Vishwanath vs Sau. Sarla Vishwanath Agrawal

V.R. Kingaonkar, J.—This Second Appeal arises out of concurrent findings in relation to petition for divorce U/s. 13(1)(i-a) of the Hindu Marriage Act, on the ground of cruelty. A divorce petition (HMP No. 42/1995) was filed by the present appellant -Vishwanath. The main ground seeking divorce was that the wife subjected him to mental cruelty. Allegedly, she used to deal in tantrums, was behaving nastily and used to address filthy abuses. The wife denied the allegations. She contended that the matrimonial life for about 16 or more years was without problem but it was due to ill-treatment of the appellant that she had to leave the house. The trial Court held that the appellant could not establish the ground of cruelty. The trial Court came to the conclusion that the decree for divorce is not warranted when the appellant did not establish mental cruelty and, therefore, dismissed the petition. The first appellate Court also dismissed his appeal, confirming the finding that the ground of cruelty is not proved. There are concurrent findings of facts. Initially an attempt was made for conciliation. The learned advocate for the Respondent Mr. Agrawal, himself made such attempt saying that he is relative of the parties. He informed the Court on previous occasion that all his attempts fizzled out. Learned advocate Mr. Dhorde, would state that the Respondent has taken obstinate attitude and is not ready to join the company of the appellant nor is ready to give him divorce because she wants to harass him. It appears that son of the parties has grown young and has been married. The parties have no intention, whatsoever, to patch up the matrimonial discord.

The learned counsel for the parties informed that the settlement may not be possible. The appellant gave offer to the Respondent for settlement of the dispute on accepting amount of Rs. 3,50,000/- (Rupees three lacs fifty thousand) but no favourable response is received from the Respondent. The appellant was ready to enhance the amount appropriately. Today, learned counsel for the Respondent is absent when the matter is called out. It is conspicuous that the attempts of the settlement have become fruitless.

Mr. Dhorde, learned counsel for the appellant would point out that the marriage has been irretrievably broken. There cannot be any duality of opinion that the marriage is broken with no hope of reunion. The record shows that there is nothing redeeming about the prospects of bringing spouses together and they are at logger heads to such an extent that they are not likely to join company of each other. Mr. Dhorde, would, therefore, submit that the appeal may be admitted because the marriage is irretrievably broken. Such ground cannot be considered by this court. The Apex Court in A. Jayachandra Vs. Aneel Kaur, , held that irretrievable breaking down of the marriage though is not a ground for dissolution of marriage, yet, in extreme cases Supreme Court with a view to do complete justice and shorten agony of parties, may direct dissolution of marriage. Similar view is taken in Sanghamitra Ghosh Vs. Kajal Kumar Ghosh, and Naveen Kohli Vs. Neelu Kohli, . It may be however, mentioned that such a ground can be considered only by the Apex Court under the extraordinary powers available under Article 142 of the Constitution of India, so as to do complete justice between the parties. Though, I am convinced that the marriage is broken down irretrievably, yet, in the Second Appeal I am unable to consider the request for grant of the decree of divorce. For, there is concurrent finding of fact regarding absence of alleged cruelty by the wife. In view of the concurrent findings of the facts regarding cruelty, the Second Appeal is untenable as no other substantial question of law is involved, particularly in the light of observations in Mst. Sugani Vs. Rameshwar Das and Another, and Gurdev Kaur and Others Vs. Kaki and Others, . The Second Appeal is therefore, dismissed. No costs.