Satendra Kumar Gupta vs Smt. Kanchan Gupta & Others
2015 Latest Caselaw 489 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 
Case :- FIRST APPEAL No. - 542 of 2006
 
Appellant :- Satendra Kumar Gupta
 
Respondent :- Smt. Kanchan Gupta & Others
 
Counsel for Appellant :- Akhilesh Misra,A.K. Gupta,Abhilash Misra,Ashok Tripathi,K.R.Sirohi
 
Counsel for Respondent :- N.L. Srivastava,Arvind Kumar,H.P.Mishra,K.K.Mishra,V.K.Birla,Vijay Kumar Rai
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Dinesh Gupta,J.

1. This appeal under Section 19 of Family Courts Act, 1984 (hereinafter referred to as "Act, 1984") has come up against judgement and decree dated 27.9.2006 passed by Principal Judge, Family Court, Gorakhpur, dismissing the Suit No.54 of 2003 filed by appellant under Section 13 of Hindu Marriage Act, 1955 (hereinafter referred to as "Act, 1955"), seeking a decree of divorce on the ground of cruelty.

2. Brief facts giving rise to this appeal are that :

Plaintiff-appellant (hereinafter referred to as "appellant") filed a suit under Section 13 of Hindu Marriage Act,1955 (hereinafter referred to as "the Act") against defendants-respondents (hereinafter referred to as "respondents"), which was registered as Family Suit No.54 of 2003.

As per allegations made in the plaint, marriage between appellant and respondent was solemnized in accordance with Hindu rites and customs on 10.12.1999.

After marriage, respondent remained with appellant's house only for few days and during the said stay, brother and father of respondent also came to meet her. Respondent was reluctant in consummation of marriage and her behaviour against appellant as well as his family members was very bad and cruel and appellant could not succeed in consummation of marriage during above said period. The behaviour of respondent remained cruel with family of appellant and appellant remained under mental tension due to non consummation of marriage with the respondent.

Respondent became pregnant during this period. However, respondent was not happy with pregnancy as she was not interested having a child at this stage and asking appellant and his family to send her parents house. Appellant and his family members tried to keep her in their house and they were also under impression that if she was send to her parent's house, she will make effort to get the child abort. Due to this fact, the behaviour of respondent with appellant and his family members became more cruel and hostile and she started querelling with appellant as well as other family members and in order to cause physical and mental cruelty, respondent started using abusive language against them and when appellant and his family members tried to talk to the parents of respondent regarding her misbehaviour and conduct instead of giving any advice to respondent, parents of respondents encouraged the respondent. They also pressurized the appellant to send the respondent to her parents house. In order to keep peace, appellant send respondent to her parent's house on the occasion of Rakshabandhan and respondent left the house of appellant and took all jewellery and cash alongwith with her.

After Rakshabandhan, appellant tried to take the respondent to her house but she refused to come back. The appellant was forced to serve a notice through registered post to respondent and ask her to come back.

Inspite of receiving notice, respondent refused to come back and also sent a wrong reply of notice, through her counsel. Appellant tried to convene meeting of reasonable persons of his community and respondent was also invited in the said meeting alongwith her parents. During the course of meeting, respondent and her parents refused to accept the decision taken and left meeting in midway. Later on, respondent refused to accept decision rendered in the said meeting. The respondent also refused to come back to her in-laws-house and filed a frivolous suit in the Family Court against appellant on the false allegations of demand of dowry.

Respondent also moved a complaint in local police station. The appellant and his parents were harassed by local police. Due to above act of respondent, appellant suffered a lot of mental and physical torture. In order to save his parents, appellant forcibly accepted proposal to keep respondent with him. The respondent promised that she will come to the appellant's house. However, she did not turn-up and on the contrary, filed a suit for maintenance under Section 125 Cr.P.C.

Respondent finally refused to come with appellant. All these acts of respondent caused serious physical and mental cruelty to appellant and appellant became sick and gone under depression.

When marriage of two brothers of appellant settled, In-laws of of appellant and respondent pressurized appellant to take back respondent with him. In order to keep peace in family, appellant agreed and respondent came back to house of appellant in order to attend marriage of two brothers of appellant. However, immediately after marriage, she again left house of appellant and want back after a few days. Her medical condition was not good. She had bleeding from her body due to wrong fixation of Copper-T. When she was shown to gynaecologist, was advised to remove the same to which she refused.

Even after return to house of appellant, she refuse to cohabit with appellant and also used abusive language against appellant and his family members.

After sometime, respondent again left house of appellant and gone to her parent's house and also lodged a forged complaint against appellant and his family members. The appellant's family suffered a lot due to above illegal act of respondent. All these acts of respondent caused mental and physical cruelty of the appellant, which totally ruined life of appellant. Hence, appellant left with no option but to file the suit of divorce under Section 13 of Hindu Marriage Act.

3. Respondent appeared in suit and filed her written statement. She denied all allegations made in the plaint except solemnization of marriage. Respondent in her additional plea submitted that soon after the marriage, behaviour of appellant was very cruel against her. The appellant demanded a Indica Car and when she and her family showed them inability to accept the demand of Car, she was assaulted by appellant. Respondent never refused to cohabit with appellant. On the contrary when respondent became pregnant, it was appellant and his family members, who forced respondent to abort the child. When respondent refused to accept illegal demands of appellant, she was thrown out from the house. Ultimately she gave birth to a male child in her parents house on 26.10.2000 in Tiwari Nurshing Home, Rajendra Nagar, Gorakhpur. Appellant and his family members were invited after birth of male child. However, appellant and his family members refused to see the face of child.

4. Respondent further stated that a Car was given to appellant at the time of marriage. However, appellant sold the car and illegally demanded Indica Car and also sent a wrong notice, which was rightly replied by respondent. All allegations regarding misbehaviour and conduct of respondent are wrong and false. On the contrary, the behaviour of appellant and is family members was very cruel with respondent. All allegations were made in order to break the marriage. Appellant and his family members wanted to take divorce on frivolous ground in order to perform second marriage of appellant. On the contrary, respondent was willing and ready to live with appellant and it was only the appellant, who refused to keep her with him and ultimately, respondent was forced to file suit before Family Judge. She also filed a maintenance suit. However, when appellant assured that he will keep her children, the parties entered into a compromise. In Suit No.255 of 2001, Family Court restrained appellant from performing second marriage, whereupon appellant and his family members became annoyed and threatened her to face dire consequence. In order to save herself, respondent again moved a complaint before Superintendent of Police, Gorakhpur and on the basis of said complaint, police personnel called both the parties and amicably a settlement arrived between them. Appellant himself was not interested in having second child. Appellant also pressurized respondent to give in writing to Court regarding allegations made by respondent that all these allegations were false. When respondent refused, she was pressurized to do so. However, there were again a settlement arrived between appellant and respondent hence she again went to house of appellant.

5. It is further contended that it is false that respondent refused to come to house of appellant. On the contrary, at the time of marriage of both brothers of appellant, respondent attended both marriages. It was appellant who took her back to his house. The behaviour of appellant against respondent was so cruel that he mentally and physically tortured respondent and on several occasions, she was assaulted by appellant. In the said assault, she sustained fracture in spinal bone and when she informed about this assault to her parents, appellant again tried to pressurize the respondent not to proceed further against this assault. All the allegations regarding abusive language used by respondent are false. She never used abusive language against husband as well as his family members. Respondent with full devotion and sincerity tried to save her married life and taken all steps to protect her marriage life. However, appellant and his family members tried to disturb marriage life of appellant and respondent in order to perform second marriage and to obtain further heavy dowry.

6. Lastly, respondent stated that all allegation made in the plaint are false and frivolous. On the contrary, respondent never treated the appellant with physical or mental. It was the appellant whose behaviour against respondent was cruel. However, respondent still wants to stay with appellant.

7. Appellant filed replication and denied all allegations made by the respondent in her written statement and further reiterated the allegations made in the plaint.

8. On the basis of pleadings of parties, Family Court framed following issues:

1& D;k izfroknh dk O;ogkj oknh ds izfr dzwjrk;qDr gS fd oknh izfrokfnuh ds lkFk ugha jg ldrk gS\

2& D;k izfrokfnuh us ;kph dks cxSj fdlh ;qfDr;qDr dkj.k ds ifjR;kx dj j[kk gS\

3&D;k oknh us Jherh vkjrh xqIrk ds lkFk fof/k fo:) nwljk fookg dj fy;k gS\

4& D;k Jherh dapu dk uktk;t lEcU/k vius ek;ds esa fdlh vU; O;fDRk ls gS tSlk fd okni= esa dgk x;k gS\

5& D;k oknh o mlds ifjokj okys izfrokfnuh la0 1 dks ngst dh ekWx ds fy, izrkfM+r djrs gSa\

6& ;g fd oknh o mlds ifjokj okyksa ds }kjk izfrokfnuh la0 1 ds lkFk bruk dzwjrk dh x;h fd mldk thou fuokZg oknh ds lkFk gksuk lEHko ugh gS\

7& D;k izfrokfnuh la01 vius o vius cPps ds Hkj.k iks"k.k ds fy, ekWxh x;h /kujkf'k ikus dh vf/kdkfj.kh gS\

8& D;k oknh fdlh vU; vuqrks"k dks ikus dk vf/kdkjh gS\

1. Whether the behaviour of the defendant is so cruel against the plaintiff that he cannot live with the defendant ?

2. Whether the defendant has deserted the plaintiff without any reasonable ground ?

3. Whether the plaintiff has unlawfully entered into second marriage with Smt. Arati Gupta ?

4. Whether Smt. Kanchan, as mentioned in the plaint, has any illicit relationship with someone at her parent's place ?

5. Whether the plaintiff and his family members are harassing the defendant no. 1 over the demand of dowry ?

6. Whether the plaintiff and his family members resorted to so much cruelty with the defendant no. 1 that it is not possible for her to live with the plaintiff ?

7. Whether the lady defendant no. 1 is entitled to get the amount sought for her maintenance and that of her child ?

8. Whether the plaintiff is entitled to get any other relief ?

English translation by Court

9. In order to prove these issues, appellant appeared in witness box and examined as PW-1, PW-2 Nagpal, PW-3 Om Prakash, PW-4 Kanchan were also examined by Court.

10. Respondent also examined herself as DW-1 and Court also examined DW-2 and DW-3.

11. Besides, oral statements, parties also filed documentary evidence.

12. Family Court on the basis of material available on record, decided Issue Nos.1 to 6 together giving categorical findings that appellant failed to substantiate allegations of cruelty taken by him in suit and decided all issues, except Issue No.3, against appellant. However, Issue No.3 on remarriage of appellant with one Aarti Gupta was disbelieved and decided against respondent.

13. So far as Issue Nos.7 and 8 are concerned, Family Judge dismissed the suit of appellant for relief of divorce under Section 13 of Hindu Marriage Act and respondent was awarded a sum of Rs.3500/ per month for respondent's maintenance and Rs.3500/- per month for her son as maintenance.

14. Feeling aggrieved with the decision, appellant has preferred this appeal before this Court.

15. Heard learned counsel for the parties.

16. Learned counsel for the appellant submitted that trial court has committed a gross error of law by dismissing the suit of divorce of appellant. Appellant has fully proved that respondent after solemnization of marriage, treated the appellant with cruelty and deserted him without any fault on the part of appellant. He further submitted that prior to filing of divorce petition, he was offered to take his wife and minor male child back and maintain them but respondent failed to rejoin him. Respondent has caused frustration to the appellant and several false and frivolous criminal cases filed against the entire family members of appellant including father, mother and brother. Hence, appellant was left with no option but to file suit of divorce. However, trial court has failed to appreciate these facts while dismissing the suit of appellant. All allegations regarding harassment, cruelty and mala fide of respondent are itself clear from the face of evidence produced by appellant. Trial court has failed to take into consideration that appellant has made several attempts to call back respondent to his house but she refused to come back and stated that she was not willing to live with appellant and deserted appellant without any reasons. Trial court has completely failed to consider the above facts. Appellant has fully proved physical and mental cruelty by producing oral as well as documentary evidence and also shown a reasonable apprehension that it will be harmful for him to live with respondent. However, trial court has wrongly rejected all evidence adduced by appellant on the basis of conjectures and surmises. The trial court has dismissed the suit of appellant in an arbitrary manner and on the other hand, wrongly allowed heavy maintenance of Rs. 7,000/-per month (Rs.3,500/- each to wife and son). The petition of appellant ought to have been decreed on the ground of cruelty, which is a ground for divorce under Hindu Marriage Act and the appellant has fully proved mental and physical cruelty treated by respondent against appellant. Appellant has proved by oral as well as documentary evidence that relationship between appellant and respondent has deteriorated to such an extent that it has become impossible to live together without mental agony, torture and distress. However, Trial Court has failed to consider the above said aspect of the case and dismissed the suit of appellant. Family court has failed to appreciate evidence adduced by appellant and wrongly discarded the same. The judgement passed by Family Judge is perverse and liable to be set aside.

17. Learned counsel for the respondent submitted that controversy involved in this appeal is regarding divorce proceeding under Section 13 of Hindu Marriage Act by appellant against respondent. The Judge, Family Court after considering entire facts available on record, dismissed divorce petition filed by appellant and also granted maintenance of Rs.7000/- per month (Rs.3,500/- each to wife and son). All allegations regarding ill treatment and cruelty alleged by appellant was disbelieved by Family Judge. After appreciation of facts, learned Family Judge has given a categorical finding that appellant has failed to prove allegations and, it was the appellant whose behaviour with respondent was so cruel that she was forced to file a suit against appellant for restraining him to perform second marriage. Again she was forced to move a complaint before police authority regarding ill treatment of appellant against respondent. The act of appellant with respondent was very cruel, hence she moved application to police authorities regarding her protection. All these acts clearly shows that his behaviour against respondent was very cruel. Respondent filed documentary as well as oral evidence and proved allegation made by him in her written statement and after appreciation of facts adduced by parties, Family Judge rightly dismissed divorce petition filed by appellant. Respondent further submitted that finding recorded by Court is finding of fact, which is based on appreciation of facts and should not be disturbed and appeal lacks merit and deserves to be dismissed.

18. We are unable to accept the contention raised by learned counsel for appellant.

19. Before going to merits of case, it is necessary to reproduce relevant Section 13 of Hindu Marriage Act, 1955, which provides ground for divorce:

Section 13 of Hindu Marriage Act, 1955:

13 Divorce.- (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

[(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]

[(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]

[(ib)has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation .-In this clause,-

(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]

(iv) has 18 [***] been suffering from a virulent and incurable form of leprosy; or

(v) has 18 [***] been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; [***]

[Explanation. In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]

[(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,-

(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or 23 [bestiality; or]

(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or

(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.]

Explanation.-This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*.]

20. Ground of 'cruelty' as under Section 13 of Act is of two types, physical as well as mental.

21. Now Court has to see whether appellant has been able to prove the factum of 'cruelty' caused by respondent. The solemnisation of marriage between parties is admitted. It is also not denied that male child was born to wedlock of appellant and respondent. The allegation of appellant that respondent refused to cohabit with appellant or refused to consummate marriage, prove to be wrong and false. It is no where denied that male child is not born to wedlock of appellant and respondent; or the appellant is not father of male child. Further, appellant has miserably failed to prove 'cruelty' caused by respondent.

22. It is true that both the parties have alleged factum of cruelty with each other. On one part, appellant submitted that it was the respondent who treated him and his family members badly and used abusive language against them, which caused mental cruelty. Appellant further submitted that respondent refused to cohabit with him and also filed several false complaints against appellant, which also caused mental cruelty to appellant. Appellant has also alleged that conduct of respondent with family members of appellant and other guests was not cordial. She always refused to prepare tea for guest and in fact insulted the guests of family who came to visit. On the basis of these allegations, appellant tried to establish the factum of mental cruelty. All these facts were denied by respondent. On the contrary, respondent stated that it was the appellant, who treated respondent with cruelty by asking for more dowry and when family members of respondent failed to fulfil illegal demand of dowry of appellant, respondent was forced to leave the house. Respondent further alleged; when she was thrown out from house without cloths, she was forced to file petition before Family Judge for restraining him to perform second marriage and again she was forced to lodge maintenance suit as well as complaint against misbehaviour of appellant with police authorities. Thus, the stand of respondent that it was the appellant, whose behaviour against her was cruel appears to be correct.

23. Learned Family Judge after considering all allegations, has given a categorical finding that appellant has failed to prove the factum of mental cruelty. Court also opined that appellant has failed to substantiate grounds taken by him. On the contrary, Court was of the opinion that it was respondent who suffered a lot. She was forced to file civil as well as criminal complaints against appellant. Court is further of the view that appellant has failed to take effective steps to bring respondent back to his house. He has not filed any suit for restitution of conjugal rights under Section 9 of Hindu Marriage Act. The appellant also failed to adduce evidence regarding ill treatment by respondent to appellant or his family members. Thus, Court was clearly of the view that appellant has failed to prove the factum of mental cruelty.

24. So far as "physical cruelty" is concerned, Court has also given a categorical finding that appellant has also failed to establish any act of respondent, which caused physical cruelty of appellant. All these findings of Court are based on appreciation of facts could not be interfered by appellate court, unless shown perversity of contrary to record.

25. Last argument of counsel for appellant is that parties are living separately for a long period and relationship between husband and wife has come to an end and it is so strained that it is not possible for the husband and wife to live jointly and virtually the marriage has come to an end and has reached irretrievable point.

26. We are again unable to accept this contention raised by learned counsel for the appellant.

27. No divorce can be granted on the ground of irretrievable break down of marriage, if party seeking divorce on this ground is himself/herself at fault. In the present case, appellant himself filed a suit for divorce when respondent was forced to file civil as well as criminal complaints against appellant and it was the appellant who is not living with respondent after filing of this petition in year 2003. We are fortified and taking this view vide decisions of Apex Court in Vishnu Dutt Sharma vs. Manju Sharma JT 2009 (7) SC 5, Ram Babu Babeley vs. Smt. Sandhya 2006 (1) AWC 183 and Dr. Tara Charan Agarwal vs. Smt. Veena Agarwal 2911 ADJ 118.

28. In Ram Babu Babeley (supra) , the Court observed:

"36. The discussion attempted above leads to the following conclusions:

i. The irretrievable beak down of marriage is not a ground for divorce by itself. But while scrutinizing the evidence on record to determine whether the grounds on which divorce is sought are made out, this circumstance can be taken into consideration as laid down by Hon'ble Apex Court in the case of Savitri Pandey Vs. Prem Chand Pandey and V. Bhagat Vs. Mrs. D. Bhagat (supra).

ii.No divorce can be granted on the ground of irretrievable break down of marriage if the party seeking divorce on this ground is himself or herself at fault for the above break down as laid down in the case of Chetan Das Vs. Kamla Devi, Savitri Pandey Vs. Prem Chand Pandey and Shyam Sunder Kohli Vs. Sushma Kohli (supra).

iii. The decree of divorce on the ground that the marriage had been irretrievably broken down can be granted in those cases where both the parties have levelled such allegations against each other that the marriage appears to be practically dead and the parties can not live together as laid down in Chandra Kala Trivedi Vs. Dr. S.P.Trivedi (supra).

iv. The decree of divorce on the ground that the marriage had been irretrievably broken down can be granted in those cases also where the conduct or averments of one party have been so much painful for the other party ( who is not at fault ) that he cannot be expected to live with the offending party as laid down in the cases of V.Bhagat Vs. D.Bhagat, Romesh Chander Vs. Savitri, Ahok Hurra Vs. Rupa Bipin Zaveri and A.Jayachandra Vs. Aneel Kaur (supra).

v. The power to grant divorce on the ground of irretrievable break down of marriage should be exercised with much care and caution in exceptional circumstances only in the interest of both the parties as observed by Hon'ble Apex Court at paragraph no.21 of the judgement in the case of V. Bhagat and Mrs. D. Bhagat (supra) and at para 12 in the case of Shyam Sunder Kohli Vs. Sushma Kohli (supra).

38. We have already held that in the present case there was no fault on the part of the wife who was always willing to reside with her husband and is still ready to do so and her grievance is that the husband was not keeping her with him because there was demand of the motorcycle in dowry and when her father could not meet his demand the appellant forced her to leave his house . In the present case the fault is of the husband and so he can not be permitted to seek divorce on the ground of irretrievable break down of marriage and to take benefit of his own wrong as provided under section 23 of the Hindu Marriage Act as well as in the rulings in Chetan Das Vs. Kamla Devi, Savitri Pandey Vs. Prem Chandra Pandey and Shyam Sunder Kohli Vs.Sushma Kohli (supra)."

29. In Dr. Tara Charan (supra), a Division Bench of this Court observed that appellant cannot take advantage of his own fault. The Court said:

"We have our doubts whether marriage has broken down irretrievably or not as the Respondent is willing to resume husband-wife relationship, if the Appellant drops the immoral compromise. However, it is not necessary to decide whether marriage has broken down irretrievably or not, as even if it has so broken, divorce cannot be granted. For the purpose of the appeal, we assume that the marriage has broken down irretrievably.

Incompatibility in marriage or irretrievability of a marriage, or marriage being broken down irretrievably is not a ground for divorce though recommended by the Supreme Court in Naveen Kohli vs. Neelu Khli: AIR 2006 SC 675 for consideration to amend the Act. It may amount to mental cruelty entitling a party to divorce but it should be without any fault or at least fault of both sides. This is not the case here. In this case, the fault is of the Appellant: he has been cruel to the Respondent by insisting for the immoral compromise."

30. Lastly, in Vishnu Dutt Sharma (supra), the Apex Court held as under:

"10. In this connection it may be noted that in Section 13 of the Hindu Marriage Act, 1955 (for short 'the Act') there are several grounds for granting divorce e.g. cruelty, adultery, desertion etc. but no such ground of irretrievable breakdown of the marriage has been mentioned for granting divorce. Section 13 of the Act reads as under:

13. Divorce--(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party--

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii)has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

xx xx xx xx xx xx

(iv) has been suffering from a virulent and incurable form of leprosy; or

(v) has been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.

11. On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.

12. Learned Counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned Counsel for the appellant."

31. In this connection, it may be noted that in Section 13 of Hindu Marriage Act, 1955 there are several grounds for granting divorce i.e. cruelty, adultery, desertion etc. but no such ground of "irretrievable breakdown of marriage" has been mentioned for granting divorce.

32. On a bare reading of Section 13 of Act, it is crystal clear that no such ground of "irretrievable breakdown of marriage" is provided by legislature for granting a decree of divorce. This Court cannot add such a ground to Section 3 of Act as that would be amending the Act, which is a function of legislature. Thus, the argument advanced by learned counsel for appellant has also without any substance. In the present case, appellant was himself filed a suit for divorce on the ground of cruelty in which appellant has miserably failed to prove.

33. No other point has been raised before us by the learned counsel for appellant.

34. In view of above discussion, appeal lack merits.

35. Dismissed.

Order Date :- 14.5.2015

Ajeet