F.A. No.354 of 2005

12th May, 2005

Petitioner Counsel: AMIT VERMA

Cases Cited:
Smt. Sureshta Devi Vs. Om Prakash, (1991)2 SCC 25 [Para 6,8,14]
A. Jayachandra Vs. Aneel Kaur, 2005(5) ALL MR 313 (S.C.)=(2005)2 SCC 22 [Para 11]

JUDGMENT

DIPAK MISRA, J.:- Being dissatisfied with and aggrieved by the judgment and decree dated 9-3-2005 passed by the learned Judge of the Family Court, Bhopal in R. C. S. No.386-A/2004 whereby the Court below has refused to entertain an application preferred under Section 13-B of the Hindu Marriage Act, 1955 (for brevity 'the Act') the appellants have preferred the present appeal.

2. The facts in a nutshell are that the marriage between the appellant No.1 and appellant No.2 was solemnized on 16-2-2002 at Bhopal. After living for a short span of time together the husband and wife realized that they could not sustain the relationship and the incompatibility had come to such incurable state that it was thought apposite to seek divorce by mutual consent rather than to live together and fight a battle royal which was nothing but a sysiphian endeavour to maintain a show of relationship which actually was not. It was felt that the intervention of the parents of both the parties to cement the relationship became an exercise in futility and all efforts to steer and pave the way for relationship in harmony became ineffectual, and discord and dissention remained in constant continuum. The parties realized that there was no conceivability or any acceptable prospect of arriving at a state of adaptability and accord and under these circumstances they filed a joint application seeking dissolution of marriage and obtainment of a decree by mutual consent on 3-9-2004. They filed affidavits in support of their application. The family Judge directed the parties to remain personally present on 9-3-2005 and both of them in categorical, unequivocal terms and in unambiguous manner stated they were living separately from December, 2003 and there was no possibility of living together and hence, decree for mutual divorce should be granted.

3. The learned Family Judge dismissed the application on the bedrock that as per the statement of the appellants before him they were staying separately from December, 2003 and the application preferred under Section 13-B of the Act was presented on 3-9-2004 before the Court and, therefore, the requisite condition stipulated under Section 13-B(1) of the Act was not complied with inasmuch as they were living separately for less than one year. The said judgment is the subject-matter of challenge in this appeal.

4. To understand the fact situation on the bedrock and substratum of law we had directed both appellants to remain personally present before us. The matter was taken up in camera. The appellants categorically expressed that they are not in a position to stay together. Affidavits have been filed to pyramid the stance that why and under what circumstances the marriage has gone beyond tolerance latitude and how the bitterness has entered into the marrows of relationship. In the affidavit filed by the wife it has been stated in clear cut terms that there has been no resumption of co-habitation while they were living together and they are not discharging any marital obligation and the marriage between them has broken down irretrievably. It has also been asseverated that there is no cavil relating to maintenance and there is no prospect for any redemption.

5. An affidavit has been filed by the husband wherein it has been unqualifiedly stated that due to serious dispute between the husband and wife they have been staying separately but prior to that there was total cessation of relationship and question of any kind of resuscitation and revival of relationship is in the realm of impossibility.

6. We have heard Mr. Amit Verma, learned counsel for the appellants. It is the proposement of Mr. Verma that though the appellants stated before the Family Judge that they were staying separately for less than one year under certain circumstances, it has to be given a connotative and broader meaning and not a literal one and if the Court is satisfied that the marriage has become irredeemable and there is no possibility of reconciliation a decree for divorce should be granted. Learned counsel has commended us to the decision rendered in the case of Smt. Sureshta Devi Vs. Om Prakash, (1991)2 SCC 25.

7. To appreciate the submissions raised by Mr. Verma it is condign to reproduce Section 13-B of the Act which reads as under:-

"13-B Divorce by mutual consent.- (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree."

8. The anatomy of the said provision was scanned in the case of Smt. Sureshta Devi (supra) and their Lordships in paragraph 8 has held as under :-

"8. There are three other requirements in sub-section (1). They are

(i) They have been living separately for a period of one year.

(ii) They have not been able to live together, and

(iii) They have mutually agreed that marriage should be dissolved."

9. Thereafter, in paragraph 9 'living separately' for a period of one year was interpreted and the Apex Court held as under:-

"9. The 'living separately' for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression 'living separately', connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they 'have not been able to live together' seems to indicate the, concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved."

10. We are conscious that the marriage between the parties moulds the mind of the couple, chasten their heart, enliven their values and make them kind human beings and with the passage of time the mind talks to mind and the soul talks to the soul. Not for nothing a death of spouse is difficult to tolerate. W.B. Yeats while speaking about the vision of the relationship has stated: 'Red Rose, proud Rose, said Rose of all my days'. If we permit ourselves to say so, the relationship in entirety has been encapsulled in a floral symbol. When spouse expires and the mortal frame leaves the mundane world the other spouse mourns in a different tone and when asked to state, may state, to quote, William Shakespeare:

"If thou didst ever hold me in thy heart, Absent thee from felicity awhile. And in this harsh world draw thy breath in pain To tell my story".

11. In this context, we may refer with profit a three Judge Bench decision of the Apex Court rendered in the case of A. Jayachandra Vs. Aneel Kaur, (2005)2 SCC 22 : [2005(5) ALL MR 313 (S.C.)] wherein their Lordships stated thus :- (para 2)

"2. Parties to a marriage tying nuptial knot are supposed to bring about the union of souls. It creates a new relationship of love, affection, care and concern between the husband and wife. According to Hindu Vedic Philosophy it is sanskar-a sacrament; one of the sixteen important sacraments essential to be taken during one's lifetime. There may be physical union as a result of marriage for procreation to perpetuate the lineal progeny for ensuring spiritual salvation and performance of religious rites, but what is essentially contemplated is union of two souls. Marriage is considered to be a junction of three important duties i.e., social, religious and spiritual."

12. Thereafter, in paragraph 14 of the said Judgment it has been held as under :-

"14. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper-sensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court."

13. The life hidden behind every atom and the light shining in every creature are epitomized in husband and wife's relationship. But, a pregnant one, when a sense of compatibility gets totally buried, ones own mental concepts and imagination get absolutely centralized, mud slinging becomes the primary duty and the bitterness reigns supreme and the divine love that is required to bring harmony gets metamorphosed to evil conscience and total distress, marriage though as an institution lives and shall live for ever but nevertheless the marriage between the individuals becomes irredeemable and irretrievable.

14. In the case at hand, as is perceptible, all requirements were satisfied. The appellants had appeared before the learned Family Judge, expressed their consent in a most explicit manner, they stated in unequivocal manner about the stage they have reached and how the differences have garnered and galvanized into the height of mount Everest never to have the peace of the Pacific. The only ground that weighed with the learned Family Judge is that they had not been living separately for a period of one year. On a perusal of the pleading and having attempted reconciliation at the appellate stage we are absolutely convinced that the interpretation placed by the Apex Court in the case of Surestha Devi (supra) squarely applies to the case at hand. Affidavits clearly reveal that before staying physically separate they had stayed separately by mind and soul and there was no performance of marital obligations. Ergo, we have no hesitation in dislodging the Judgment passed by the learned Family Judge and conclude that the appellants are entitled to a decree of divorce and it is so directed.

15. Ex consequenti, the appeal is allowed.

Appeal allowed.