Rishikesh Sharma Vs. Saroj Sharma

Rishikesh Sharma vs Saroj Sharma

Disposition Appeal allowed Court Supreme Court of India Decided Nov 21, 2006

~4 min read

https://sooperkanoon.com/case/679349

For advocates & juniors · 7-day free trial

Brief this judgment before chambers

Stop skimming 50 pages - get an 18-section AI Brief on this case, ask scoped follow-ups, and find related precedents with Semantic Search. Full trial, no card required.

18-section brief - facts, issues, ratio, relief
Ask this case - answers cite the judgment
Semantic search - find precedents by meaning
Research drawer - sections, cites, related cases

Citation: sooperkanoon.com/679349
Court: Supreme Court of India
Judge: AR. Lakshmanan and; Tarun Chatterjee, JJ.
Decided On: Nov 21, 2006
Case Number: Civil Appeal No. 5129 of 2006 (Arising out of SLP (C) No. 17407 of 2005)
Subject: Family
Disposition: Appeal allowed

Case Summary

AI-generated summary - not the official court judgment text.

Family - Dissolution of marriage - Several litigations - Section 28 of Hindu Marriage Act - Appellant filed a petition for a decree of dissolution of marriage on the ground of mental cruelty and the respondent having deserted him without any reasonable cause -Held, in view of the several litigations between the part...

Key legal issue: Family
Outcome / disposition: Appeal allowed
Acts & sections: Hindu Marriage Act - Sections 28

Parties & Advocates

Appellant / Petitioner

Rishikesh Sharma

Advocate A.K. Chitale. Sr. Adv.,; Niraj Sharma and; Vikrant Singh Bai

Respondent

Saroj Sharma

Advocate S.S. Dahiya, ; K.K. Baid, ; M.S. Bakshi, ;

Legal References

Acts: Hindu Marriage Act - Sections 28
Reported In: 2007(1)ALT1(SC); 2007(1)AWC946(SC); 2006(5)CTC703; I(2007)DMC77SC; [2007(2)JCR239(SC)]; 2007(3)MhLj1; 2007(2)MPLJ319; 2006(12)SCALE282; (2007)2SCC263; 2006(3)ShimLC389

Court's Analysis

Prior History: From the Judgment and Order dated 19.4.2005 of the High Court of Madhya Pradesh, Bench at Gwalior in F.A. No. 14 of 1999

Excerpt

.....common law freedom is circumscribed by the principles of administrative law which requires larger public interest to be taken into account. even applying the principles enshrined in article 39(d) and (c) of the constitution, egalitarian quality requires the government to strike a balance between competing claims. even in the realm of social justice, on which the constitution is founded, the administration has to strike a balance between the competing claims. -- specific relief act, 1963 [c.a. no. 47/1963]. section 34: specific performance exercise of discretion under to grant held, the discretion under the section which the court has to exercise is a judicial discretion. that discretion has to be exercised on well-settled principles. therefore, the court has to consider the nature of obligation in respect of which performance is sought, circumstances under which the decision came to be made, the conduct of the parties and the effect of the court the decree. in such cases, the court has to look at the contract. the court has to ascertain whether there exists an element of mutuality in the contract. if there is absence of mutuality the court will not exercise discretion in favour of the plaintiff. even if, want of mutuality is regarded as discretionary and not as an absolute bar to specific performance the court has to consider the entire conduct of the parties in relation to the subject matter and in case of any disqualifying circumstances the court will not grant the relief prayed for. - therefore the best course in our opinion is to dissolve the marriage by passing a decree of divorce so that the parties who are litigating since 1981 and have lost valuable part of life can live peacefully in remaining part of their life......having deserted him without any reasonable cause. the district judge, gwalior, dismissed the petition filed by the husband for dissolution of the marriage. the appellant filed, a first appeal in the high court under section 28 of the hindu marriage act. the high court also dismissed the appeal of the appellant. the appellant has therefore questioned the correctness of the order passed by the high court in the above appeal.4. we heard mr. a.k. chitale, learned senior counsel and mr. s.s. dahiya, learned counsel for the respondent and perused the judgment passed by both the trial court and also of the high court. it is not in dispute that the respondent is living separately from the year 1981. though the finding has been rendered by the high court that the wife last resided with her husband up to 25.3.1989, the said finding according to the learned counsel for the appellant is not correct. in view of the several litigations between the parties it is not possible for her to prosecute criminal case against the husband and at the same time continue to reside with her husband. in the instant case the marriage is irretrievably broken down with no possibility of the parties living together again. both the parties have crossed 49 years and living separately and working independently since 1981. there being a history of litigation with respondent-wife repeatedly tiling criminal cases against the appellant which, could not be substantiated as found by the courts. this apart, only child born in the wedlock in 1975 has already been given in marriage. under such circumstances the high court was not justified in refusing to exercise its jurisdiction in favour of the appellant. this apart, the wife also has made certain allegations against her husband, that the husband has already remarried and is living with another lady as stated by her in the written statement. the high court also has not considered the allegations made by the respondent which, have been repeatedly made and.....

Full Judgment

AR. Lakshmanan, J.

1. Leave granted.

2. The husband, is the appellant before us. The respondent is his wife. They got married according to the Hindu rites and customs in the year 1972. After three years of marriage a daughter was born of the wedlock. Because of the misunderstanding between them the respondent started, living separately from her husband from the year 1981 onwards and is working in the Social Forestry Department. The respondent also filed several criminal proceedings against her husband with which we are not concerned in this appeal.

3. In the year 1989 the appellant filed a petition for a decree of dissolution of marriage on the ground of mental cruelty and the respondent having deserted him without any reasonable cause. The District Judge, Gwalior, dismissed the petition filed by the husband for dissolution of the marriage. The Appellant filed, a first appeal in the High Court under Section 28 of the Hindu Marriage Act. The High Court also dismissed the appeal of the appellant. The appellant has therefore questioned the correctness of the order passed by the High Court in the above appeal.

4. We heard Mr. A.K. Chitale, learned senior counsel and Mr. S.S. Dahiya, learned Counsel for the respondent and perused the judgment passed by both the trial court and also of the High court. It is not in dispute that the respondent is living separately from the year 1981. Though the finding has been rendered by the High Court that the wife last resided with her husband up to 25.3.1989, the said finding according to the learned Counsel for the appellant is not correct. In view of the several litigations between the parties it is not possible for her to prosecute criminal case against the husband and at the same time continue to reside with her husband. In the instant case the marriage is irretrievably broken down with no possibility of the parties living together again. Both the parties have crossed 49 years and living separately and working independently since 1981. There being a history of litigation with respondent-wife repeatedly tiling criminal cases against the appellant which, could not be substantiated as found by the Courts. This apart, only child born in the wedlock in 1975 has already been given in marriage. Under such circumstances the High Court was not justified in refusing to exercise its jurisdiction in favour of the appellant. This apart, the wife also has made certain allegations against her husband, that the husband has already remarried and is living with another lady as stated by her in the written statement. The High Court also has not considered the allegations made by the respondent which, have been repeatedly made and repeatedly found baseless by the courts.

In our opinion, it will not be possible for the parties to live together and therefore there is no purpose in compelling both, the parties to live together. Therefore the best course in our opinion is to dissolve the marriage by passing a decree of divorce so that the parties who are litigating since 1981 and have lost valuable part of life can live peacefully in remaining part of their life.

5. During this last hearing both the husband and wife were present in Court. Husband was ready and willing to pay lumpsum by way of permanent alimony to the wife. The wife was not wining to accept the lumpaum but however expressed her willingness to live with her husband. We are of the opinion that her desire to live with her husband at this stage and at this distance of time is not genuine. Therefore, we are not accepting this suggestion made by the wife and reject the same.

In the result, the appeal filed by the husband stands allowed. There will be a decree of dissolution of marriage in favour of the husband. No costs.

Same Court & Year Supreme Court of India · 2006 Same Parties Rishikesh Sharma vs Saroj Sharma Same Subject Family Same Judge AR. Lakshmanan and; Tarun Chatterjee, JJ. Acts & Sections Hindu Marriage Act - Sections 28

Family