Gudivada vs Unknown
2023 Latest Caselaw 3758 AP

                                    1


              HOB'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                                  AND
          HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA


                          CMA.No.546 of 2012
JUDGMENT: (per Hon'ble D.V.S.S.Somayajulu)


        This Civil Miscellaneous Appeal is filed against the order dated

14.11.2011 in O.P.No.91 of 2008 passed by the Senior Civil Judge,

Gudivada, Krishna District.

2.      This Court has heard Sri S.Ramachandra Prasad, learned

counsel for the appellant.     The respondent did not appear despite

service of notice.

3. Since the learned counsel proceeded with the argument stating

that he limiting his argument to a question of law. The learned

counsel for the appellant essentially argued this O.P. along with

another matrimonial O.P. in C.M.A.No.995 of 2013 stating that similar

questions of law arise. He relies upon two judgments namely,

Kalapatapu Lakshmi Bharati v. Kalapatapu Sai Kumar 1 and a

judgment of the Hon'ble Supreme Court in Rishikesh Sharma v.

Saroj Sharma2. He points out that in both these cases, the Hon'ble

Division Bench of this Court and the Hon'ble Supreme Court dissolved

2017 (1) ALD 272 2 2007 (1) ALT(SC) 1

the marriage on the ground of irretrievable breakdown. In view of the

long litigation between the parties, he prays for a similar order in this

matter also.

4. On a perusal of the impugned order, this Court notices that it is

a contested order. Four witnesses were examined for the petitioner

and one for the respondent. Seven (7) documents were marked for the

petitioner and 15 documents were marked for the respondent.

Elaborate case law was cited and considered in the course of the

judgment. The essential contest that is raised appears to be that the

respondent is a psychiatric patient. The Court noticed that there is no

medical evidence to prove that the petitioner is a psychiatric patient.

The trial Court also held that the existence of such a disease which

gives rise to an apprehension for the petitioner that it is dangerous to

leave with his spouse is also not proved. Even as far as desertion is

concerned, after considering the fact and law, the learned trial Court

Judge came to the conclusion that the desertion with the necessary

ingredients namely, the animus deserendi and the permanence, which

is necessary is not proved. He has systematically analyzed the

evidence and come to the conclusion that neither cruelty nor desertion

are proved. The mediators who are supposed to have been involved to

settle the issue have also not been examined. It is also noticed by the

trial Judge with a perusal of the letters marked as Ex.D.15 shows that

there is a dispute between the petitioner and the respondent and that

it is mentioned that the respondent had no amicable relationship with

her mother-in-law. The conduct of the petitioner was also taken into

consideration before coming to a conclusion that neither cruelty nor

desertion is proved.

5. As far as the case law on the subject is concerned, this Court is

of the opinion that the Hon'ble Supreme Court of India in the case of

Shilpa Sailesh v. Varun Sreenivasan3 considered a reference made

with regard to the question whether irretrievable breakdown is a

ground for divorce. Ultimately, it is held that in exercise of the power

under section 142 of the Constitution of India, the Hon'ble Supreme

Court alone has the discretion to dissolve a marriage on the ground of

its irretrievable breakdown. The order clearly answers the query that

'in exercise of the power under Article 142 of the Constitution of India',

this Court (Hon'ble Supreme Court) has the power. It is a special

power which is given only to the Hon'ble Supreme Court of India and

not to this Court.

6. In that view of the matter, the two judgments cited by the

learned counsel are not good law and therefore, they cannot be relied

upon.

7. Both on fact and law, this Court finds no ground is made out for

this Court to interfere.

2023 SCC Online SC 544

8. Accordingly, the Civil Miscellaneous Appeal is dismissed. No

order as to costs. As a sequel, the miscellaneous petitions if any shall

stand dismissed.

________________________ D.V.S.S.SOMAYAJULU,J

__________________________________ DUPPALA VENKATA RAMANA,J

Date: 31.07.2023 KLP