In so far as the daughter’s expenses for education and
marriage are concerned, it appears from her approach that
she does not want to maintain any relationship with the
appellant and is about 20 years of age. She is entitled to
choose her own path but then cannot demand from the
appellant the amount towards the education. We, thus, hold
that the daughter is not entitled to any amount but while
determining the amount to be paid as permanent alimony to
the respondent, we are still taking care to see that if the
respondent so desires to support the daughter, funds are
available.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.5141/2011
AJAY KUMAR RATHEE Vs SEEMA RATHEE
Dated: 10th MARCH, 2022.
A marriage was solemnized inter-se the parties on
29.4.1998 at Rohtak as per Hindu rites, the parties resided
together and the marriage was consummated. A daughter named
Jyotsana was born on 20.2.2001. It is the case of the
appellant that the respondent has been residing not with the
appellant but in her father’s home after he passed away on
8.12.2002. A panchayat was convened on two separate
occasions but it is the case of the appellant that the
respondent refused to live with him in Ganaur. The appellant
thus filed a petition for restitution of conjugal rights
under Section 9 of the Hindu Marriage Act, 1955 but the same
was dismissed on default on 07.10.2004.
We may note the case of the respondent was that the
appellant had thrown her out of the matrimonial home in
October 2004 after assaulting her. There was a demand of
dowry by the appellant and her family, and she was harassed
and tortured. The daughter has been throughout living with
the respondent since birth, and thus the divorce petition.
The aforesaid respective stands are reflected from the
pleadings of the parties in a divorce petition filed by the
appellant under Section 13 of Hindu Marriage Act,1955 on
grounds of desertion. The petition was tried. The learned
Addl. District Judge, Sonipat found that no reconsideration
was possible and there was no documentary or other evidence
to prove the dowry demand.
The respondent aggrieved by the same preferred an
appeal before the High Court which has been allowed by the
impugned judgment dated 08.9.2009. On the appellant
preferring the special leave petition, notice was issued and
endeavor was made to resolve the dispute between the parties
through Delhi Mediation Center in 2011 but nothing worked
out and leave was granted on 04.7.2011.
On the appeal being taken up for hearing on 28.9.2021,
learned counsel for the parties stated that the parties are
staying separately since 2002/ 2004 and that the parties
will endeavor to work out a settlement and thus sought
deferment of hearing.
On 05.10.2021, learned counsel for the respondent
reported back stating that he had instructions that the
respondent was not averse to a mutual consent divorce with
the Court invoking its powers under Article 142 of the
Constitution of India, without admitting the allegations
made by the appellant while filing the divorce petition. We,
however, put two caveats to it:
(a)the maintenance for the last 10 months fixed by
the trial Court of Rs.8,000/- per month has not
been paid.
(b)the sole child-daughter, has got admission to a
college and the appellant must bear expenses
for her education.
Learned counsel for the appellant assured that the
arrears would be cleared and also agreed to submit his
salary bills along with an affidavit setting out his assets
which he owns privately, apart from his salary slip, to work
out the financial terms of the separation. The respondent
was also asked to do the same. We flagged the issue of
financial emoluments to be received by the respondent and
the issue of the daughter’s education and marriage. In order
to develop and encourage a rapport between the daughter who
is 20 years of age and the appellant, we requested learned
counsel for the respondent to arrange a meeting between the
two in the meantime.
On the next date of hearing, i.e. 27.10.2021, we
referred the matter to the Supreme Court Mediation Center to
work out a formal settlement and for the daughter to join
the mediation proceedings.
The mediation report, however, came from the Mediator
of an unsuccessful endeavor, as recorded by us on
07.12.2021. We had observed that the daughter, who is now
aged about 20 years, would have to develop some interaction
with the appellant-father if she wants him to play a role in
her education. At the request of parties the matter was
again referred to mediation but the report was one of
failure and as per the learned counsel for the appellant, it
became acrimonious and unpleasant in terms of the
telephonic conversations, as recorded in our order dated
22.2.2022. We, thus, directed the matter to be put on the
regular board in the week commencing 08.3.2022.
None appeared for the respondent in the pre-lunch
session or in the post-lunch session. We have thus heard
learned counsel for the appellant and perused the records.
On analysis of the impugned judgment what transpires is that
the High Court has reversed the findings of the trial Court
predicated on a reasoning that the only reliable evidence
was of the appellant as PW-1 against that of the respondent.
We are faced with the scenario of failed marriage at
least since 2004, if not since 2002 i.e., 18 years have
passed and thus the chances of any reconciliation are
impossible, more so in view of what has recently transpired
during the mediation process.
Learned counsel for the appellant submits that dehors
the divorce on ground of desertion, what he pleads now is
that in any case a decree of divorce is liable to be granted
on account of irretrievable breakdown of marriage by this
Court invoking the jurisdiction under Article 142 of the
Constitution of India.
Learned counsel has referred to a number of judgments1
in this behalf to advance the proposition that where the
parties have been living apart from a long period of time
and all endeavor to save the marriage has failed, the Courts
can dissolve a marriage as irretrievably broken down.
We have also taken note of Sukhendu Das V. Rita
1Sivasankaran V. Santhimeenal, C.A. No.4984-4985
Mukherjee 2, in which it is concluded that it is not open
for the wife to contend that unless both parties consent,
the exercise of jurisdiction under Article 142 of the
Constitution of India for dissolving a marriage may not be
appropriate.
In the present case, however, we have noticed the stand
of the respondent in earlier proceedings that she was not
disagreeable to the grant of a decree of divorce on account
of irretrievable breakdown of marriage, without admitting
the allegations made by the appellant against her in the
divorce petition. This is of course subject to the two
caveats referred to aforesaid.
The endeavor to settle the matter has not succeeded
right from the family Court which took an active approach
to endeavor reconciliation, but unsuccessfully.
The legal position emanating from various judgments
does say that the Supreme Court can in special circumstances
pass appropriate orders to do justice to the parties in a
given factual scenario by invoking the powers under Article
142 of the Constitution of India and this was to the extent
of granting a decree of divorce by mutual consent3.
2 (2017) 9 SCC 632, (2017) 4 SCC (Civ) 714
3 Soni Kumari v. Deepak Kumar, (2016) 16 SCC 346
Shilpa Sailesh v. Varun Sreenivasan, (2016) 16 SCC 352
Durga Prasanna Tripathy v. Arundhati Tripathy, (2005) 7 SCC 353
Geeta Jagdish Mangtani v. Jagdish Mangtani (2005) 8 SCC 177
We are unequivocally of the view that nothing really
subsists in this marriage except mutual accrimony. It is not
even possible for the parties to sit across the table or to
even talk over telephone to come to a reasonable
understanding. There remains no doubt about irretrievable
breakdown of marriage in the facts of the present case.
Thus, we are inclined to exercise our jurisdiction under
Article 142 of the Constitution of India by granting a
decree of divorce on the said ground.
The only question would be as to what should be the
terms and conditions of divorce, looking to the financial
status of the parties.
We have perused the affidavit of the respondent which
states that she has practically no money and means, and
lives with her brother who is supporting her and her
daughter’s education.
We have also perused the affidavit of the appellant
with documents insofar as his financial status is concerned.
The appellant is working as a Wireless
Operator in the Indian Coast Guard and his monthly income
after deduction is Rs.42,492/-. However, amongst the
deductions, he has claimed is a voluntary GPF subscription
of Rs.35,000/- which cannot be considered for the purposes
of determining the amounts in the hands of the appellant. If
that amount is added, the total emoluments of the appellant
would amount to about Rs.78,000/- per month.
The appellant is about 52 years of age and thus would
continue for the next few years till the age of 57 years.
The appellant has also stated that he has 1/8th share
along with his mother, three sisters and four brothers in
the joint ancestral agricultural land measuring 3.5 acres
approximately in village Rajpura, Tehsil Gannaur, District
Sonipat, Haryana, which has not been partitioned. Similarly
he has 1/8th share in the joint ancestral house measuring
250 Gaj approximately in the same village. He has also
mentioned that he owns a house measuring 107 Gaj in Gannaur,
District Sonipat, Haryana wherein his mother is presently
residing, and that he owns a plot measuring 100 Gaj in the
same district. The appellant has three saving bank accounts
which show balances of a little over Rs.9,00,000/-. The
interim maintenance is stated to have been paid till
September, 2021 as per the aforesaid affidavit.
In so far as the daughter’s expenses for education and
marriage are concerned, it appears from her approach that
she does not want to maintain any relationship with the
appellant and is about 20 years of age. She is entitled to
choose her own path but then cannot demand from the
appellant the amount towards the education. We, thus, hold
that the daughter is not entitled to any amount but while
determining the amount to be paid as permanent alimony to
the respondent, we are still taking care to see that if the
respondent so desires to support the daughter, funds are
available.
In view of the aforesaid factual matrix, we consider it
appropriate to fix the permanent alimony of the respondent,
at present being paid at Rs.8,000/- per month as interim
maintenance, at Rs.10,00,000/- in full and final settlement
of all claims. The amount be deposited in this Court within
two months from today and would be released to the
respondent. If the amount is not sought for a period of one
month from the date of deposit, it will be kept in FDR
earning interest for a period of 91 days to be kept renewed.
In the conspectus of the aforesaid, we grant decree of
divorce on account of irretrievable breakdown of marriage
between the parties exercising our jurisdiction under
Article 142 of the Constitution of India, subject to the
deposit of costs of Rs.10,00,000/- by the appellant.
A decree of divorce be accordingly drawn up and be
released to the appellant on the deposit of the amount.
9
Civil appeal stands allowed, leaving parties to bear
their own costs.
.................J.
(SANJAY KISHAN KAUL)
.................J.
(M.M. SUNDRESH)
NEW DELHI;
10th MARCH, 2022
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