SUPREME COURT OF INDIA
Sanghamitra Ghosh
Vs
Kajal Kumar Ghosh
Transfer Petition (Civil) 228 of 2004 With Tp (Crl.) Nos.105 & 171 of 2004, Tp (Civil) No.727 of 2004 and Tp (Civil) No.168 of 2006
(G. P. Mathur and Dalveer Bhandari, JJ)
20.11.2006
DALVEER BHANDARI, J.
The marriage of the petitioner was solemnized on 8.11.1999 with the
respondent as per Hindu rites and customs and was duly registered with the
Registrar of Marriage. The parties have closely known each other before
marriage and the marriage was solemnized according to the wishes of the
petitioner and the respondent.
A male child was born out of the wedlock but, unfortunately, the parties did
not have a smooth marital life. According to the allegations of the petitioner,
Sanghamitra Ghosh, she was physically and mentally tortured by the respondent
and his parents. According to her, the degree of torture increased day by day
and eventually on 14.1.2001 she was driven out of the marital home along with
her minor child. Thereafter, the petitioner moved to her parents and started
with them from 15.1.2001. The respondent never cared to inquire about the
petitioner and her child and has never sent any money either for the
maintenance of the petitioner or her child.
In these circumstances, she was forced to file a criminal complaint on 4.8.2002
under Section 498A of the Indian Penal Code read with Sections 3 & 4 of Dowry Prohibition Act, 1961.
According to the version of the petitioner, she was totally dependant on her
father, who himself was very old and was suffering from cancer and a
considerable amount had to be spent for his treatment. In these circumstances,
the petitioner became an additional burden on her parents. In order to maintain
herself and her child, she took up a petty job in the ICICI bank on a meagre
salary. The petitioner now has been transferred to Bangalore, as a result of
which it had become extremely difficult for her to attend the court proceedings
in West Bengal. It is very expensive and time consuming. In these
circumstances, the petitioner had filed a transfer petition praying that
matrimonial suit no.437 of 2002 titled as "Kajal Kumar Ghosh versus
Sanghamitra Ghosh" filed by the respondent-husband under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal
rights and pending in the court of District Judge, Barasat be transferred to
the court of competent jurisdiction at Bangalore.
This Court on 26.3.2004 issued a show-cause notice on the transfer petition.
Reply to the transfer petition was filed by the respondent. The datewise
sequence of events given by the respondent are contrary to what had been
averred by the petitioner. According to the respondent, the petitioner was not
driven out of the matrimonial home. In fact, she had walked out of the
matrimonial home. The respondent further submitted that their marriage broke
down due to the basic difference in their social status, educational and
cultural background, lack of tolerance and inability to adopt and adjust to a
life of a middle class family.
During the pendency of this petition, the parties have explored the possibility
of an amicable settlement. The matter was adjourned from time to time to give
the parties adequate time to mutually and amicably settle their differences.
The parties, despite persuasion of the Court, have not been able to sort out
their differences and decided to live separately. According to the parties,
their marriage has been irretrievably broken down and reconciliation is out of
question.
Learned counsel for the parties have prayed that in the peculiar facts and
circumstances of this case, this Court may grant a decree of divorce by mutual
consent.
On 15.9.2006
.66/2004 pending before the
District Judge, Barasat, West Bengal filed by the husband under Section 25 of
the Guardians and Wards Act, 1890 for custody.
TP (CIVIL) NO.168/2006 which has been filed by the wife before this Court
arises out of these proceedings.
5. Both the parties humbly request this Court in exercise of its powers to do
complete justice to the parties, quash/close all the above pending proceedings
in view of this settlement as the parties do not intend pursuing the litigation
any further.
6. Both the parties humbly request that all the transfer petitions pending in
this Court (as mentioned earlier in para 4) to be dismissed as infructuous.
7. Both the parties submit that their marriage has broken down irretrievably
and that there is no possibility of the parties living together. In these
circumstances, both parties would humbly request this Court in exercise of its
powers to grant a decree of divorce by mutual consent.
8. Both the parties undertake that they shall adhere to the terms of
compromise/settlement and that they shall not litigate any further and will
have no claim against each other hereafter."
Learned counsel appearing for the parties have prayed that in the peculiar
facts and circumstances and in the interest of justice, this Court, in exercise
of its jurisdiction under Article 142 of the Constitution
Of India, 1950, may grant a decree of divorce by mutual consent.
Learned counsel for the parties have also drawn the attention of this Court to
the decision of Harpit Singh Anand v. State of West Bengal reported in .
In this case, in almost similar circumstances, this Court in order to put a
quietus to all litigations between the parties and not to leave any room for
future litigation and on the request of the said parties, exercising the power
vested under Article 142 of the Constitution Of India, 1950,
dissolved the marriage and granted a decree of divorce by mutual consent.
In the case of Kanchan Devi v. Promod Kumar Mittan & Another reported in
3, where the marriage of the parties was
irretrievably broken down, this Court exercised the power under Article 142 of
the Constitution Of India, 1950 of India and passed
the following order:
"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, 1950 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. PC 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 all those disputes in terms of the settlement. This appeal is disposed
of in the above terms."
In the case of Ashok Hurra v. Rupa Bipin Zaveri etc. reported in 8, this Court while dealing with a matrimonial matter
quoted few excerpts from the Seventy-first Report of the Law Commission of
India on the Hindu Marriage Act, 1955
"Irretrievable Breakdown of Marriage" dated 7.4.1978. We deem it
appropriate to reproduce some excerpts from the said report as under:
"Irretrievable breakdown of marriage is now considered, in the laws of
a number of countries, a good ground of dissolving the marriage by granting a
decree of divorce.
Proof of such a breakdown would be that the husband and wife have separated and
have been living apart for, say, a period of five or ten years and it has
become impossible to resurrect the marriage or to reunite the parties. It is
stated that once it is known that there are no prospects of the success of the
marriage, to drag the legal tie acts as a cruelty to the spouse and gives rise
to crime and even abuse of religion to obtain annulment of marriage.
The theoretical basis for introducing irretrievable breakdown as a ground of
divorce is one with which, by now, lawyers and others have become familiar.
Restricting the ground of divorce to a particular offence or matrimonial
disability, it is urged, causes injustice in those cases where the situation is
such that although none of the parties is at fault, or the fault is of such a nature
that the parties to the marriage do not want to divulge it, yet there has
arisen a situation in which the marriage cannot be worked. The marriage has all
the external appearances of marriage, but none of the reality. As is often put
pithily, the marriage is merely a shell out of which the substance is gone. In
such circumstances, it is stated, there is hardly any utility in maintaining
the marriage as a facade, when the emotional and other bounds which are of the
essence of marriage have disappeared. After the marriage has ceased to exist in
substance and in reality, there is no reason for denying divorce. The parties
alone can decide whether their mutual relationship provides the fulfilment
which they seek. Divorce should be seen as a solution and an escape route out
of a difficult situation. Such divorce is unconcerned with the wrongs of the
past, but is concerned with bringing the parties and the children to terms with
the new situation and developments by working out the most satisfactory basis
upon which they may regulate their relationship in the changed circumstances.
Moreover, the essence of marriage is a sharing of common life, a sharing of all
the happiness that life has to offer and all the misery that has to be faced in
life, an experience of the joy that comes from enjoying, in common, things of
the matter and of the spirit and from showering love and affection on one's
offspring. Living together is a symbol of such sharing in all its aspects.
Living apart is a symbol indicating the negation of such sharing. It is
indicative of a disruption of the essence of marriage --"breakdown"-
and if it continues for a fairly long period, it would indicate destruction of
the essence of marriage "irretrievable breakdown"."
In order to do complete justice in the matrimonial matters, this Court has been
less hesitant in exercising its extra-ordinary jurisdiction under Article 142
of the Constitution Of India, 1950. To illustrate
this fact, reference of some decided matrimonial cases is given hereinbelow.
In Swati Verma v. Rajan Verma & Others reported in , this Court came
to a definite conclusion that the marriage between the parties has
irretrievably broken down and with a view to restore good relationship and to
put quietus to all litigations between the parties and not to leave any room
for future litigation, so that they may live peacefully hereafter, this Court
granted a decree of divorce by mutual consent while exercising its power under
Article 142 of the Constitution Of India, 1950.
This Court while exercising its unique power vested under Article 142 of the Constitution Of India, 1950 in a transfer petition in the
case of Madhuri Mehta v. Meet Verma reported in 5,
observed as under:
"During the course of hearing of this transfer petition, parties have
jointly made an application under Section 13-B of the Hindu
Marriage Act, 1955 before us praying for dissolution of their marriage
by mutual consent and in the body of the application a provision has been made
for their only child. Though the child has been conferred the right to visit
his father as and when he likes, there is no corresponding right with the
father to visit his child. That state of affairs would be violating the rights
of the child and the father. The husband will, thus, have a right of visitation
to see his child but after giving due intimation to the mother. The parties
have been estranged and have kept apart since January 1996. Earlier to the
present status, the parties had their earlier marriages broken or disrupted.
The husband lost his wife in a vehicular accident and the wife had divorced her
earlier husband. In this background their differences can well be appreciated
when both of them are highly educated doctors. Keeping that in view, we
entertain this application and grant them divorce by mutual consent in exercise
of our powers under Article 142 of the Constitution Of
India, 1950, for which there is ample authority reflective from past
decisions of this Court. The divorce petition pending in the Family Court at
Patna, shall stand disposed of automatically by this order.
The transfer petition and the divorce petitions are disposed of
accordingly."
In another transfer petition in the matrimonial matter, in Anita Sabharwal v.
Anil Sabharwal reported in 1, this Court was
of the view that there was no hope for the parties to live together and passed
the following order:
"A divorce petition being HMA Case No.863 of 1994 preferred by the
respondent- husband was pending in the Court of Shri A.K. Pathak, Additional
District Judge, Delhi. The instant transfer petition was moved by the
petitioner-wife seeking transfer of the said case to the Family Court, Mumbai.
During the pendency of the transfer petition, parties as well as their counsel
had on 9.9.1996 put on record a compromise deed wherein they have agreed to get
divorce by mutual consent. Strictly speaking, the preconditions of such claim
have not been laid inasmuch as a petition to that effect has not been filed
under Section 13-B of the Hindu Marriage Act, 1955
(the Act) before the first matrimonial court, and that the statutory period of
6 months has not even commenced. Be that as it may, it stands established
beyond doubt on our summoning of the original file HMA Case No.863 of 1994 that
the parties were married about 14 years ago, have spent the prime of their life
in acrimony and litigating and that it is time that their mutuality bears some
fruit in putting them apart. Therefore, we take the divorce petition HMA Case
No.863 of 1994 on our own file and import thereto the compromise deed put on
record by the parties jointly. In terms therewith, a sum of Rs.7 lakhs stands
paid to the wife by means of 3 separate bank drafts of Rs.2 lakhs, Rs.2 lakhs
and Rs.3 lakhs. Recurring provision has been made therein for their children's
education and visitation rights of the father. We have questioned the parties
and they are eager to dissolve the matrimonial tie so that they can rearrange
their lives well in time. We, therefore, in the spirit of Section 13-B of the
Act, and in view of the fact that all hopes to unite them together have gone,
hereby grant to the parties divorce by a decree of dissolution by mutual
consent to end their prolonged unhappiness. Ordered accordingly. The transfer
petition stands disposed of."
We have heard learned counsel for the parties. This Court adjourned the
proceedings from time to time to ensure that the parties may reconcile the
differences and live together again, but this has not happened. It is indeed
the obligation of the Court and all concerned that the marriage status should,
as far as possible, as long as possible and whenever possible, be maintained.
But as aptly observed by this Court, in a recent decision in Naveen Kohli v.
Neelu Kohli reported in 2006 (4) SCC 558, that when the marriage is totally
dead, in that event, nothing is gained by trying to keep the parties tied
forever to a marriage which in fact has ceased to exist.
In the instant case, we are fully convinced that the marriage between the
parties has irretrievably broken down because of incompatibility of
temperament. In fact there has been total disappearance of emotional substratum
in the marriage. The matrimonial bond between the parties is beyond repair. A
marriage between the parties is only in name. The marriage has been wrecked
beyond the hope of salvage, therefore, the public interest and interest of all
concerned lies in the recognition of the fact and to declare defunct de jure
what is already defunct de facto as observed in Naveen Kohli's case
(supra).
In view of peculiar facts and circumstances of this case, we consider it
appropriate to exercise the jurisdiction of this Court under Article 142 of the
Constitution Of India, 1950.
In order to ensure that the parties may live peacefully in future, it has
become imperative that all the cases pending between the parties are directed
to be disposed of. According to our considered view, unless all the pending
cases are disposed of and we put a quietus to litigation between the parties,
it is unlikely that they would live happily and peacefully in future. In our
view, this will not only help the parties, but it would be conducive in the
interest of the minor son of the parties.
On consideration of the totality of the facts and circumstances of the case, we
deem it appropriate to pass the order in the following terms:
a) The parties are directed to strictly adhere to the Terms of Compromise filed
before this Court and also the orders and directions passed by this Court;
b) We direct that the cases pending between the parties, as enumerated in the
preceding paragraphs, are disposed of in view of the settlement between the
parties;
and
c) All pending cases arising out of the matrimonial proceedings including the
case of restitution of conjugal rights and guardianship case 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 all those disputes in terms of the settlement.
These transfer petitions are accordingly disposed of. In the facts and
circumstances of the case, we direct the parties to bear their own costs.