumstances make it graphically clear that the respondent-wife had really humiliated him and caused mental cruelty. Her conduct clearly exposits that it has resulted in causing agony and anguish in the mind of the husband. She had Page 23 of 35 MATA No. 56 of 2020 publicised in the newspapers that he was a womaniser and a drunkard. She had made wild allegations about his character. She had made an effort to prosecute him in criminal litigations which she had failed to prove. The feeling of deep anguish, disappointment, agony and frustration of the husband is obvious. It can be stated with certitude that the cumulative effect of the evidence brought on record clearly establish a sustained attitude of causing humiliation and calculated torture on the part of the wife to make the life of the husband miserable. The husband felt humiliated both in private and public life. Indubitably, it created a dent in his reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is extremely delicate and a cherished value this side of the grave. It is a revenue generator for the present as well as for the posterity. Thus analysed, it would not be out of place to state that his brain and the bones must have felt the chill of humiliation. The dreams sweetly grafted with sanguine fondness with the passage of time reached the Everstine disaster, possibly, with a vow not to melt. The cathartic effect looked like a distant mirage. The cruel behavior of the wife has frozen the emotions and snuffed out the bright candle of feeling of the husband because he has been treated as an unperson. Thus, Page 24 of 35 MATA No. 56 of 2020 analysed, it is abundantly clear that with this mental pain, agony and suffering, the husband cannot be asked to put up with the conduct of the wife and to continue to live with her. Therefore, he is entitled to a decree for divorce.” 16.6 In the case of V.Bhagat v. D.Bhagat (supra), the apex court has intended to make out a workable definition of cruelty and has held that cruelty is a conduct which afflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. Mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility, or otherwise, of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which is neither MATA No. 56 of 2020 Page 25 of 35 possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made. 16.7 This Court in the case of Manoj Kumar Tripathy (supra) has held as follows: “15. Upon perusal of the decisions cited on behalf of the parties, it is found that in a number of cases Hon'ble Supreme Court has granted or upheld decree of divorce on the ground that the marriage between the parties has irretrievably broken down. However, it is evident from the decisions that such recourse was adopted in exercise of jurisdiction under Art. 142 of the Constitution of India to do complete justice. Also, in some cases like Chetan Dass v. Kamla Devi, AIR 2001 SC 1709 plea for dissolution of marriage was rejected despite the fact that marriage between the parties had become dead. In Smt. Sneh Prabha v. Ravinder Kumar:AIR1995 SC 2170, Durga Prasanna Tripathy v.Arundhati Tripathy, AIR 2005 SC 3297 MATA No. 56 of 2020 Page 26 of 35 and Rishikesh Sharma v. Saroj Sharma : (2007) 2 SCC 263, divorce was granted on the ground of irretrievable break down of marriage without reference to Art. 142 of the Constitution of India. In V. Bhagat v. D. Bhagat, AIR 1994 SC 710, it was observed that irretrievable break down of the marriage is not a ground by itself for grant of decree of divorce. In Ashok Hurra v. Rupa Ashok Hurra, AIR 1997 SC 1266, Anjana Kishore v. Puneet Kishore (2003) 25 OCR (SC) 806, Smt. Swati Verma v. Rajan Verma (2004) 27 OCR (SC) 204 : (AIR 2004 SC 161), Romesh Chander v. Savitri, AIR 1995 SC 851 and Satish Sitole v. Ganga, AIR 2008 SC 3093, decree of divorce was granted in exercise of jurisdiction under Article 142 of the Constitution of India on the ground that there was irretrievable break down of the marriage which had become dead. 16. In A.Jayachandra v. Aneel Kaur, AIR 2005 SC 534, it was observed by a Three Judges Bench of Hon'ble Supreme Court that in some cases dissolution of marriage has been allowed on the ground that the marriage had irretrievably broken down with a view to do complete justice and shorten the agony of the parties engaged in long drawn legal battle. It was held: MATA No. 56 of 2020 Page 27 of 35 “17. Several decisions, as noted above, cited by learned counsel for the respondent to contend even if marriage has broken down irretrievably decree of divorce cannot be passed. In all these cases it has been categorically held that in extreme cases the Court can direct dissolution of marriage on the ground that the marriage broken down irretrievably as is clear from paragraph 9 of Shiv Sunder's case (reported in AIR 2004 SC 511 : 2004 AIR SCW 5857) (supra). The factual position in each of the other cases is also distinguishable. It was held that long absence of physical company cannot be a ground for divorce if the same was on account of husband's conduct. In Shiv Sunder's case (supra) it was noted that the husband was leading adulterous life and he cannot take advantage of his wife shunning his company. Though the High Court held by the impugned judgment that the said case was similar, it unfortunately failed to notice the relevant factual difference in the two cases. It is true that irretrievable breaking of marriage is not one of the statutory grounds on which Court can direct dissolution of marriage, this Court has with a view to do complete justice and shorten the agony of the parties engaged in Page 28 of 35 MATA No. 56 of 2020 long drawn legal battle, directed in those cases dissolution of marriage. But as noted in the said cases themselves those were exceptional cases.” 17. Another Three Judges Bench of the Hon'ble Supreme Court in Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675 also took note of the fact that irretrievable break down of marriage is not a ground for divorce under the Act, and, therefore, recommended for inclusion of the same by way of amendment. It was held : "71. 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 services, 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 irretrievabl breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955. xx xx xx xx xx xx 96. Before we part with this case, on the consideration of the totality of facts, this Court would like to recommend the Union of India to seriously consider bringing an amendment in the Hindu Page 29 of 35 MATA No. 56 of 2020 Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps.” 18. In view of the above, in the absence of cogent evidence to substantiate the allegations of cruelty as made by the appellant, long separation by itself cannot be a ground for grant of decree of divorce. That would be against the provision under Section 13 of the Act. In Vishnu Dutt Sharma v. Manju Sharma., AIR 2009 SC 2254, it has been held by the Hon'ble Supreme Court: “12. Learned counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect Page 30 of 35 MATA No. 56 of 2020 that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence we do not find force in the submission of the learned counsel for the appellant.” 19. Thus, it is obvious that in some cases marriage was directed to be dissolved on the ground that the same has irretrievable broken down by the Hon'ble Supreme Court in exercise of jurisdiction under Article 142 of the Constitution of India which jurisdiction is not available to any other Court including High Court. Despite several recommendations, irretrievable breakdown is yet to be included by way of amendment as a ground for dissolution of marriage under Section 13 of the Act. In the present case, we do not find any infirmity in the finding of the learned Judge, Family Court, Cuttack to the effect that evidence on record does not substantiate allegations of cruelty against the respondent. Evidence of respondent herself exhibits her eagerness to resume the matrimony. Therefore, we find no reason to interfere with the impugned judgment. Accordingly, the appeal is dismissed and the impugned judgment passed by learned Judge , Page 31 of 35 MATA No. 56 of 2020 Family Court, Cuttack is confirmed. Parties shall bear their own cost.” ANALYSIS, DISCUSSION AND CONCLUSION 17. We have carefully gone through the plaint, written statement, depositions of witnesses, the impugned judgment, judicial pronouncements , the relevant provisions of Section 13 of the Hindu Marriage Act and the documents referred to above. 18. In their evidence, both parties had stated that they want to resume their marital relations. The wife has stated that she left the matrimonial house on account of ill treatment and assault due to unfulfilled demand for dowry. But the appellant has stated that she had called him to her parents house and he had gone on a number of occasions to the house of her parents and he was compelled to stay there. R.W 3 has himself stated that the appellant has gone to the parental house of his wife on a number of occasions and they have stayed as husband and wife. 19. The appellant could not ignore his responsibilities and duty towards his parents and sisters, this did not find favour with his wife. It appears that the respondent did not want to do the Page 32 of 35 MATA No. 56 of 2020 housework and wanted his entire salary and also wanted him to stay in her parents house. The allegation that she did not allow him to cohabit with her when he went to her parental house and lived with her is not believable as she has conceived during that period and undergone an abortion . The parties have thus made allegations and counter allegations against each other . But even accepting the allegations made against the wife to be true , it cannot be accepted that the appellant has made out a case of cruelty or desertion of the magnitude or nature as required under Section 13 ( 1) (ia) and 13(1) (ib) respectively as explained in various decisions of Supreme Court referred to earlier so as to entitle him to a decree for divorce on the grounds of cruelty or divorce . Further it appears that he has not made sincere effort to bring back the respondent who is still willing to join his company for the sake of their daughter. Even after staying apart for 15 years, the respondent still wants to go back to her matrimonial house alongwith her daughter . 20. But merely because the respondent wants to go back to her matrimonial house will not be a ground to refuse divorce. MATA No. 56 of 2020 Page 33 of 35 Following the decision of the Supreme Court in the case of Shilpi Sailesh ( supra) , in order to do “complete justice” , we are satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together for which continuation of the formal legal relationship is unjustified. Balancing the circumstances , and after considering the opposition of the respondent to the divorce , we are of the view that the marriage between the parties should be dissolved by a decree of divorce . PERMANENT ALIMONY 21. While the appellant is aged about 49 years, the respondent is aged about 40 years. We think it proper to fix a suitable amount as permanent alimony to be paid to her by the appellant. The appellant is working as primary school teacher and was admittedly getting an income of Rs 50,000/- at the time of deposing i.e. September 2019. The respondent is unemployed and dependent on her parents for her maintenance and maintenance of their daughter. So in our view an amount of MATA No. 56 of 2020 Page 34 of 35 Rs.15 lakhs would be an appropriate amount which should be paid to her as permanent alimony. 22. We therefore set aside the impugned judgment 31.01.2020 passed by learned Judge, Family Court, Jajpur in Civil Proceeding No. 168 of 2011 and dissolve the marriage between the parties by a decree of divorce subject to payment of permanent alimony of Rs 15 lakhs by the appellant to the respondent within a period of four three months from today. Decree be drawn up accordingly. 23. The Matrimonial Appeal is accordingly allowed S. Talapatra, J. I agree. …………………………. (Savitri Ratho, J.) …………………………. (S. Talapatra, J.) Orissa High Court, Cuttack. The 26th day of June, 2023. S.K. Behera, Senior Stenographer. Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court Date: 22-Oct-2023 17:56:10 MATA No. 56 of 2020 Page 35 of 35