B.K. Patel, J.
1. Aggrieved by dismissal of his application for dissolution of marriage by decree of divorce under Section 13(1)(i-a) of Hindu Marriage Act (for short 'the Act') in Civil Proceeding No. 198 of 1999 by Learned Judge, Family Court, Cuttack, husband-Appellant has preferred this appeal against wife-Respondent.
2. Parties are Hindus. Appellant is a native of village Bodar in the district of Cuttack. Their marriage was solemnized in Danda Bibha form on 5.1.1998. Appellant is a doctor employed under the State Government whereas Respondent is working as Senior Technical Assistant in the Department of Architect under O.U.A.T., Bhubaneswar. Appellant's father was a Government servant & working as a Health Educator prior to his retirement. It is also not disputed that parties are living in separation since 2.10.1998.
3. It is asserted by the Appellant that his marriage with Respondent was solemnized in village Bodar. After the marriage the parties resided in village Bodar till the 5th day of the marriage, & thereafter shifted to Bhubaneswar. It is alleged by the Appellant that Respondent is an adamant & rowdy lady, who has no respect or affection towards her in-laws. She used to underestimate him & praise her brother-in-law. Respondent's family members suppressed the fact that Respondent was a state level athlete & she used to attend various tournaments in & outside the State. Though the Respondent was a diploma holder in Architecture, Appellant was given the impression that she was a B. Tech. While staying in the Appellant's house, Respondent was reluctant to prepare food, & gave out that she would continue to ride two-wheeler, put on jean pants & shirts, & visit her father's house everyday. It is further alleged that when Appellant's mother had undergone eye operation in the month of April, 1998, Respondent instead of shouldering house-hold responsibilities chose to take her meals in the hotel & returned home late in the night in a drunken slate. Appellant could take notice of such conduct of Respondent when he came home from his place of service. Respondent did not mend her conduct in Spilt of Appellant's advice. Moreover, she did not allow the Appellant for cohabitation & asked him to keep sexual relationship with the girls at his service place & not to come to Bhubaneswar frequently. She also threatened the Appellant of divorce. It is also alleged that Respondent suggested to the Appellant that she would mix with others for sexual relationship by taking proper precautions during his absence. It is categorically alleged that deprivation of conjugal sexual relationship by the Respondent amounted to inflicting of cruelty & mental agony on the Appellant. It is further alleged that most of the time Respondent remained absent from her matrimonial home & preferred to spend her time in her maternal home or in the house of her brother-in-law situated at Bhubaneswar. She. used to quarrel with Appellant & his family members & conduct herself in a violent & abusive manner. She used to abuse & subject the Appellant to humiliation in public places. On one occasion she caught hold of Appellant's collar & abused him in the market, & on another occasion she threw food plate on his face. Due to Respondent's conduct, Appellant's relations, friends & neighbours stopped visiting his house. Though Respondent received Rs. 8,000 towards her monthly salary excluding private practice, she did not render financial help to the family. She used to spend her money in attending parties in hotels with her boy friends. Once the Appellant required money for his younger brother's treatment, but the Respondent got enraged & threw currency notes on his face. In her birth day in the month of May, 1998 the Respondent was offered a saree & asked to go to temple with the Appellant but she refused to wear the saree & go to temple. She left for office where she observed her birth day in Western style. It is further alleged that once in the month of July, 1998, Respondent took the Appellant to her friend, who was wearing a jean pant & shoulder less banian. She told the Appellant that her friend was having a bottle of Champagne & proposed to go to hotel & drink the same. When the Appellant rejected the proposal, Respondent took Champagne & created unpleasant situation for which the Appellant had to bring her home in a taxi. Appellant's father requested Respondent's brother-in-law to intervene & settle the disputes between the Appellant & the Respondent amicably but he did not respond. On 3.6.1998 Respondent, instead of returning home from office, went to her maternal home & telephoned that she had resigned from service. She informed that she would not stay with the Appellant in her matrimonial home & expressed her willingness to stay in separate mess. 'Appellant & his father found from the Respondent's office that she had not resigned. When they went to Respondent's maternal home they were misbehaved by, her mother who declared that Respondent would never return to her matrimonial home & advised the Appellant's father to persuade the Appellant for divorce or for keeping the Respondent in a rented house. However, the Appellant persuaded the Respondent to return home & ultimately Respondent's father & brother left her in the Appellant's house on 6.6.1998. It is alleged' that Respondent is an abnormal lady suffering from Schizophrenia. She used to threaten of committing suicide unless the Appellant resided with her separately in a rented house. On 2.10.1998, which being a Friday & 'Ekadasi' was not an auspicious day to go to maternal home, the Appellant left her matrimonial home despite advice rendered by Appellant's parents to her that she should not leave her matrimonial home on that particular day. Thereafter, she did not keep any contact with the Appellant or his family & on 9.11.1998 Respondent finally denied to return to her matrimonial home. In such circumstances, Appellant filed application for divorce.
4. Respondent filed written statement denying the allegations made by the Appellant. It is pleaded by her that Learned Family Court, Cuttack has no territorial jurisdiction to entertain the application for divorce. According to her, marriage between her & Appellant was solemnized in Bhubaneswar & they all along resided in Bhubaneswar prior to their separation. She asserts to have treated the Appellant as well as his parents & brother with respect, regard, love & affection. According to her, the Appellant, who is a simple gentleman, is loving & affectionate towards her. However, Appellant's father is a greedy person. Though the Respondent wanted to resign from her service in order to devote herself towards house-hold responsibilities, Appellant & his father insisted that she should continue with her employment & contribute her income to the family. Respondent alleges that despite the Appellant's love & affection towards her, he has immense fear for his father. When Appellant's father's plan to extract money from Respondent did not materialize, the Appellant was set up to obtain a decree of divorce only with a view to get Appellant married with another woman. Appellant's mother also treated the Appellant with love & affection but she is also mortally afraid of her husband. It is categorically averred by the Respondent that she is ready & willing to voluntarily join her husband at any time if he desires her to do so. However, she was mortally afraid of her father-in- law, who, according to her, would not hesitate to inflict torture on her or to kill her. It is averred that despite her eagerness to join the company of the Appellant, she has been deserted without her fault & in spite of her approaches Appellant's father did not take any interest to take her to his house.
5. On the basis of rival pleadings of the parties Learned Court below observed that the crucial points for determination are, (i) whether the Court at Cuttack had got territorial jurisdiction to entertain the petition under Section 13 of the Act?, (ii) whether the Respondent-wife had intentionally deserted the Petitioner with a view to put an end to their conjugal relationship in perpetuity?, & (iii) whether the Respondent had treated the Petitioner with cruelty
6. In order to substantiate their respective assertions, Appellant examined two witnesses, P.W.2 is the Appellant himself & P.W.1 is his father. Appellant also relied upon document marked Ext. 1. Altogether six witnesses, O.P.Ws.1 to 6 were examined & documents marked Exts. 'A' to 'B' were relied upon on behalf of the Respondent. Of them, O.P.W.6 is Respondent herself & O.P.W. 5 is her father.
7. On consideration of evidence on record, Learned Judge, Family Court, Cuttack came to categorical finding that as no part of cause of action in the proceeding arose within the local limits of jurisdiction of Family Judge Court, said Court has no territorial jurisdiction to entertain the petition under Section 13 of the Act. However, as the parties had already adduced evidence, the Learned Court below proceeded to, decide the case on merit. It was held that the petition having been presented before expiry of two years from the date on which Appellant alleges the Respondent to have deserted him, application for divorce IS not maintainable on the ground of desertion under Section 13(1)(i-b) of the Act. On scrutiny of evidence, it was further held that Appellant has failed to substantiate the allegations of cruelty on the part of Respondent. Therefore, the Appellant was held to be not entitled to decree of divorce.
8. Learned Counsel for the Appellant initially made an attempt to assail the impugned Judgment on the ground of lack of territorial jurisdiction of the Family Court, Cuttack without pursuing the contention at a later stage. It was not disputed by the Learned Counsel for the Appellant that in view of provision under Section 19 of the Act, application under the Act should have been filed in the appropriate Court in Khurda district. It was also conceded that the Learned Court below having proceeded to decide the case on merit & no prejudice occasioning in failure of justice being shown to have been caused by adjudication of the case by the Learned Judge, Family Court, Cuttack, there is no scope for the Appellant to assail the legality of the impugned Judgment on the ground of lack of territorial jurisdiction.
9. In Hasham Abbas Sayyad v. Usman Abbas Sayyad AIR 2007 SC 1077, it has been held:
An order passed by a person lacking inherent jurisdiction would be a nullity. The principles of estoppel, waiver & acquiescence or even res judicata which are procedural in nature would have no application in a case where an order has been passed by the Tribunal/Court which has no authority in that behalf. Any order passed by a Court without jurisdiction would be coram noh judice being a nullity, the same ordinarily should not be given effect to. However, a distinction must be made between a decree passed by a Court which has no territorial or pecuniary jurisdiction in the light of Section 21 & a decree passed by a Court having no jurisdiction in regard to the subject-matter of the suit. Whereas in the former, case, the Appellate Court may not interfere with the decree unless prejudice is shown, ordinarily the second category of the cases would be interfered with.
10. In Hira Lal v. Kali Nath : AIR 1962 SC 199 also, it has been held:
It is well settled that the objection as to local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case. Competence of a Court to try a case goes to the very root of the jurisdiction, & where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a Court can be waived & this principle has been' given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure.
11. Moreover, the Appellant himself having chosen to file application for divorce in the Family Court, Cuttack, he can not take advantage of his own action to urge that said Court has no jurisdiction to entertain the application. In Kiran Singh v. Chaman Paswan : AIR 1954 SC 340, it has been held by the Hon'ble Supreme Court that prejudice can be a ground for raising the objection about jurisdiction only when it is due to the action of another party & not when it results from one's own act. Courts cannot recognize that, as prejudice which flows from the action of the very party who complains about it. In the present case both parties proceeded to adduce all the evidence they waned to adduce. Appellant does not allege that there has been any failure of justice. Therefore, Learned Counsel for the Appellant rightly & prudently abandoned the objection to the impugned Judgment on the ground of lack of territorial jurisdiction.
12. In fact the application for divorce does not appear to have been tiled on the ground of desertion under Section 13(1)(t-b) of the Act also. Alleging that Respondent deserted him on 2.10.1998, the Appellant presented the petition in Court on 30.4.1999. Therefore, it is not alleged in the petition that Respondent deserted the Appellant for a continuous period of not less than two years immediately preceding the presentation of present petition.
13. In course of hearing it was also fairly conceded by the Learned Counsel for the Appellant that evidence adduced on behalf of Appellant falls far short of proof to substantiate the allegations of cruelty against the Respondent. No independent witness was examined on behalf of the Appellant though some of the incidents were pleaded to have taken place in public places. Neither the Appellant nor his father P.W.1 deposed regarding any specific instance of cruelty. It is apparent from their testimonies that they objected to the manner in which the Respondent dressed herself & to her conduct in riding bike in order to go to her office. P.W.1 Appellant's father deposed that Respondent did not behave like a Hindu wife. Both the Appellant as well as his father alleged that the Appellant did not attend to hcuse-hold works. Similar allegations have been made in the petition for divorce also taking exception to the Respondent's attire & lack of interest in attending to house-hold works. It is to be borne in mind that Respondent is an educated working woman. She was also a state level athlete. That apart, evidence adduced on behalf of the Respondent, more particularly that of Respondent herself, negate all such allegations. It-was categorically stated that by her that she is ready & willing to join Appellant's company. She has no allegation so far as Appellant is concerned. However, it is evident that Appellant's father was not happy with the Respondent & on his instigation the Appellant filed application for divorce. Ext. 'C a letter written by the Appellant to the Respondent reveals that he used to love her.
14. Despite lack of evidence to substantiate the allegations of cruelty it was contended by the Learned Counsel for the Appellant that in view of long separation of the parties it is to be presumed that there has been irretrievable break down of marriage. In such circumstances, a decree of divorce should be passed in the interest of Appellant as well Respondent. In reply, it was rightly contended by the Learned Counsel for the Respondent that irretrievable break down of marriage is yet to be included under Section 13 of the Act as aground for divorce. Learned Counsel appearing for both the parties cited decisions in support of respective contentions.
15. Upon perusal of the decisions cited on behalf of the parties, it is found that in a number of cases Hon'ble Supreme Court has granted or upheld decree of divorce on the ground that the marriage between the parties has irretrievably broken down. However, it is evident from the decisions that such recourse was adopted in exercise of jurisdiction under Article 142 of the Constitution of India to do complete justice. Also, in some cases like Chetan Dass v. Kamla Devi : AIR 2001 SC 1709 plea for dissolution of marriage was rejected despite the fact that marriage between the parties had become dead. In Smt. Sneh Prabha v. Ravinder Kumar : AIR 1995 SC 2170, Durga Prasanna Tripathy v. Arundhati Tripathy : AIR 2005 SC 3297 & Rishikesh Sharma v. Saroj Sharma : (2007) 2 SCC 263, divorce was granted on .the ground of irretrievable break down of marriage without reference to Article 142 of the Constitution of India. In V. Bhagatv. D. Bhagat : AIR 1994 SC 710, it was observed that irretrievable break down of the marriage is not a ground by itself for grant of decree of divorce. In Ashok Hurra v. Rupa Ashok Hurra AIR 997 SC 1266, Anjana Kishore v. Puneet Kishore (2003) 25 OCR (SC) 806, Smt. Swati Verma v. Rajan Verma (2004) 27 OCR (SC) 204, Romesh Chander v. Savitri : AIR 1995 SC 851 & Satish Sitole v. Ganga : AIR 2008 SC 3093, decree of divorce was granted in exercise of jurisdiction under Article 142 of the Constitution of India on the ground that there was irretrievable break down of the marriage which had become dead.
16. In A. Jayachandra v. Aneel Kaur : AIR 2005 SC 534, it was observed by a Three Judges Bench of Hon'ble Supreme Court that in some cases dissolution of marriage has been allowed on the ground that the marriage had irretrievably broken down with a view to do complete justice & shorten the agony of the parties engaged in long drawn legal battle. It was held:
17. Several decisions, as noted above, cited by Learned Counsel for the Respondent to contend even if marriage has broken down irretrievably decree of divorce cannot be passed. In all these cases it has been categorically held that in extreme cases the Court can direct dissolution of marriage on the ground that the marriage broken down irretrievably as is clear from paragraph 9 of Shiv Sunder's case (reported in AIR 2004 SC 511 : 2004 AIR SCW 5857) (supra). The factual position in each of the other cases is also distinguishable. It was held that long absence of physical company cannot be a ground for divorce if the same was on account of husband's conduct. In Shiv Sunder's case (Supra) it was noted that the husband was leading adulterious life & he cannot take advantage of his wife shunning his company. Though the High Court held by the impugned Judgment that the said case was similar, it unfortunately failed to notice the relevant factual difference in the two cases.. It is true that irretrievable breaking of marriage is not one of the statutory grounds on which Court can direct dissolution of marriage, this Court has with a view to do complete justice & shorten the agony of the parties engaged in long drawn legal battle, directed in those cases dissolution of marriage. But as noted in the said cases themselves those were exceptional cases.
17. Another Three Judges Bench of the Hon'ble Supreme Court in Naveen Kohli v. Neelu Kohli : AIR 2006 SC 1675 also took note of the fact that irretrievable break down of marriage is not a ground for divorce under the Act, &, therefore, recommended for inclusion of the same by way of amendment. It was held:
71. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances & for covering a large number of cases where the marriages are virtually dead & unless this concept is pressed into services, the divorce cannot be grant6d. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage, Act, 1955.
xx xx xx xx xx xx xx xx xx96. Before we .part with this case, on the consideration of the totality of facts, this Court would like to recommend the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. A copy of this Judgment be sent to the Secretary, Ministry of Law & Justice, Department of Legal Affairs, Government of India for taking appropriate steps.
18. In view of the above, in the absence of cogent evidence to substantiate the allegations of cruelty as made by the Appellant, long separation by itself cannot be a ground for grant of decree of divorce. That would be against the provision under Section 13 of the Act. In Visnu Dutt Sharma v. Manju Sharma : AIR 2009 SC 2254, it has been held by the Hon'ble Supreme Court:
12. Learned Counsel for the Appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, & hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable, breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature & not by the Court. It is for the Parliament to enact or amend the law & not for the Courts. Hence, we do not find force in the submission of the Learned Counsel for the Appellant.
19. Thus, it is obvious that in some cases marriage was directed to be dissolved on the ground that the same has irretrievably broken down by the Hon'ble Supreme Court in exercise of jurisdiction under Article 142 of the Constitution of India which jurisdiction is not available to any other Court including High Court. Despite several recommendations, irretrievable break down is yet to be included by way of amendment as a ground for dissolution of marriage under Section 13 of the Act. In the present case, we do not find any infirmity in the finding of the Learned Judge, Family Court, Cuttack to the effect that evidence on record does not substantiate allegations of cruelty against the Respondent. Evidence of Respondent herself exhibits her eagerness to resume the matrimony. Therefore, we find no reason to interfere with the impugned Judgment.
Accordingly, the appeal is dismissed & the impugned Judgment passed by Learned Judge, Family Court, Cuttack is confirmed. Parties shall bear their own cost.
L. Mohapatra, J.
I agree.