Saturday, 28 October 2017

Whether refusal of wife to participate in divorce proceeding amounts to mental cruelty?

Mr. Raja Chatterjee, learned counsel appearing for the
Appellant submitted that the Respondent deserted the
Appellant about 17 years back and she refused to come back
and live with him. Apart from the allegation of desertion, the
learned counsel also alleged mental cruelty on the part of the
Respondent who threatened the Appellant in the year 2005
that she would get a criminal case filed against him if he did
not stop attempts to get the divorce. The learned counsel
further submitted that the Appellant and the Respondent
have been living apart due to matrimonial discord since 17
years and for all practical purposes the marriage has broken
down.
7. The Respondent, who did not appear before the trial
court after filing of written statement, did not respond to the
request made by the High Court for personal appearance. In
spite of service of Notice, the Respondent did not show any
interest to appear in this Court also. This conduct of the
Respondent by itself would indicate that she is not interested
in living with the Appellant. Refusal to participate in
proceeding for divorce and forcing the appellant to stay in a
dead marriage would itself constitute mental cruelty [Samar
Ghosh v. Jaya Ghosh1
]. The High Court observed that no
attempt was made by either of the parties to be posted at the
same place. Without entering into the disputed facts of the
case, we are of the opinion that there is no likelihood of the
Appellant and the Respondent living together and for all
practical purposes there is an irretrievable breakdown of the
marriage.
8. This court in a series of judgments has exercised its
inherent powers under Article 142 of the Constitution for
dissolution of a marriage where the Court finds that the
marriage is totally unworkable, emotionally dead, beyond
salvage and has broken down irretrievably, even if the facts
of the case do not provide a ground in law on which the
divorce could be granted NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL No. 7186 of 2016
V  R
Dated:OCTOBER 09, 2017.

1. The Appellant and the Respondent are District Judges
working in the State of West Bengal. Their marriage was
performed on 19th June, 1992 as per the Special Marriage Act,
1954 (hereinafter referred to as “the Act”). A girl child was
born out of the wedlock on 14th April, 1993. There was
matrimonial discord between the Appellant and the
Respondent and they were living separately since the year
2000. The Appellant filed an application under Section 27 of
the Act seeking a divorce.
2. The Appellant alleged that the differences arose because
of the improper behavior of the Respondent in not showing
due respect to his ailing father. It was further alleged that the
1Respondent deserted him and refused to give the custody of
the child to him. The Appellant further averred in the
application that the Respondent did not visit him even when
he was seriously ill. The Respondent is accused of using
intemperate language and threatening the Appellant with
filing of criminal cases if he perused the petition for divorce
which he proposed in the year 2005.
3. The Respondent filed a written statement denying the
allegations made in the application filed by the applicant for
divorce. She refuted all the averments in the application and
sought for dismissal of the application for divorce. The
Respondent did not participate in the proceedings before the
trial court after filing the written statement. The Chief Judge,
City Civil Court, Calcutta by the judgment dated 6th August,
2009 dismissed the application for divorce. The Appeal filed
against the said judgment was dismissed by the High Court of
Calcutta on 4th April, 2012. The Respondent did not seek to
appear before the High Court also. The correctness of the
judgment of the High Court is assailed in the above Appeal.
4. After referring to the pleadings in the case, the trial
court found that the Appellant failed to prove cruelty on the
2part of the Respondent. The evidence adduced by the
Appellant was scrutinized by the trial court to come to a
conclusion that the Appellant did not make out a case for
divorce. The High Court, taking note of the fact that the
Appellant and the Respondent are judicial officers, made an
attempt for conciliation between the parties. However, in
spite of the effort of the High Court, both the Appellant and
the Respondent did not appear personally before the High
Court. Despite taking note of the fact that the Appellant and
the Respondent were living separately since the year 2000,
the High Court dismissed the Appeal by holding that
irretrievable breakdown of marriage cannot be a ground for
divorce. The High Court held that the Appellant failed to
prove mental cruelty on the part of the Respondent.
5. Notice was issued to the Respondent on 8th October,
2012 to explore the possibility of an amicable resolution to
the matrimonial dispute. The parties were directed to appear
before the Mediation Centre of the Supreme Court on 21st
November, 2012. The Respondent did not appear before the
Mediation Centre in spite of service of the Notice. She chose
not to appear before this Court. Fresh Notice was ordered on
317th August, 2015 but the Respondent did not appear in spite
of receipt of Notice again.
6. Mr. Raja Chatterjee, learned counsel appearing for the
Appellant submitted that the Respondent deserted the
Appellant about 17 years back and she refused to come back
and live with him. Apart from the allegation of desertion, the
learned counsel also alleged mental cruelty on the part of the
Respondent who threatened the Appellant in the year 2005
that she would get a criminal case filed against him if he did
not stop attempts to get the divorce. The learned counsel
further submitted that the Appellant and the Respondent
have been living apart due to matrimonial discord since 17
years and for all practical purposes the marriage has broken
down.
7. The Respondent, who did not appear before the trial
court after filing of written statement, did not respond to the
request made by the High Court for personal appearance. In
spite of service of Notice, the Respondent did not show any
interest to appear in this Court also. This conduct of the
Respondent by itself would indicate that she is not interested
in living with the Appellant. Refusal to participate in
proceeding for divorce and forcing the appellant to stay in a
dead marriage would itself constitute mental cruelty [Samar
Ghosh v. Jaya Ghosh1
]. The High Court observed that no
attempt was made by either of the parties to be posted at the
same place. Without entering into the disputed facts of the
case, we are of the opinion that there is no likelihood of the
Appellant and the Respondent living together and for all
practical purposes there is an irretrievable breakdown of the
marriage.
8. This court in a series of judgments has exercised its
inherent powers under Article 142 of the Constitution for
dissolution of a marriage where the Court finds that the
marriage is totally unworkable, emotionally dead, beyond
salvage and has broken down irretrievably, even if the facts
of the case do not provide a ground in law on which the
divorce could be granted [Manish Goel v. Rohini Goel2
].
Admittedly, the Appellant and the Respondent have been
living separately for more than 17 years and it will not be
possible for the parties to live together and there is no
purpose in compelling the parties to live together in
1 (2007) 4 SCC 511 [para101 (xiv)]
2 (2010) 4 SCC 393 [para 11]
5matrimony [Rishikesh Sharma v. Saroj Sharma3
]. The
daughter of the Appellant and the Respondent is aged about
24 years and her custody is not in issue before us. In the
peculiar facts of this case and in order to do complete justice
between the parties, we allow the Appeal in exercise of our
power under Article 142 of the Constitution of India, 1950.
9. For the aforementioned reasons, the Appeal is allowed
and the application for divorce filed by the Appellant under
Section 27 of the Act is allowed.
 .................................J.
 [S.A. BOBDE]
.................................J.
 [L. NAGESWARA RAO]
NEW DELHI;
OCTOBER 09, 2017.
3 (2007) 2 SCC 263 [para 4 and 5]

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