PETITIONER:
ASHOK HURRA
Vs.
RESPONDENT:
RUPA ASHOK HURRARUPA BIPIN ZAVERI
DATE OF JUDGMENT: 10/03/1997
BENCH:
M.M. PUNCHHI, K.S. PARIPOORNAN
ACT
HEADNOTE
JUDGMENT
WITH
CIVIL APPEAL NO. ....1835......... OF 1997
(Arising out of SLP (C) No.6443 of 1995)
JUDGMENT PARIPOORNAN. J.
Special Leave granted in both cases. The main appeal is the one arising out of Special Leave Petition (C) No.20097 of 1996. The said appeal is filed against the judgment and order of the Gujarat High Court rendered in L.P.A. No.373 of 1996. The appellant in both the appeals is Sri Ashok G. Hurra (the husband) and the respondent in both the appeals is Rupa Ashok Hurra (the wife). We will deal with the facts in the main appeal which is covered by Special Leave Petition No.20097 of 1996. 2. The marriage between the appellant (husband) and the respondent (wife) was solemnized on 3.12.1970 according to the Hindu rites and custom at Ahmedabad. The couple have on issue. It seems difference of opinion cropped up between the parties. Presumably it persisted and so they could not stay together. On 30.6.1983, the wife left the matrimonial home. Thereafter, the couple started residing separately. On 21.8.1984, a joint petition for divorce was filed under Section 13B of the Hindu Marriage Act. It was signed by both the parties and both of them appeared before Court. Both of them are highly educated and intelligent and managing their own affairs and business. In the joint petition, it was averred that all the matters regarding ornaments, clothes and other movables were settled between them and the wife and renounced her right to claim maintenance. The parties simply sought a decree of dissolution of the marriage by mutual consent. 3. Under Section 13B(2) of the Hindu Marriage Act (hereinafter referred to as ‘the Act’), on a motion by both the parties, six months after the date of presentation of the petition under sub-section (1) of the Act, and not later than eighteen months, the Court, shall, after enquiry, pass a decree of divorce by mutual consent. On 4.4.1985, the husband alone moved an application praying for passing a decree of divorce. On this motion, the Court issued notice to the wife. It is seen than the hearing of the petition commenced on 15.4.1985. On that day, on the joint application of the advocates of both the parties, the case was adjourned. Subsequently, the case stood posted to various dates and for one reason or other, it got itself adjourned. In the meanwhile, attempts were made by the trial Judge to bring about reconciliation between the husband and the wife. But, it was not successful. Such attempts were made on 30.9.1985, 10.10.1985, 30.10.1985, 9.12.1985, 16.12.1985, 10.1.1986 etc. Most of the requests for adjournments were made jointly by the advocates appearing for the parties. In all such requests, mention was made that talks of compromise/settlement between the parties were going on. 4. On 27.3.1986, the wife filed an application withdrawing her consent for divorce. She prayed that petition for divorce by mutual consent may be dismissed. this submission was objected to by the appellant, denying the averments made in the application and also stating further that the wife has no right to revoke the consent which she has legally granted. The husband filed an affidavit-in-reply on 9.4.1986 and contended that the wife has no right to withdraw or revoke the consent after the period of 18 months. He also prayed that consistent with the prayer made in the joint Hindu Marriage Petition filed on 21.8.1984 a decree for divorce by mutual consent may be passed. The wife seems to have filed an objection thereto. 5. After hearing the parties, the learned City Civil Judge (the trial court) held that since consent to be accepted and, in this view, dismissed the petition for divorce by mutual consent. In the appeal filed by the husband, a learned single Judge of the Gujarat High Court in First Appeal No.1070 of 1987, by judgment dated 15.3.1996, after a review of the entire facts and the relevant law on the subject, came to the following conclusions:-
(1) that all the ingredients of
section 13B(1) of the Act were
satisfied when the petition was
filed;
(2) that for a period six months
thereafter the parties have
continued to live separate and have
not cohabited or stayed together as
husband and wife;
(3) that the wife withdrew here
consent after the expiry of period
of 18 months from the date of the
institution of the petition;
(4) that the revocation of consent
after the prescribed period under
section 13B(2), (18 months) by the
wife was not based on true or
correct ground but a false pretext,
ruse, or non-existent ground put
forward by her to justify
revocation of her consent;
(5) that under section 13B(2),
once the period of interregnum or
transitional period starting from
six months from the date of
presentation of the petition till
the expiry of the period of 18
months from the date of the
petition was over, and if the
petition is not withdrawn or
consent is not revoked in the
meantime, the Court shall pass a
decree and the limited enquiry t be
made under section 13B(2) is to the
effect that :
(i) the marriage has been
solemnised;
(ii) the averments made in the
petition, namely,
(a) that the parties have
separated for a period of one year
or more, and
(b) they have not been able to
live together; and
(c) that they have mutually
agreed that the marriage should be
dissolved." 6. On the basis of the above and in view of the fact that the marriage between the husband and wife has irretrievably broken down and reunion is not at all possible, the learned single Judge set aside the order passed in Hindu Marriage Petition No. 248 of 1984 dated 17.10.1986 by the trial court and passed the decree of dissolution of marriage from the date of the petition. 7. In the Letters Patent Appeal No. 373/96, filed by the respondent herein (the wife), a Division Bench of the Gujarat High Court, by judgment dated 9.9.1996, set aside the order of the learned single Judge and concluded thus:
"......the wife withdrew her
consent even before the trial court
could make an inquiry. The trial
court was, therefore, right in
dismissing the application
submitted under section 13B of the
Act. There is no requirement in law
that the party withdrawing consent
must give reasons or the withdrawal
must be based on reasonable
grounds. Irretrievable breakdown of
marriage by itself is nota
sufficient ground for dissolution
of a marriage, as held by the Apex
Court. In the result, we quash and
set aside the order passed by
learned single Judge granting
decree of dissolution of marriage
solemnized between the parties
herein and the order passed by the
trial court is restored. We direct
the Principal Judge, City Civil
Court, Ahmedabad to forthwith
assign HMP No.328 of 1994 filed by
husband to a learned Judge of that
court, with a request to dispose of
the petition within a period of two
months from the receipt of the
writ."
It is against the judgment of the Division Bench rendered in the Letters Patent Appeal No.373 of 1996, the husband, as appellant, filed this appeal after obtaining special leave. 8. Certain facts which are discernible from the records and have some impact in the decision to be rendered, deserve to be noticed, at this stage:
The learned single Judge in his judgment rendered in First Appeal No.1070 of 1987 has stated that the appellant/husband remarried with one Sonia on 18.8.1985 and a male child named Prasad was born out of the said wedlock. The respondent/wife filed a suit on 1.8.1994 in the City Civil Court for a declaration that the judgment and decree of the City Civil Court dated 17.10.1986 in Hindu Marriage Petition was still subsisting and that relation of appellant-husband with Sonia was illegal and that the child out of such marriage was illegitimate and that the appellant-husband should be restrained from describing Sonia as his wife. It also appears that on 15.9.1994 the appellant/husband filed another petition for dissolution of marriage against respondent/wife (HMP No. 328 of 1994) on the ground of unchastity of the respondent/wife alleging large number of pornographic relations which she is alleged to have with her father and other persons and also under Sec.13(1) alleging that the wife has for a continuous period of not less than two years immediately preceding the presentation of the petition deserted the husband. (Seeparagraphs 54 and 55 in F.A. No.1070 of 1987). Regarding the subsequent petition filed by the wife, the learned single Judge, in paragraph 56, has stated thus:
".........The allegations made
therein by each against the other
are so vulgar and centering round
the science of pornography that
this Court feels that detailed
reference to such facts would even
pollute the present matrimonial
proceeding. This Court has,
therefore, refrained itself from
making reference to such allegation
made in the subsequent petition by
the husband against wife and the
allegations made by the wife
against the husband in her reply.
Undoubtedly, a very strong feeling
and impression is created in the
mind of this Court that not only on
re-union or reconciliation between
the spouses was possible at any
stage after the institution of
petition for divorce by mutual
consent under sec.13B on 21.8.1984,
the parties were convinced that the
marriage was irretrievably broken.
This Court also finds that no
useful purpose would be served by
prolonging and/or procrastinating
the miseries of two spouses when
the very purpose of happy married
life was lost."
(emphasis supplied)
On 15th September, 1994, the appellant/husband also filed a criminal complaint under Section 497 and 498 read with Section 347 of the Indian Penal Code. The respondentwife filed a criminal complaint on 14th November, 1994 against the appellant/husband and Sonia under Section 494 of the Indian Penal Code on the ground that the second marriage of the husband with Sonia was bigamous marriage and was prohibited under Section 17 of the Act. 9. We heard counsel. 10. Mr. R.K. Jain, Senior Counsel, for the appellant submitted thus:
(1) The Trial Court erred in dismissing the joint application filed by the parties under Section 13B of the Act. The respondent/wife has no locus or competency to withdraw her consent after the period of 18 months specified in Section 13B(2) of the Act.
(2) The trial court as will as the Division Bench of the Gujarat High Court which heard the Letters Patent Appeal overlooked the crucial words occurring in Section 13B(1) and 13B(2) of the Act. Under Section 13B(1) of the Act, a petition for dissolution of marriage by a decree of divorce should be presented by both the parties together. But, under Section 13B(2), for making the motion for passing a decree, after the period of six months, both the parties need not be present. In this case, the joint petition for dissolution of marriage by a decree of divorce was presented by the husband and wife together in compliance with Section 13B(1) of the Act. All the three ingredients were satisfied when the joint petition was filed by the parties, namely, (a) that they have separated for a period of one year or more; (b) that they have not been able to live together and (c) that they have mutually agreed to dissolve the marriage. The motion for passing a decree was made after six months of the date of presentation of the petition by the husband for which the wife had notice and this is sufficient compliance of Section 13B(2) of the Act. Since the wife has not withdrawn her consent within the period of 18 months after the date of presentation of the petition, the trail court was obliged to pass a decree of divorce after hearing the parties.
(3) In any view of the matter, from the strained relationship between the parties for over 13 years, and the "Kilkenny fight" between the parties, who are educated persons, it is evident, that the marriage has irretrievably broken down with no chance of re-union and so this Court by taking into account, the totality of the facts and circumstances in this exceptional case, should pass a decree of divorce, with appropriate directions, in order to do complete justice in the matter. 11. On the other hand, Mr. Jaitley, senior Counsel for the respondent stated thus:
(1) It is true, that a joint petition for dissolution of marriage by the decree of divorce was made by both the parties together and the requirements of Section 13B(1) are satisfied. Under Section 13B(2) of the Act, in order to pass a decree after the period of six months, a motion should be made by both the parties. It is not so in this case. The motion was made only by the husband. It is incompetent.
(2) The respondent/wife had withdrawn the consent before the enquiry, at any rate, before the decree under Section 13B(2) could be passed. Consent for dissolution should be present at the time of filing the joint application as also on the date when the decree has to be passed. The expiry of 18 months from the date of filing of the petition is irrelevant.
(3) Notwithstanding the strained relationship between the parties and other factors urged to show that the marriage has broken down irretrievably, the conduct of the appellant/husband disentitles him to any relief. Indeed, when the proceedings were still pending in the trial court the appellant married a second time and got a male child. Thereby, he committed a wrong. He cannot take advantage of his own wrong, and cannot invoke the jurisdiction of this Court by urging it as a ground for passing a decree of divorce in order to do complete justice in the matter. 12. Counsel on both sides placed their respective interpretation of Section 13B of the Hindu Marriage Act. Section 13B of the Act reads as follows:
"13B. (1) Subject to the provisions
of this Act a petition for
dissolution of marriage by a decree
of divorce may be presented to the
district court by both the parties
to a marriage together, whether
such marriage was solemnized before
or after the commencement of the
Marriage Laws (Amendment ) Act,
1976 on the ground that they have
bee living separately for a period
of one year of more, that they have
not been able to live together and
that they have mutually agreed that
the marriage should be dissolved.
(2) On the motion of both the
parties made not earlier than
months after the date of the
presentation of the petition
referred to in sub-section (1) and
not later than eighteen months
after the said date, if the
petition is the said date, if the
petition is not withdrawn in the
meantime, the court shall, on being
satisfied, after hearing the
parties and after making such
enquiry as it thinks fit, that a
marriage has been solemnized and
that the averments in the petition
are true, pass a decree of divorce
declaring the marriage to be
dissolved with effect from the date
of the decree."
(emphasis supplied) 13. Mr. Jaitley, counsel for the respondent, heavily relied o the decision of this court in Sureshta Devi v. Om Prakash [1991(1) SCR 274 = AIR 1992 SC 1904] and contended that it is open to one of the parties at any time till the decree of divorce is passed to withdraw the consent given to the petition, and mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13B of the Act. Mutual consent should continue till the divorce decree is passed. It is positive requirement for the Court to pass a decree of divorce. Since this crucial or vital aspect is absent in this case, counsel argued that the matter is concluded and that it is unnecessary to consider the other aspects urged regarding Section 13B of the Act or to focus attention on the totality of the circumstance to consider whether any other appropriate order should be passed by this Court at this juncture. 14. On the other hand, counsel for the appellant Mr. Jain, contended that the actual issue involved in Sureshtra Devi’s case (supra ) was in a narrow compass, namely, whether the consent given can be unilaterally withdrawn. In that case, the consent was withdrawn within the period of 18 months and no question arose as to whether the consent can be withdrawn 18 months after the filing of the joint petition and so the decision is distinguishable. But the court considered the larger question as to whether it is open to one of the parties till the decree of divorce is passed, to withdraw the consent given to the position. The decision on the larger question is only obiter and the decision requires reconsideration. That apart, this Court has got the power to consider the totality of the circumstances, including the subsequent events, in order to do complete justice in the matter, which are the following :
The pendency of the proceedings for a long period of over 12 years, the acrimonious battle between the parties, the allegation and counter-allegations made by the parties, the fact that the marriage is dead or has broken down irretrievably without any chance or re-union between the parties, that continuance of the stalemate is only a futility leading to a tortious life for both and continued agony and that the parties are living separately for more than 13 years -- these should weigh with the Court to grant a decree for divorce by mutual consent under Section 13B of the Act and dissolve the marriage between them and give appropriate directions including provision of reasonable/adequate funds for the wife to have a decent living and it was indicated that a lump sum payment of Rs. 4/5 lakhs may be reasonable. Counsel also stressed the fact that in the joint petition filed for divorce, it is stated that all matters regarding ornaments, clothes, moveables, etc. were settled between the parties and the wife has renounced her right to claim maintenance and this should be taken into consideration. Counsel on both sides brought to out notice few decisions of the different High Courts and of this Court to substantiate their pleas. 15. We are of opinion that in the light of the fat situation present in this case, the conduct of the parties, the admissions made by the parties in the joint petition filed in Court, and the offer made by appellant’s counsel for settlement, which appears to be bonafide, and the conclusion reached by us on an overall view of the matter, it may not be necessary to deal with the rival pleas urged by the parties regarding the scope of Section 13B of the Act and the correctness or otherwise of the earlier decision of this Court in Sureshta Devi’s case (supra) or the various High Court decisions brought to our notice, in detail. However, with great respect to the learned Judges who rendered the decision in Sureshta Devi’s case (supra), certain observations therein seem to be very wide and may require reconsideration in an appropriate case. In the said case, the facts were :-
The appellant (wife) before this Court married the respondent therein on 21.11.1968. They did not stay together from 9.12.1984 onwards. On 9.1.1985, the husband and wife together moved a petition under Section 13B of the Act for divorce by mutual consent. The Court recorded statements of the parties. On 15.1.1985, the wife filed an application in the Court stating that her statement dated 9.1.1985 was obtained under pressure and threat. She prayed for withdrawal of her consent for the petition filed under Section 13B and also prayed for dismissal of the petition. The District Judge dismissed the petition filed under Section 13B of the Act. In appeal, the High Court observed that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal, however, would not take away the jurisdiction of the Court to dissolve the marriage by mutual consent, if the consent was other wise free. It was found that the appellant (wife) gave her consent to the petition without any force, fraud or undue influence and so she was bound by that consent. The issue that came up for consideration before this Court was, whether a party to a petition for divorce by mutual consent under Section 13B of the Act, can unilaterally withdraw the consent and whether the consent once given is irrevocable. It was undisputed that the consent was withdrawn within a week from the date of filing of the joint petition under Section 13B. It was within the time limit prescribed under Section 13B(2) of the Act. On the above premises, the crucial question was whether the consent given could be unilaterally withdrawn. The question as to whether a party to a joint application filed under Section 13B of the Act can withdraw the consent beyond the time limit provided under Section 13B(2) of the Act did not arise for consideration. It was not in issue at all. Even so, the Court considered the larger question as to whether it is open to one of the parties at any time till a decree of divorce is passed to withdraw the consent given to the petition. In considering the larger issue, conflicting views of the High Courts were adverted to and finally the Court held that the mutual consent should continue till the divorce decree is passed. In the light of the clear import of the language employed in Section 13B(2) of the Act, it appears that in a joint petition duly filed under Section 13B(1) of the Act, motion of both parties should be made six months after the date of filing of the petition and not later than 18 months, if the petition is not withdrawn in the meantime. In other words, the period of interregnum of 6 to 18 months was intended to give time and opportunity to the parties to have a second thought and change the mind. If it is not so done within the outer limit of 18 months, the petition duly filed under Section 13B(1) and still pending shall be adjudicated by the Court as provided in Section 13B(2) of the Act. It appears to us, the observations of this Court to the effect that mutual consent should continue till the divorce decree is passed, even if the petition is not withdrawn by one of the parties within the period of 18 months, appears to be too wide and does not logically accord with Section 13B(2) of the Act. However, it is unnecessary to decided this vexed issue in this case, since we have reached the conclusion on the fact situation herein. The decision in Sureshta Devi’s case (supra) may require reconsideration in an appropriate case. We leave it there. 16. Now we shall advert to the findings arrived at by the learned single Judge and the Division Bench in the letter Patent Appeal. In paragraph 56 of the judgment, the learned single Judge has found thus :
"Undoubtedly, a very strong feeling
and impression is created in the
mind of this Court that not only no
re-union or reconciliation between
the spouses was possible at any
stage after the institution of
petition for divorce by mutual
consent under Section 13B on
21.8.1984, the parties were
convinced that the marriage was
irretrievably broken. This Court
also finds that no useful purpose
would be served by prolonging
and/or procrastinating the miseries
of two spouses when the very
purpose of happy married life was
lost.
..................................
Parties have now resorted to
various civil and criminal
proceeding against each other."
(emphasis supplied)
Again in paragraph 59 of the judgment, the Court found thus:
"The fact situation which prevails
before this Court though not fully
comparable to the facts can be said
to be identical, the rupture in the
marital tie is created much earlier
and admittedly the parties have
started residing separately since
1983 and after full understanding
and consideration of facts they had
filed petition for divorce by
mutual consent in the year 1984.
The husband has thereafter
remarried Sonia and had a child out
of such wedlock. The wife has
thereafter filed Civil suit for
declaration about the status of
second wife and child born out of
such marriage and also criminal
complaint. The husband has also in
his turn filed petition of
dissolution of marriage and also a
criminal complaint. The fact that
there is no possibility of reunion
is clearly established and is in no
uncertain terms admitted by the
wife before the Court. The obvious
conclusion is that she has resolved
not only to live in agony but to
make life of her husband miserable
too. .... ..... .... ..... ....
.... In the fact situation
obtaining before this Court it can
safely conclude that the marriage
between the parties has been
irretrievably broken and that there
is no chance of their coming
together or living together."
(emphasis supplied)
Again in paragraph 72 of the judgment, the learned single Judge stated thus :
"However, in my opinion, in view of
the decisions of the Apex Court, in
the subsequent decisions, namely in
the case Chandrakala Menon v. Vipin
Menon (1993) 2 SCC 6; in the case
of V. Bhagat v. D. Bhagat (1994) 1
SCC 337; in the case of Chandrakala
Trivedi v. Dr. S.P. Trivedi (1993)
4 SCC 232; and in the case of
Romesh Chander v. Smt. Savitri (JT
1995 (1) SC 362) when the Court
come to the conclusion that the
marriage is irretrievably broken
and that there was no possibility
of reunion or reconciliation
between the parties and that
ingredient of Sec.23(1)(bb) were
non-existent; i.e. there was free
consent to a joint petition for
divorce by mutual consent by both
the parties, the Court can and
shall have to pass a decree for
dissolution of marriage by mutual
consent as the very legislative
intent behind enacting such a
provision would be rendered
meaningless if it would render the
provision to lead to position of
perpetuation or procrastination of
agonies and miseries of the
separated spouses despite the
realisation that no reconciliation
was possible."
(emphasis supplied) 17. In the Letters Patent Appeal, the Division Bench entered the following findings :-
(i) Irretrievable break down or
marriage is not a ground by
itself to grant a decree of
dissolution of marriage;
(ii) Even if a decree of
dissolution could have been
granted, it could not have
been granted from the date of
the petition, but it could
have been granted only from
the date of the decree;
(iii) In the facts and
circumstances of the case,
even if discretion is vested
in this Court, this Court
would not like to exercise the
discretion looking to the
conduct of the husband, i.e.
(1) remarriage during the
subsistence of the first
marriage and during the
pendency of the petition, (2)
participating in
reconciliation proceedings
knowing fully will that he
cannot accept appellant as his
wife any more as he has
remarried, and (3)
unnecessarily prolonging the
matter;
(iv) We would just say that this
Court has no power similar to
Article 142 of the
Constitution and even if
similar powers are conferred,
in the peculiar facts and
circumstances of the instant
case, it would not be proper
on our part to exercise such
powers;
(v) Summing up, we must say that
there is not a singly case
where the consent was
withdrawn before the stage of
inquiry and yet the Court
passed a decree of divorce
with effect from the date of
the application; there is not
a single case where either the
husband or wife marriage and
yet the Court has passed a
decree of dissolution of the
first marriage which would
benefit a party who has
committed a wrong. On the
contrary, the Apex Court has
refused to grant a decree on
the ground of irretrievable
break down of marriage as
during the pendency of the
appeal, husband remarried. The
paramount consideration should
be that a party who come to
the Court with clean hands
should be assisted. Power may
be exercised in favour of the
party who comes to the Court
with clean hands. 18. After considering the matter in detail, we find that the appellate Court has not disputed the following:
(a) the marriage between the
parties is dead and has
irretrievably broken down;
(b) there are allegations and
counter-allegations between
the parties and also
litigations in various courts
an no love is lost between
them;
(c) there is delay in the disposal
of the matter;
(d) the husband has married again
and has got a child; and
(e) the wife has not withdrawn her
consent lawfully given for a
period of 18 months and it is
not a case where the consent
given is revoked on the ground
that it is vitiated by fraud
or undue influence or mistake
etc.
(f) That the joint petition filed
in court by the parties stated
(a) that the parties have
settled all the matters and
the wife has renounced her
right to claim maintenance and
(b) what the parties prayed
for, was only a decree of
desolution of the marriage by
mutual consent. 19. It appears to us that the appellate Court was swayed by the fact that the appellant/husband has not come to court with clean hands; in that he married during the pendency of the proceeding. It may be, as expressed by the appellate Court that factors such as the marriage is dead and has broken down irretrievably, that there was no chance of reunion, that there were allegations and counter-allegations made by the parties, that the parties were residing separately for nearly 13 years -- each one of the above factors by itself (individually) may not afford a ground for divorce by mutual consent. 20. When the matter was pending in this Court, there were attempts to settle the matter. But, finally consel on both sides reported that there is no scope for settlement between the parties. 21. We are of the view that the cumulative effect of the various aspects in the case indisputably point out that the marriage is dead, both emotionally and practically, and there is no chance at all of the same being revived and continuation of such relationship is only for name-sake and that no love is lost between the parties, who have been fighting like "Kilkenny cats" and there is long lapse of years since the filing of the petition and existence of such a state of affairs warrant the exercise of the jurisdiction of this Court under Article 142 of the Constitution and grant a decree of divorce by mutual consent under Section 13B of the Act and dissolve the marriage between the parties, in order to meet the ends of justice, in all the circumstances of the case subject to certain safeguards. Appropriate safeguard or provision for the respondent/wife to enable her to have a decent living should be made. The appellant is a well to do person and is a Doctor. He seems to be affluent being a member of the medical fraternity. But his conduct during litigation is not above board. The suggestion or offer of a lump sum payment of rupees four to five lakhs, towards provision for wife, is totally insufficient, in modern days of high cost of living and particularly for a women of the status of the respondent. At least, a sum of about Rs.10,000/- p.m. will be necessary for a reasonable living. Taking into account all aspect appearing in the case, more so the conduct of the parties and the admissions contained in the joint petition filed in court, we hold that the respondent (wife) should be paid, a lump sum of rupees ten lakhs (Rs.10 lakhs) (and her costs in this litigation as estimated by us) on or before 10.12.1997 as mentioned hereinbelow, as a condition precedent for the decree passed by this Court to take effect. 22. There is no useful purpose served in prolonging the agony any further and the curtain should be rung at some stage. In coming to the above conclusion, we have not lost sight of the fact that the conduct of the husband is blameworthy in that he married a second time and got a child during the pendency of the proceedings. But that factor cannot be blown out of proportion or viewed in isolation, nor can deter this Court to take a total and broad view of the ground realities of the situation when we deal with adjustment of human relationship. We are fortified in reaching the conclusion aforesaid by a decision of this Court reported in Chandrakala Menon v. Vipin Menon [(1993) 2 SCC 6]. Earlier decisions of this Court in Chandrakala Trivedi v. Dr. S.P. Trivedi [(1993) (4) SCC 232]; V. Bhagat v. D. Bhagat [(1994) 1 SCC 337] and Romesh Chander v. Smt. Savitri [JT 1995 (1) SC 362] also afford useful guidelines in the matter. 23. A few excerpts from the Seventy-first Report of the Law Commission of India on the Hindu Marriage Act, 1955 -- "Irretrievable breakdown of marriage" -- dated April 7, 1978 throw much light on the matter:
"Irretrievable breakdown of
marriage is now considered, in the
law 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 re-unite the
parties. It is stated that one 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
appearance 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 circumstance, it is
stated, there is hardly any utility
in maintaining the marriage as a
facade, when 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 n 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 -- "breaking" -
- and if it continues for a fairly
long period, it would indicate
destruction of the essence of
marriage -- "irretrievable
breakdown." 24. S.L.P. No.6443 of 1995 was filed earlier by the appellant herein praying that this Hon’ble Court may be pleased to invoke Article 142 of the Constitution of India and pass appropriate orders granting a decree of divorce. The Special Leave Petition was filed against the order of a single Judge of the Judge of the Gujarat High Court in Civil Application No.949 of 1995 dated 17.2.1995 dismissing the application of the appellant for granting a decree of divorce in respect of the marriage between the appellant and the respondent. It is unnecessary to advert to the facts stated therein and other matter since consideration of the appeal arising out of S.L.P. No.6443 of 1995 has become academic and unnecessary in view of the final order passed in the main appeal. hold accordingly. No separated orders are necessary the Civil Appeal arising out of S.L.P. No.6443/95. 25. The appeal (filed from S.L.P.20097/96) is allowed. Subject to the fulfilment of the following conditions, a decree of divorce for dissolution of marriage by mutual consent solemnized between the appellant and the respondent is passed under Section 13B of the Act. It is made clear that the decree is conditional and shall take effect only on payment or deposit in this Court of the entire sum of rupees ten lakhs by the appellant to the respondent, as ordered herein and also the cost as assessed below on or before 10.12.1997. The appellant shall pay or remit the amounts ordered before the said date, in two instalments - a sum of Rs.5 lakhs + Rs.50,000/- (the assessed cost) as ordered hereinbelow, on or before 10.8.1997 and the balance of Rs. 5 lakhs (rupees five lakhs) on or before 10.12.1997. The assessed costs required to be paid by the appellant shall be Rs.50,000/- towards the entire proceeding to the respondent. If default is made in the payment of the instalment due on 10.8.1997 together with cost, then also, this decree shall not take effect and the appeal shall stand dismissed. If the amounts ordered herein are duly deposited in this Court by the appellant, the respondent can withdraw the said amounts, without further orders. We further declare and hold that all pending proceedings, more particularly referred to in para 8 of this judgment, including the proceeding under Section 494 IPC read with Section 17 of Hindu Marriage Act, 1955 between the parties shall stand terminated, but only on payment or deposit of the amounts ordered by us in this judgment. This is made clear.
The appeal are disposed of in the above terms.