Unknown vs This Civil Miscellaneous Appeal ...
2023 Latest Caselaw 3759 AP

                                      1


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


                         CMA.No.995 of 2013
JUDGMENT: (per Hon'ble D.V.S.S.Somayajulu)


        This Civil Miscellaneous Appeal is filed questioning the order

dated 08.02.2013 in O.P.No.6 of 2011 for divorce.           This application

was dismissed. Questioning the same, the present appeal is filed. The

sole respondent did not appear despite service.

2. Sri S.Ramachandra Prasad, learned counsel for the petitioner,

essentially argued that as the respondent is not showing any interest

in the marriage and she has not even bothered to contest the case and

that this Court should grant the divorce. He points out that the

marriage was performed in 1994. The divorce petition was filed in

2011 and the judgment was pronounced in 2013. The appeal was filed

thereafter and the final hearing was taken up in the appeal in 2023.

He submits that the ground of irretrievable breakdown of marriage is

also raised in the petition itself. It is his contention that the trial

Judge erroneously dismissed the application. He relies upon the

following two judgments on the grounds of irretrievable breakdown: (a)

Kalapatapu Lakshmi Bharati v. Kalapatapu Sai Kumar 1 and (b)

2017 (1) ALD 272

Rishikesh Sharma v. Saroj Sharma2 to argue that the decree of

divorce should be granted on the ground of irretrievable breakdown

also.

3. This Court after examining the record notices that the trial Court

considered the leading cases on the subject for cruelty. The Judge

relied on the admission that a separate family had to be set up in a

separate household because of his convenience for the purpose of this

contract works. He also gave certain instances of harassment of the

wife in the presence of certain third parties. These people whose

names are mentioned were not examined as witnesses. Even

otherwise, the petitioner before whom certain incidents took place

were also not examined as witnesses. These factors weighed with the

trial Court. It is also mentioned that the respondent was taken to a

psychiatrist. This is also considered by the learned trial Court in the

proper perspective. Thus, in the opinion of this Court, the trial Court

did not commit any error warranting interference.

4. Ultimately, the crux of the submission of the learned counsel is

that there is irretrievable breakdown of the marriage and that in view

of the judgments cited by him, this Court has the power to grant the

divorce.

2 2007 (1) ALT (SC) 1

5. The Hon'ble Supreme Court of India recently had an occasion to

consider if irretrievable breakdown of marriage was a ground for

divorce. In the case of Shilpa Sailesh v. Varun Sreenivasan3, a

reference was answered by the Hon'ble Supreme Court in categorical

terms. It was finally held that irretrievable breakdown of marriage is a

ground for divorce by the Hon'ble Supreme Court of India while

exercising power under Article 142 of the Constitution of India. It is

clear therefore that this power is vested with the Hon'ble Supreme

Court of India to do and render complete justice between the parties.

This is not a power vested with this Court.

6. In view of this recent judgment of the Hon'ble Supreme Court,

the case law cited by the learned counsel for the petitioner is not good

law.

7. This Civil Miscellaneous Appeal is therefore dismissed. 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

3 2023 SCC Online SC 544