SUPREME COURT OF INDIA
Rishikesh Sharma
Vs
Saroj Sharma
C.A. No..............Of 2006 (Arising Out of S.L.P. (C) No. 17407 of 2005)
(Dr. Ar. Lakshmanan and Tarun Chatterjee, JJ)
21.11.2006
DR. AR. LAKSHMANAN, J.
1. Leave granted.
2. The husband is the appellant before us. The respondent is his wife. They got
married according to the Hindu rites and customs in the year 1972. After three
years of marriage a daughter was born of the wedlock. Because of the
misunderstanding between them the respondent started living separately from her
husband from the year 1981 onwards and is working in the Social Forestry
Department. The respondent also filed several criminal proceedings against her
husband with which we are not concerned in this Appeal.
3. In the year 1989 the appellant filed a Petition for a decree of dissolution
of marriage on the ground of mental cruelty and the respondent having deserted
him without any reasonable cause. The District Judge, Gwalior, dismissed the
Petition filed by the husband for dissolution of the marriage. The Appellant
filed a First Appeal in the High Court under Section 28 of the Hindu Marriage
Act. The High Court also dismissed the Appeal of the appellant. The appellant
has therefore questioned the correctness of the order passed by the High Court
in the above Appeal.
4. We heard Mr. A.K. Chitale, learned Senior Counsel and Mr. S.S. Dahiya,
learned counsel for the respondent and perused the judgment passed by both the
Trial Court and also of the High Court. It is not in dispute that the
respondent is living separately from the year 1981. Though the finding has been
rendered by the High Court that the wife last resided with her husband up to
25.3.1989, the said finding according to the learned counsel for the appellant
is not correct. In view of the several litigations between the parties it is
not possible for her to prosecute criminal case against the husband and at the
same time continue to reside with her husband. In the instant case the marriage
is irretrievably broken down with no possibility of the parties living together
again. Both the parties have crossed 49 years and living separately and working
independently since 1981. There being a history of litigation with
respondent-wife repeatedly filing criminal cases against the appellant which
could not be substantiated as found by the Courts. This apart, only child born
in the wedlock in 1975 has already been given in marriage. Under such
circumstances the High Court was not justified in refusing to exercise its
jurisdiction in favour of the appellant. This apart, the wife also has made
certain allegations against her husband that the husband has already remarried
and is living with another lady as stated by her in the written statement. The
High Court also has not considered the allegations made by the respondent which
have been repeatedly made and repeatedly found baseless by the Courts.
5. In our opinion it will not be possible for the parties to live together and
therefore there is no purpose in compelling both the parties to live together.
Therefore the best course in our opinion is to dissolve the marriage by passing
a decree of divorce so that the parties who are litigating since 1981 and have
lost valuable part of life can live peacefully in remaining part of their life.
6. During the last hearing both the husband and wife were present in Court.
Husband was ready and willing to pay lumpsum by way of permanent alimony to the
wife. The wife was not willing to accept the lumpsum but however expressed her willingness
to live with her husband. We are of the opinion that her desire to live with
her husband at this stage and at this distance of time is not genuine.
Therefore, we are not accepting this suggestion made by the wife and reject the
same.
7. In the result, the Appeal filed by the husband stands allowed. There will be
a decree of dissolution of marriage in favour of the husband. No costs.
J