Facts of the Case

The Appellant and the respondent are district judges who were working in the state of West Bengal. Their marriage was solemnized on 19^th June, 1992 according to the rules laid down under the Special Marriage Act, 1954. As a result, a girl child was born on 14^th April, 1993. Thereafter there was a matrimonial discord between them and they both were living separately since the year 2000. The appellant filed an application seeking divorce under section 27 of the act. The appellant stated that the difference arose between them due to improper behaviour in not showing due respect to ailing father. He further alleged that he was also deserted and as well as refused the custody of the child. The respondent did not even visit him when he was seriously ill. The respondent has also been accused of using bad language and even threatening the appellant for filing a criminal complaint if he pursues further with filing a petition for divorce in the year 2005.

The respondent thus filed a written complaint denying all the allegations laid down against her in the application for seeking a divorce. She has urged the court for dismissal of the divorce application and she never attended the proceedings in the trial court.

The chief judge at the city civil court dismissed the application for divorce dated 6^th August, 2009. An appeal was filed again at the high court against the judgment laid down by the city civil court had also been dismissed by the high court of Calcutta on 4^th July, 2012. The respondent did not appear even before the high court.

The trial court found that the appellant has failed to prove cruelty on the part of the respondent. The appellant was scrutinized and came to the conclusion that no case of divorce can be made of this. The high court also noted that both the parties are judicial officers and an attempt was made for a coalition between both the parties. Despite the efforts made by the high court neither the respondent nor the appellant appeared before the high court on a personal basis. Thus, the high court dismissed the appeal by holding that the irretrievable breakdown of the marriage cannot be a ground for making an appeal for divorce. The high court further held that the appellant has failed to prove mental cruelty on the part of the respondent in this case.

A notice was sent to the respondent on 8^th October, 2012 to explore the possibility of an amicable resolution with respect to the matrimonial dispute. Hence, the court had ordered the partied to appear before the mediation centre of the Supreme Court on November 21^st, 2012. Despite issuing the order both the respondent as well as the appellant did not appear before the center, after which a fresh notice was issued. However, once again the respondent did not appear before the mediation Center even if they received the notice.

The learned counsel before the appellant submitted that the respondent had deserted the appellant about 17 years back and she refused to return and live with him. Apart from the allegations that were laid down, the learned counsel alleged mental cruelty on part of the respondent who had threatened the appellant she would file a criminal case against him if he appealed to the court for a divorce. Further, the learned counsel submitted that the appellant and respondent were staying apart due to matrimonial dispute between them for seventeen years and for all other purposes the marriage was considered as null and void. In spite of receiving the notices many times from the trial and the High Court, the respondent failed to appear in the legal proceedings. Therefore, this conduct itself showed the nature of the respondent that she did not want to lead a life together with the appellant. Thus, it was concluded that the refusal to attend and take part in the proceedings of divorce and as well as forcing the appellant to stay on with the deed of marriage would itself constitute mental cruelty.

Thus, the High Court observed that the parties made no effort to come together at the same place. Without even entering into the facts of the case the court gave the opinion that there is no scope that Appellant and the respondent living together and for all other important purposes and therefore, there is an irretrievable breakdown of the marriage. Samar Ghosh VS Jaya Ghosh, Manish Goel VS Rohini Goel, a reference was made by the court in the above matter.

The court has used this power in series of a judgment given by them as given under Article 142, the constitution of India, 1950, where divorce could be granted even without visiting the facts and circumstances of the case and where divorce cannot be granted on the grounds of law.

1). Whether the appeal should be allowed according to Article 142 of the constitution that is under the dissolution of a marriage as per the facts of the case but the divorce could not be granted by law?

Thus, the court admitted that since the appellant and the respondent have lived separately for more than seventeen years, there is no point in forcing the couple to make them live together and run the marriage. Therefore, under this Rishikesh Sharma VS Saroj Sharma, case was also referred by the court for this segment. The court also held that the daughter of the appellant aged around 24 years as well as her custody is not the issue with regards to this particular case.

According to the given facts and circumstances of the case and to give justice to the respective parties the appeal has been allowed by the Supreme Court of India, as per the power given to the court under Article 142 of the, constitution of India, 1950. And thus, as per the reasons mentioned above further appeal was allowed that was filed by the appellant under section 27 of the said act.

Supreme Court of India

Case number- 7186/ 2016