Pradeep Kumar Nanda Vs. Sanghamitra Binakar - Court Judgment

M.M. Das, J.

1. This appeal has been preferred by the Appellant-husband against the order dated 2.7.2004 of the Learned Civil Judge, (Senior Division), Bhubaneswar passed in O.S. No. 342 of 2002.

2. The Appellant-husband and the Respondent-wife were admittedly married in accordance with Hindu Customs and Rites on 1.12. 1999. It is also the admitted case that from 6.6.2001 they are separately residing though Appellant-husband alleges that the Respondent-wife has abandoned the matrimonial home. On 17.6.2002, the Appellant-husband filed an application under Section 9 of the Hindu Marriage Act 1955 (hereinafter referred to as 'the Act') for an order of restitution of conjugal rights, before the Learned Civil Judge (Senior Division), Bhubaneswar, which was registered as O.S. No. 342 of 2002. It is the case of the Appellant-husband that due to subsequent developments as he was convinced that the marriage has broken down irretrievably and the spouses cannot live together, on 12.5.2003, the Appellant-husband filed an application to withdraw O.S. No. 342 of 2002 and basing on the cause of action, which according to the Appellant husband arose during the pendency of the aforesaid suit, he filed MAT Case No. 338 of 2003 before the said Gourt for a decree of divorce under Section 13 of the Act. During the pendency of O.S. No. 342 of 2002, the Respondent-wife filed an application under Section 24 of the Act claiming pendente lite maintenance which was registered as I.A. No. 251 of 2003 and the same was allowed by the Learned Civil Judge. Against the said order directing grant of interim maintenance to the Respondent wife, the Appellant preferred W.P. (C) No. 9089 of 2003 before this Court. During the pendency of the said writ petition, this Court while directing the parties to appear in person made attempts for conciliation which became fruitless on three occasions. By order dated 29.4.2004, the said writ application was disposed of by this Court with a direction to the Trial Court to dispose of both the suits within six months, on out of turn basis. However, the direction to pay interim maintenance of Rs. 3000/- per month, which was under challenge in the writ petition, was not interfered with by this Court in the said writ petition. After disposal of the writ petition on 29.4.2004, the Respondent-wife filed an application under Order 12, Rule 6 C.P.C. in O.S. No. 342 of 2002 on 22.6.2004, making a prayer to pass a decree in the said suit in accordance with Order 12, Rule 6 C.P.C. The Learned Trial Court by the impugned order dated 2.7.2004 directed the suit to be decreed on admission of the Defendant without cost under Order 12, Rule 6 C.P.C. Consequently, the Trial Court directed the Defendant being the wife, to join the company of the husband within 30 days from the date of pronouncement of the judgment and the Petitioner (husband) to accept her company with the child. It appears from the records of the Court below that on the said day, at about 4.30 P.M. the Appellant husband flied a petition under Section 151 C.P.C. praying to recall the order and the Learned Trial Court directed to serve copy of the said petition on the Learned Counsel for the Defendant and to get the same registered as a misc. case. But no further date was fixed to hear the said petition. The Appellant thereafter flied the present appeal before this Court on 25.8.2004.

3. During the pendency of this appeal by Order 8.10.2004, this Court directed the Learned Civil Judge (Sr. Division), Bhubaneswar not to deliver the judgment in the Divorce Proceeding being MAT Case No. 338 of 2003 and to keep the same in a sealed cover until further orders. By order dated 9.11.2004, in Misc. Case No. 328 of 2004, this Court called for the records of MAT Case No. 338 of 2003. It also appears from the records of this appeal that by various orders passed by this Court, interim maintenance at the rate of Rs.3000/- per month which was directed to be paid to the Respondent-wife, was paid to her and such maintenance till the month of February, 2006 has been paid by the Appellant-husband. It further transpires that during the pendency of this appeal also, an attempt was made for conciliation between the parties and by order dated 29.6.2005, it was recorded by this Court that in view of the attitude of the parties, it appears that, this matter cannot be disposed of by conciliation.

4. Mr. S.P. Mishra, Learned senior Counsel appearing for the Appellant-husband contended that the impugned order cannot be sustained in law for the following reasons.

i) The petition filed by the Appellant-husband for withdrawal of the suit has not been considered by the Trial Court before passing the impugned order though the said petition was filed much prior to the petition filed under Order 12, Rule 6, C.P.C. by the Respondent-wife.

ii) In view of the prayer of the Appellant-husband made in the application for withdrawal suit for restitution of conjugal rights as the relief was no more asked for nor pressed.

iii) The Learned Trial Court has acted in contravention of the order passed by this Court on 29.4.2004 in W.P.(C) No. 9089 of 2003 by which it was directed that the Trial Court shall take up both the suit on out of turn basis meaning thereby both the suits should have been heard together and in view of the prayer for a decree of divorce made in the later suit, the Learned Trial Court should have taken up the said suit first or should have considered the petition for withdrawal of the O.S. No. 342 of 2002 before taking up the suit for divorce being MAT Case No. 338 of 2003.

iv) It being an admitted position that during pendency of the above writ petition, repeated attempts of this Court for conciliation between the parties have failed, the Learned Court below should not have passed the impugned decree for restitution of conjugal rights, which on the face of it, is inappropriate.

v) As it would appear from the written statement filed by the Respondent-wife that she has denied all the allegations made in the plaint and indicated that there was no cause of action on the part of the Appellant-husband to file the said suit under Section 9 of the Act, the Learned Trial Court has committed an error of law in passing the impugned decree under Order 12, Rule 6, C.P.C. inasmuch as the said decree/order has been passed without hearing the Appellant-husband.

Mr. Mishra further submitted that after passing of the impugned order, the Learned Trial Court on 9.7.2004 took up the suit for divorce on which date both the parties appeared before him personally and agreed for a divorce and being directed again appeared during the second hour reiterating their agreement for divorce. But due to failure of agreement on the quantum of permanent alimony, the matter could not be settled. On that basis, Mr. Mishra contended that the Learned Court below ought to have decided the quantum of permanent alimony payable to the Respondent-wife keeping in view the amount of salary which the Appellant-husband receives and should not have proceeded to hear the suit for divorce on subsequent dates. In view of the above facts, the Learned Counsel submitted that since the marriage between the parties has broken down beyond repair and is irretrievable which is evident from the fact of failure of conciliation repeatedly attempted by this Court as well as the Learned Trial Court and the fact that both the parties agreed for divorce before the Learned Trial Court and the subsequent suit for divorce was taken up after passing the impugned order, this is a fit case where this Court by applying the ratio of the decision in the case of Naveen Kohli v. Neelu Kohli 2006 (2) Supreme 627 should allow the present appeal as well as direct the Learned Trial Court to pass a decree for divorce in order to bring an end to the dispute by fixing the permanent alimony to which the Respondent-wife may be entitled to.

5. The Respondent-wife though was originally represented by a Counsel, subsequently the said Counsel withdrew his power and she was heard in person in this appeal. Supporting the impugned order, the Respondent-wife has contended that the petition filed by the Appellant husband for withdrawal of the suit for restitution of conjugal rights being one under Order 23, Rule 1, C.P.C. seeking leave of the Court to withdraw the said suit and file a fresh suit, it cannot be presumed that the Appellant-husband wanted to withdraw the suit unconditionally. She further submitted that in view of specific admission in the written statement that she is willing to join the company of the Appellant husband, there is absolutely no illegality committed by the Learned Trial Court in passing impugned order under Order 12, Rule 6, C.P.C. for which she filed an application before the Learned Trial Court.

6. In view of the rival contentions of the parties advanced before this Court, the following points emerge for determination:

(i) Whether the Learned Trial Court has acted contrary to law in passing the impugned order dated 2.7.2004 without considering the application filed by the Appellant-husband for withdrawal of the said suit, much prior to the date of filing of the petition under Order 12, Rule 6, C.P.C. by the respondent wife?

(ii) Whether in view of the pleadings of the respective parties made in the plaint and the written statement, the Learned Trial Court could have exercised its jurisdiction in passing the decree under Order 12, Rule 6, C.P.C?

(iii) Whether, in view of the admitted fact that repeated attempts for conciliation and settlement of the dispute between the parties made by the Trial Court as well as this Court which did not succeed and the subsequent conduct of the parties, this Court, by taking judicial notice of the same, can direct the Learned Trial Court to pass a decree for divorce on finding that the marriage between the parties has broken down beyond repair and is irretrievable or in the alternative should pass a decree for divorce ?

7. Point Nos. (i) and (ii)

On examining the records of the Court below, it appears that the Appellant husband, as a matter of fact, filed an application seeking withdrawal of the petition for restitution of conjugal rights, in which, the impugned order has been passed. From the said impugned order dated 2.7.2004, it appears that the Learned Court below without taking into consideration the said petition filed by the Appellant husband for withdrawal of the case, proceeded to dispose of the case by applying the provisions of Order 12, Rule 6 C.P.C.

Order 12, Rule 6 C.P.C. prescribes that where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.

8. It, however, appears from the written statement filed by the Respondent-wife in the Court below, that the facts alleged in the petition filed by the Appellant-husband praying for restitution of conjugal rights, were not admitted in the said written statement. Rather, the facts alleged in each of the paragraphs of the petition were specifically denied in the written 'statement except that the respondent wife in her said written statement stated that she is ready to go to the house of the Appellant-husband and to lead happy conjugal life. As already stated, the Appellant-husband flied an application seeking a decree of divorce which was numbered as MAT Case No. 338 of 2003 on the same day, on which he flied the application for withdrawal of the petition for restitution of conjugal rights. From the record of the Court below, in the said MAT Case No. 338 of 2003, it would be seen that on 9.7.2004, the parties were present when the Court attempted a conciliation and on failure of which, the parties agreed for mutual divorce and not for reunion. However, as there was no agreement with regard to quantum of permanent alimony to be paid by the Appellant husband to the Respondent-wife, the conciliation failed.

9. It is, therefore, clear that there was no contingency which arose for the Court to apply the provisions of Order 12, Rule 6 C.P.C. to the facts of the case and pass the impugned order by applying the said provisions. It is also seen that though an application was pending for withdrawal of the petition seeking restitution of conjugal rights and the Learned Trial Court was also aware that the Appellant-husband has-filed a petition for divorce before it, which was pending and was directed to be disposed of along with the case for restitution of conjugal rights by this Court in the connected writ petition, but without taking cognizance of the petition for withdrawal of this case and also being oblivious of the direction issued by this Court, disposed of the case by applying the provisions of Order 12, Rule 6 C.P.C. This Court is of the view that in the facts of the present case, the provisions of Order 12, Rule 6 C.P.C. were not applicable at all and the impugned order having been passed without assigning any other reason, cannot be sustained which is accordingly set aside.

10. Point no. (iii)

With regard to the question as framed above in point no.(iii), Learned Counsel for the Appellant-husband relied upon the decision in the cases of Sneh Prabha (Smt.) v. Ravinder Kumar 1995 Supp (3) SCC 440 and Naveen Kohli (supra).

In the case of Sneh Prabha (supra), the Supreme Court was in seisin over an appeal arising out of a proceeding for restitution of conjugal rights. In the said case, the Trial Court granted the decree for restitution of conjugal rights to the Respondents therein. The appeal carried against the said decree was dismissed by the High Court against which the Appellant approached the Apex Court. Considering the developments in the said case and the conduct of the parties and taking into consideration the fact that the decree for restitution of conjugal rights has not been executed and the husband has flied a divorce petition which was pending in the Trial Court, the Supreme Court being satisfied that the marriage between the parties as irretrievably broken down, came to the conclusion that there is no chance of the parties living together. On that basis, the Supreme Court granted a decree of divorce to the parties with immediate effect and direct that the divorce petition pending before the Trial Court shall be deemed to have been disposed of in view of the decree of divorce granted by it. The facts of the said case are akin to the present case.

In the case of Naveen Kohli (supra), which arose out of the judgment of the High Court in a divorce petition, the Supreme Court while discussing what amounts to an irretrievable break down of marriage, in paragraphs-87, 88 and 89 of the said judgment came to the following conclusions:

87. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the Respondent against the Appellant and some proceedings have been initiated by the Appellant against the Respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.

88. The High Court ought to have visualized that preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties.

89. The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life.

While concluding as above, the Supreme Court also recommended the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable break down of marriage as a ground for grant of divorce.

11. Thus, the ratio of the above decision is that in case the Court finds that a marriage has broken down and even there, is no remote chance of the spouses coming together again meaning thereby that the marriage has become irretrievable, the Court instead of insisting the spouses to live together by granting a decree for restitution of conjugal rights, should, for the interest of the parties as well as the interest of the society, grant a decree of divorce in order to prevent the parties from continuing in the litigations. However, as irretrievable break down of marriage has not been prescribed as a ground for divorce in Section 13 of the Act, the Supreme Court recommended the Union of India to seriously consider in bringing an amendment to the said Section of the Act by incorporating irretrievable break down of marriage as a ground for divorce.

12. In view of the ratio of the above decision by application of Articles 141 and 142 of the Constitution of India, it can be construed that till the Legislature amends Section 13 of the Act as recommended by the Supreme Court irretrievable break down of marriage can be considered to be a ground for grant of a decree of divorce.

13. Coming to the facts of the present case, as has been stated above, it is clear that the parties are in litigating terms for the last more than four years. Several attempts have been made for conciliation between the Appellant-husband and Respondent-wife, both, by the Learned Trial Court as well as this Court, in the previously filed writ petition and -in the present appeal All such attempts have become unsuccessful for some reason or the other and from the conduct of the parties, it has become clear that it is not possible for them to reside under the same roof. As a matter of fact, at one point of time before the Learned Trial Court, both the parties agreed for a mutual divorce but the same failed as the quantum of permanent alimony could not be agreed upon by the parties. This Court is of the view that it will not be appropriate to compel the parties to stay together as the marriage between them has broken down irretrievably. In such state of affairs, if the parties are compelled to live together, it would not only be contrary to their interest but also the interest of the society. The matrimonial bond has come to a position where it is beyond repair.

14. In view of the above, applying the ratio in the case of Naveen Kohli (supra) and the ratio of the decision in the case of Sneh Prabha (supra) while setting aside the impugned order of restitution of conjugal rights and the decree following the said order, this Court doth here by grant a decree of divorce between the Appellant-husband and the Respondent-wife with immediate effect subject to the Appellant paying Rs. 8.00 lakhs (Rupees eight lakhs) as permanent alimony to the Respondent-wife within a period of six months from today.

Out of the above amount of Rs.8.00 lakhs (Rupees eight lakhs), the Appellant husband shall pay an amount of Rs. 5.00 lakhs (Rupees five lakhs) to the Respondent-wife, in shape of a Bank Draft in her name, drawn on any Nationalized Bank at Cuttack and shall make a fixed deposit of the balance amount of Rs. 3.00 lakhs (Rupees three lakhs) in the name of their son for a period of five years which the Respondent-wife shall renew after its maturity for such period till the son attains the age of majority. The fixed deposit receipt so made by the Appellant-husband shall also be handed over to the respondent wife along with draft within the stipulated period.

It also appears from the orders passed by this Court in the present appeal that the interim monthly maintenance as was directed to be paid by the Appellant-husband to the Respondent-wife has been paid till the month of February, 2006.

The Appellant husband is further directed to pay the interim maintenance at the rate of Rs. 3,000/- (Rupees three thousand) per month for the period from the month of March, 2006 to November, 2006, i.e. for nine months to the Respondent-wife within a period of one month from today. In event of failure of either the permanent alimony or the arrear interim maintenance within the period specified above, the decree of divorce will not be given effect to.

15. The appeal is accordingly allowed. Consequently, MAT Case No. 338 of 2003 pending before the Learned Civil Judge (Senior Division), Bhubaneswar stands disposed of.