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Ashok Hurra v/s Rupta Bipin Zaveri

Civil Appeal No. 1843 of 1997. (Arrising out of S.L.P.
(C) No. 20097 of 1996)
Decided On, 10 March 1997

At, Supreme Court of India

By, THE HONOURABLE MR. JUSTICE M.M. PUNCHHI & THE HONOURABLE MR.
JUSTICE K.S. PARIPOORNAN
For the Appellants :- Mr. R.K. Jain, Senior Advocate with Mr. A.P. Medh and Mr.
Ganapathi, Advocates. For the Respondent :- Mr. Arun Jaitley, Senior Advocate with
Mr. Janak Shah, Mr. Mayur Shah and Ms. Kamini Jaiswal, Advocates.

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Forward Referenced In:-

general :- 2010 AIR (SC) 1099, Manish Goel Versus Rohini Goel] (/Manish-Goel-Versus-Rohini-Goel-2010-02-
05)

general :- 2002 AIR (SC) 591, Savitri Pandey versus Prem Chandra Pandey ] (/Savitri-Pandey-versus-Prem-
Chandra-Pandey-2002-01-08)
Judgment Text
K.S. Paripoornan, J.

Special leave granted in both cases. The main appeal is the one arising out of Special Leave Petition (C) No.
20097 of 1996. The said appeal is filed against the judgment and order of the Gujarat High Court rendered in
L.P.A. No. 373 of 1996. The appellant in both the appeals is Sri Ashok G Hurra (the husband) and the
respondent in both the appeals is Rupa Ashok, Hurra (the wife). We will deal with the facts in the main appeal
which is covered by Special Leave Petition No. 20097 of 1996.

2. The marriage between the appellant (husband) and the respondent (wife) was solemnized on 3-12-1970
according to the Hindu rites and custom at Ahmedabad. The couple have no issue. It seems difference of
opinion cropped up between the parties. Presumably it persisted and so they could not stay together. On 30-6-
1993, the wife left the matrimonial home. Thereafter, the couple started residing separately. On 21-8-1994, a
joint petition for divorce was filed under S. 13B of the Hindu Marriage Act. It was signed by both the parties and
both of them appeared before Court, Both of them are highly educated and intelligent and managing their own
affairs and business. In the joint petition, it was averred that all the matters regarding ornaments, clothes and
other movables were settled between them and the wife had renounced her right to claim maintenance. The
parties simply sought a decree of dissolution of the marriage by mutual consent.

3. Under S. 13B (2) of the Hindu Marriage Act (hereinafter referred to as 'the Act'), on a motion by both the
parties, six months after the date of presentation of the petition under sub-section (1) of the Act, and not later
than eighteen months, the Court, shall, after enquiry, pass a decree of divorce by mutual consent. On 4-4-1985,
the husband alone moved an application praying for passing a decree of divorce. On this motion, the Court
issued notice to the wife. It is seen that the hearing of the petition commenced on 15-4-1985. On that day, on
that day, on the joint application of the advocates of both the parties, the case was adjourned. Subsequently,
the case stood posted to various dates and for one reason or other, it got itself adjourned. In the meanwhile,
attempts were made by the trial Judge to bring about reconciliation between the husband and the wife. But, it
was not successful. Such attempts were on 30-9-1985, 10-10-1985, 30-10-1985, 9-12-1985, 16-12-1985, 10-1-
1986 etc. Most of the requests for adjournments were made jointly by the advocates appearing for the parties.
In all such requests, mention was made that talks of compromise/settlement between the parties were going
on.

4. On 27-3-1986, the wife filed an application withdrawing her consent for divorce. She prayed that petition for
divorce by mutual consent may be dismissed. This submission was objected to by the appellant, denying the
averments made in the application and also stating further that the wife has no right to revoke the consent
which she has legally granted. The husband filed an affidavit-in reply on 9-4-1986 and contended that the wife
has no right to withdraw of revoke the consent after the period of 18 months, He also prayed that consistent
with the prayer made in the joint Hindu Marriage petition filed on 21-8-1984 a decree for divorce by mutual
consent may be passed. The wife seems to have filed an objection thereto.

5. After hearing the parties, the learned City Civil Judge (the trial Court) held that since consent was withdrawn
before the decree could be passed, it has to be accepted and, in this view, dismissed the petition for divorce by
mutual consent. In the appeal filed by the husband, a learned single Judge of the Gujarat High Court in First
Appeal No. 1070 of 1987, by judgment dated 15-3-1996, after a revi
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ew of the entire facts and the relevant law on the subject, came to the following conclusions :-

(1) that all the ingredients of S. 13B (1) of the Act were satisfied when the petition was filed;

(2) that for a period of six months thereafter the parties have continued to live separate and have not cohabited
or stayed together as husband and wife;

(3) that the wife withdrew her consent after the expiry of the period of 18 months from the date of the institution
of the petition;

(4) that the revocation of consent after the prescribed period under S. 13B (2), (18 months) by the wife was not
based on true or correct ground but a false pretext, ruse, or non-existent ground put forward by her to justify
revocation of her consent;

(5) that under S. 13B (2), once the period of interregnum or transitional period starting from six months from the
date of presentation of the petition till the expiry of the period of 18 months from the date of the petition was
over, and if the petition is not withdrawn or consent is not revoked in the meantime, the Court shall pass a
decree and the limited enquiry to be made under S. 13B (2) is to the effect that :

(i) the marriage has been solemnised;

(ii) the averments made in the petition, namely,

(a) that the parties have separated for a period of one year or more, and

(b) they have not been able to live together; and

(c) that they have mutually agreed that the marriage should be dissolved."

6. On the basis of the above and in view of the fact that the marriage between the husband and wife has
irretrievably broken down and reunion is not at all possible, the learned single Judge set aside the order passed
in Hindu Marriage Petition No. 248 of 1984 dated 17-10-1986 by the trial Court and passed the decree of
dissolution of marriage from the date of the petition.

7. In the Letters Patent Appeal No. 373/96, filed by the respondent herein (the wife), a Division Bench of the
Gujarat High Court, by judgment dated 9-9-1996, set aside the order of the learned single Judge and concluded
thus :

"........... the wife withdrew her consent even before the trial Court could make an inquiry. The trial Court, was
therefore, right in dismissing the application submitted under S. 13B of the Act. There is no requirement in law
that the party withdrawing consent must give reasons or the withdrawal must be based on reasonable grounds.
Irretrievable breakdown of marriage by itself is not a sufficient ground for dissolution of a marriage, as held by
the Apex Court. In the result, we quash and set aside the order passed by learned single Judge granting decree
of dissolution of marriage solemnized between the parties herein and the order passed by the trial Court is
restored. We direct the Principal Judge, City Civil Court, Ahmedabad to forthwith assign HMP N0. 328 of 1994
filed by husband to a learned Judge of that Court, with a request to dispose of the petition within a period of
two months from the receipt of the writ."

It is against the judgment of the Division Bench rendered in the Letters Patent Appeal No. 373 of 1996, the
husband, as appellant, filed this appeal after obtaining special leave.

8. Certain facts which are discernible from the records and have some impact in the decision to be rendered,
deserve to be noticed, at this stage :

The learned single Judge in his judgment rendered in First Appeal No. 1070 of 1987 has stated that the
appellant/husband remarried with one Sonia on 18-8-1985 and a male child named Prasad was born out of the
said wedlock. The respondent/wife filed a suit on 1-8-1994 in the City Civil Court for a declaration that the
judgment and decree of the City Civil Court dated 17-10-1986 in Hindu Marriage petition was still subsisting
and that relation of appellant-husband with Sonia was illegal and that the child out of such marriage was
illegitimate and that the appellant-husband should be restrained from describing Sonia as his wife. It also
appears that on 15-9-1994 the appellant-husband filed another petition for dissolution of marriage against
respondent wife (HMP No. 328 of 1994) on the ground of unchastity of the respondent-wife alleging large
number of pornographic relations which she is alleged to have with her father and other persons and also under
S. 13(1) alleging that the wife has for a continuous period of not less than two years immediately preceding the
presentation of the petition deserted the husband. (See-paragraphs 54 and 55 in F.A. No. 1070 of 1987).
Regarding the subsequent petition filed by the husband and the reply thereto filed by the wife, the learned
single Judge, in paragraph 56, has stated thus :

"............ The allegations made therein by each against the other are so vulgar and centering round the science
or pornography that this Court feels that detailed reference to such facts would even pollute the present
matrimonial proceeding. This Court has, therefore, refrained itself from making reference to such allegations
made in the subsequent petition by the husband against wife and the allegations made by the wife against the
husband in her reply. Undoubtedly, a very strong feeling and impression is created in the mind of this Court that
not only no re-union or reconciliation between the spouses was possible at any stage after the institution of
petition for divorce by mutual consent under S. 13B on 21-8-1984, the parties were convinced that the marriage
was irretrievably broken. Thus Court also finds that no useful purpose would be served by prolonging and/or
procrastinating the miseries of two spouses when the very purpose of happy married life was lost." (Emphasis
supplied)

9. On 15th September, 1994, the appellant/husband also filed a criminal complaint under Ss. 497 and 498 read
with S. 347 of the Indian Penal Code. The respondent-wife filed a criminal complaint on 14th November, 1994
against the appellant- husband and Sonia under S. 494 of the Indian Penal Code on the ground that the second
marriage of the husband with Sonia was bigamous marriage and was prohibited under S. 17 of the Act.

10. We heard counsel.

11. Mr. R. K. Jain, Senior Counsel, for the appellant submitted thus :

(1) The trial Court erred in dismissing the joint application filed by the parties under Section 13B of the Act. The
respondent/wife had no locus or competency to withdraw her consent after the period of 18 months specified in
Section 13B (2) of the Act.

(2) The trial Court as well as the Division Bench of the Gujarat High Court which heard the Letters Patent Appeal
overlooked the crucial words occurring in Sections 13B (1) and 13B (2) of the Act. Under Section 13B (1) of the
Act, a petition for dissolution of marriage by a decree of divorce should be presented by both the parties
together. But, under Section 13B (2), for making the motion for passing a decree, after the period of six months,
both the parties need not be present. In this case, the joint petition for dissolution of marriage by a decree of
divorce was presented by the husband and wife together in compliance with Section 13B (1) of the Act. All the
three ingredients were satisfied when the joint petition was filed by the parties, namely, (a) that they have
separated for a period of one year or more; (b) that they have not been able to live together and (c) that they
have mutually agreed to dissolve the marriage. The motion for passing a decree was made after six months of
the date of presentation of the petition by the husband for which the wife had notice and this is sufficient
compliance of Section 13B (2) of the Act. Since the wife had not withdrawn her consent within the period of 18
months after the date of presentation of the petition, the trial Court was obliged to pass a decree of divorce
after hearing the parties.

(3) In any view of the matter, from the strained relationship between the parties for over 13 years, and the
"Kilkenny fight" between the parties, who are educated persons, it is evident, that the marriage has irretrievably
broken down with no chance or re-union and so this Court by taking into account, the totality of the facts and
circumstances in this exceptional case, should pass a decree of divorce, with appropriate directions, in order to
do complete justice in the matter.

12. On the other hand. Mr. Jaitley. Senior Counsel for the respondent stated thus :

(1) It is true, that a joint petition for dissolution of marriage by a decree of divorce was made by both the parties
together and the requirements of Section 13B (1) are satisfied. Under-Section 13B (2) of the Act, in order to
pass a decree after the period of six months, a motion should be made by both the parties. It is not so in this
case. The motion was made only by the husband. It is incompetent.

(2) The respondent/wife had withdrawn the consent before the enquiry, at any rate, before the decree under
Section 13B (2) could be passed. Consent for dissolution should be present at the time of filing the joint
application as also on the date when the decree has to be passed. The expiry of 18 months from the date of
filing of the petition is irrelevant.

(3) Notwithstanding the strained relationship between the parities and other factors urged to show that the
marriage has broken down irretrievably, the conduct of the appellant/husband disentitles him to any relief.
Indeed, when the proceedings were still pending in the trial Court the appellant married a second time and got a
made child. Thereby, he committed a wrong. He cannot take advantage of his own wrong and cannot invoke
the jurisdiction of this Court by urging it as a ground for passing a decree of divorce in order to do complete
justice in the matter.

13. Counsel on both sides placed their respective interpretation of Section 13B of the Hindu Marriage Act.
Section 13B of the Act reads as follows :

"13B. (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
enquiry 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." (Emphasis
supplied)

14. Mr. Jaitely, Counsel for the respondent, heavily relied on the decision of this court in Sureshta Devi v. Om
Prakash, 1991(1) SCR 274 and contended that it is open to one of the parties at any time till the decree of
divorce is passed withdraw the consent given to the petition, and mutual consent to the divorce is a sine qua
non for passing a decree for divorce under Section 13B of the Act. Mutual consent should continue till the
divorce decree is passed. It is positive requirement for the Court to pass a decree of divorce. Since this crucial
or vital aspect is absent in this case, counsel argued that the matter is concluded and that it is unnecessary to
consider the other aspects urged regarding Section 13B of the Act or to focus attention on the totality of the
circumstances to consider whether any other appropriate order should be passed by this Court at this juncture.

15. On the other hand, counsel for the appellant Mr. Jain, contended that the actual issue involved in Sureshta
Devi's case (AIR 1992 SC 1904) (supra) was in a narrow compass, namely, whether the consent given can be
unilaterally withdrawn. In that case, the consent was withdrawn within the period of 18 months and no question
arose as to whether the consent can be withdrawn 18 months after the filing of the joint petition and so the
decision is distinguishable. But the Court considered the larger question as to whether it is open to one of the
parties till the decree of divorce is passed, to withdraw the consent given to the petition. The decision on the
larger question is only obiter and the decision requires reconsideration. That apart, this Court has got the power
to consider the totality of the circumstances, including the subsequent events, in order to do complete justice in
the matter, which are the following :

The pendency of the proceedings for a long period of over 12 years, the acrimonious battle between the parties
the allegations and counter allegations made by the parties, the fact that the marriage is dead or has broken
down irretrievably without any chance of re-union between the parties, that continuance of the stalemate is only
a futility leading to a tortuous life for both and continued agony and that the parties are living separately for
more than 13 years - these should weigh with the Court to grant a decree for divorce by mutual consent under
Section 13B of the Act and dissolve the marriage between them and give appropriate directions including
provision of reasonable/adequate funds for the wife to have a decent living and it was indicated that a lump
sum payment of Rs. 4/5 lakhs may be reasonable. Counsel also stressed the fact that in the joint petition filed
for divorce, it is stated that all matters regarding ornaments, clothes, moveables, etc. were settled between the
parties and the wife has renounced her right to claim maintenance and this should be taken into consideration.
Counsel on both sides brought to our notice few decisions of the different High Courts and of this Court to
substantiate their pleas.

16. We are of the opinion that in the light of the fact situation present in this case, the conduct of the parties, the
admissions made by the parties in the joint petition filed in Court, and the offer made by appellant's counsel for
settlement, which appears to be bona fide, and the conclusion reached by us on an overall view of the matter, it
may not be necessary to deal with the rival pleas urged by the parties regarding the scope of Section 13B of the
Act and the correctness or otherwise of the earlier decision of this Court in Sureshta Devi's case (AIR 1992 SC
1904) (supra) or the various High Court decisions brought to our notice, in detail. However, with great respect to
the learned Judges who rendered the decision in Sureshta Devi's case (supra), certain observations therein
seem to be very wise and may require reconsideration in an appropriate case. In the said case, the facts were :-

The appellant (wife) before this Court married the respondent therein on 21-11-1968. They did not stay together
from 9-12-1984 onwards. On 9-1-1985, the husband and wife together moved a petition under Section 13B of
the Act for divorce by mutual consent. The Court recorded statements of the parties. On 15-1-1985, the wife
filed an application in the Court stating that her statement dated 9-1-1985 was obtained under pressure and
threat. She prayed for withdrawal of her consent for the petition filed under Section 13B and also prayed for
dismissal of the petition. The District Judge dismissed the petition filed under Section 13B of the Act. In appeal,
the High Court observed that the spouse who has given consent to a petition for divorce cannot unilaterally
withdraw the consent and such withdrawal, however, would not take away the jurisdiction of the Court to
dissolve the marriage by mutual consent, if the consent was otherwise free. It was found that the appellant
(wife) gave her consent to the petition without any force, fraud or undue influence and so she was bound by that
consent. The issue that came up for consideration before this Court was, whether a party to a petition for
divorce by mutual consent under Section 13B of the Act, can unilaterally withdraw the consent and whether the
consent once given is irrevocable. It was undisputed that the consent was withdrawn within a week from the
date of filing of the joint partition petition under Section 13B. It was within the time limit prescribed under
Section 138(2) of the Act. On the above premises, the crucial question was whether the consent given could be
unilaterally withdrawn. The question as to whether a party to a joint application filed under Section 13B of the
Act can withdraw the consent beyond the time limit provided under Section 13B (2) of the Act did not arise for
consideration. It was not in issue at all. Even so, the Court considered the larger question as to whether it is
open to one of the parties at any time till a decree of divorce is passed to withdraw the consent given to the
petition. In considering the larger issue, conflicting views of the High Courts were adverted to and finally the
Court held that the mutual consent should continue till the divorce decree is passed. In the light of the clear
import of the language employed in Sections 13B (2) of the Act, it appears that in a joint petition duly filed under
Section 13B (1) of the Act, motion of both parties should be made six months after the date of filing of the
petition and not later than 18 months, if the petition is not withdrawn in the meantime. In other words, the
period of interregnum of 6 to 18 months was intended to give time and opportunity to the parties to have a
second thought and change the mind. If it is not so done within the outer limit of 18 months, the petition duly
filed under Section 13B (1) and still pending shall be adjudicated by the Court as provided in Section 13B (2) of
the Act. It appears to us, the observations of this Court to the effect that mutual consent should continue till the
divorce decree is passed, even if the petition is not withdrawn by one of the parties within the period of 18
months, appears to be too wide and does not logically accord with Section 13B (2) of the Act. However, it is
unnecessary to decide this vexed issue in this case, since we have reached the conclusion on the fact situation
herein. The decision in Sureshta Devi's case (AIR 1992 SC 1904) (supra) may require reconsideration in an
appropriate case. We leave it there.

17. Now we shall advert to the findings arrived at by the learned single Judge and the Division Bench in the
Letters Patent Appeal. In paragraph 56 of the judgment, the learned single Judge has found thus :

"Undoubtedly, a very strong feeling and impression is created in the mind of this Court that not only no re-union
or reconciliation between the spouses was possible at any stage after the institution of petition for divorce by
mutual consent under Section 13B on 21-8-1984, the parties were convinced that the marriage was irretrievably
broken. This Court also finds that no useful purpose would be served by prolonging and/or procrastinating the
miseries of two spouses when the very purpose of happy married life was lost. .................. Parties have now
resorted to various civil and criminal proceedings against each other." (Emphasis supplied)

Again in paragraph 59 of the judgment, the Court found thus :

"The fact situation which prevails before this Court though not fully comparable to the facts can be said to be
indentical, the rupture in the marital tie is created much earlier and admittedly the parties have started residing
separately since 1983 and after full under standing and consideration of facts they had filed petition for divorce
by mutual consent in the year 1984. The husband has thereafter remarried Sonia and had a child out of such
wedlock. The wife has thereafter filed civil suit for declaration about the status of second wife and child born
out of such marriage and also criminal complaint. The husband has also in his turn filed petition for dissolution
of marriage and also a criminal complaint. The fact that there is no possibility of reunion is clearly established
and is in no uncertain terms admitted by the wife before the Court. The obvious conclusion is that she had
resolved not only to live in agony but to make life of her husband miserable too ..........In the fact situation
obtaining before this Court it can safely conclude that the marriage between the parties has been irretrievably
broken and that there is no chance of their coming together or living together."
(Emphasis supplied)

Again in paragraph 72 of the judgment, the learned single Judge stated thus :

"However, in my opinion, in view of the decisions of the Apex Court, in the subsequent decision, namely in the
case Chandrakala Menon v. Vipin Menon, 1993(2) SCC 6; in the case of V. Bhagat v. D. Bhagat, 1994(1) SCC
337 in the case of Chandrakala Trivedi v. Dr. S.P. Trivedi, 1993(4) SCC 232; and in the case of Romesh Chander
v. Smt. Savitri, 1995(1) JT (SC) 362 when the Court comes to the conclusion that the marriage is irretrievably
broken and that there was no possibility of re-union or reconciliation between the parties and that ingredients of
S. 23(1) (bb) were non-existent ; i.e. there was free consent to a joint petition for divorce by mutual consent by
both the parities, the Court can and shall have to pass a decree for dissolution of marriage by mutual consent
as the very legislative intent behind enacting such a provision would be rendered meaningless if it would render
the provision to lead to position of perpetuation or procrastination of agonies and miseries of the separated
spouses despite the realisation that no reconciliation was possible."

(Emphasis supplied)

18. In the Letters Patent Appeal, the Division Bench entered the following findings :-

(i) Irretrievable break down of marriage is not a ground by itself to grant a decree of dissolution of marriage;

(ii) Even if a decree of dissolution could have been granted, it could not have granted from the date of the
petition, but it could have been granted only from the date of the decree;

(iii) In the facts and circumstances of the case, even if discretion is vested in this Court, this Court would not like
to exercise the discretion looking to the conduct of the husband i.e. (1) remarriage during the subsistence of the
first marriage and during the pendency of the petition, (2) participating in reconciliation proceedings knowing
fully well that he cannot accept appellant as his wife any more as he has remarried, and (3) unnecessarily
prolonging the matter;

(iv) We would just say that this Court has no power similar to Article 142 of the Constitution and even if similar
powers are conferred, in the peculiar facts and circumstances of the instant case, it would not be proper on our
part to exercise such powers;

(v) Summing up, we must say that there is not a single case where the consent was withdrawn before the stage
of inquiry and yet the Court passed a decree of divorce with effect from the date of the application; there is not
a single case whether either the husband or wife remarried during the subsistence of the first marriage and yet
the Court has passed a decree of dissolution of the first marriage which would benefit a party who has
committed a wrong. On the contrary, the Apex Court has refused to grant a decree on the ground of irretrievable
break down of marriage as during the pendency of the appeal, husband remarried. The paramount
consideration should be that a party who comes to the Court with clean hands should be assisted. Power may
be exercised in favour of the party who comes to the Court with clean hands

19. After considering the matter in detail, we find that the appellate Court has not disputed the following :

(a) the marriage between the parties is dead and has irretrievably broken down;

(b) there are allegations and counter-allegations between the parties and also litigations in various courts and no
love is lost between them;

(c) there is delay in the disposal of the matter;

(d) the husband has married again and has got a child; and

(e) the wife has not withdrawn her consent lawfully given for a period of 18 months and it is not a case where
the consent given is revoked on the ground that it is vitiated by fraud or undue influence or mistake etc.

(f) That the joint petition filed in Court by the parties stated (a) that the parties have settled all the matters and
the wife had renounced her right to claim maintenance and (b) what the parties prayed for, was only a decree of
dissolution of the marriage by mutual consent.

20. It appears to us that the appellate Court was swayed by the fact that the appellant/husband has not come
to Court with clean hands; in that he married during the pendency of the proceedings. It may be, as expressed
by the appellants Court that facts such as the marriage is dead and has broken down irretrievably, that there
was no change of re-union, that there were allegations and counter allegations made by the parties, that the
parties were residing separately for nearly 13 years- each one of the above facts by itself (individually) may not
afford a ground for divorce by mutual consent.

21. When the matter was pending in this Court, there were attempts to settle the matter. But finally counsel on
both sides reported that there is no scope for settlement between the parties.

22. We are of the view that the cumulative effect of the various aspects in the case indisputably point out that
the marriage is dead, both emotionally and practically and there is no chance at all of the same being revived
and continuation of such relationship is only for name-sake and that no love is lost between the parties, who
have been fighting like "Kilkenny cats" and there is long lapse of years since the filing of the petition and
existence of such a state of affairs warrant the exercise of the jurisdiction of this Court under Article 142 of the
Constitution and grant a decree of divorce by mutual consent under Section 13B of the Act and dissolve the
marriage between the parties, in order to meet the ends of justice, in all the circumstances of the case subject
to certain safeguards. Appropriate safeguard or provision for the respondent/wife to enable her to have a
decent living should be made. The appellant is a well to do person and is a Doctor. He seems to be affluent
being a member of the medical fraternity. But his conduct during litigation is not above board. The suggestion
or offer of a lump sum payment of rupees four to five lakhs, towards provision for wife, is totally insufficient, in
modern days of high cost of living and particularly for a woman of the status of the respondent. At least, a sum
of about Rs. 10,000/- p.m. will be necessary for a reasonable living. Taking into account all aspects appearing in
the case, more so the conduct of the parties and the admissions contained in the joint petition filed in Court, we
hold that the respondent (wife) should be paid, a lump sum of a rupees ten lakhs (Rs. 10 lakhs) (and her costs in
this litigation as estimated by use) on or before 10-12-1997 as mentioned herein below, as a condition
precedent for the decree passed by this Court to take effect.

23. There is no useful purpose served in prolonging the agony any further and the curtain should be rung at
some stage. In coming to the above conclusion, we have not lost sight of the fact that the conduct of the
husband is blame-worthy in that he married a second time and got a child during the pendency of the
proceedings. But that factor cannot be blown out of proportion or viewed in isolation, nor can deter this Court
to take a total and broad view of the ground realities of the situation when we deal with adjustment of human
relationship. We are fortified in reaching the conclusion aforesaid by a decision of this Court reported in
Chandrakala Memon v. Vipin Memon, 1993(2) SCC 6. Earlier decisions of this Court in Chandrakala Trivedi v. Dr.
S.P. Trivedi, 1993(4) SCC 232; V. Bhagat v. D. Bhagat, 1994(1) SCC 337 and Romesh Chander v. Smt. Savitri,
1995(1) JT (SC) 362 also afford useful guidelines in the matter.

24. A few excerpts from the Seventy-first Report of the Law Commission of India on the Hindu Marriage Act,
1955- "Irretrievable break down of marriage"- dated April 7, 1978 throw much light on the matter;

Irretrievable breakdown of marriage is now considered, in the laws of a number of countries, good ground of
dissolving the marriage by granting a decree of divorce ............ ... ....

Proof of such a breakdown would be that the husband and wife have separated and have been living apart for,
say, a period of five or ten years and it has become impossible to resurrect the marriage or to reunite the
parties. It is stated that once it is known that there are no prospects of the success of the marriage, to drag the
legal tie acts as a cruelty to the spouse and gives rise to crime and even abuse of religion to obtain annulment
of marriage. ......... ..... .... .....

The theoretical basis for introducing irretrievable break down as a ground of divorce is one with which, by now,
lawyers and others have become familiar. Restricting the ground divorce to a particular offence or matrimonial
disability, it is urged, causes injustice in those cases where the situation is such that although none of the
parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet
there has arisen a situation in which the marriage cannot be worked. The marriage has all the external
appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of
which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the
marriage as a facade, when the emotional and other bounds which are of the essence of marriage have
disappeared.

After the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce. The
parties alone can decide whether their mutual relationship provides the fulfilment which they seek. Divorce
should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with
the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new
situation and developments by working out the most satisfactory basis upon which may regulate their
relationship in the changed circumstances. ..... ....... .... ...... ....
Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to
offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in
common, things of the matter and of the spirit and from showering love and affection on one's offspring. Living
together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such
sharing. It is indicative of a disruption of the essence of marriage "breakdown" and if it continues for a fairly
long period, it would indicate destruction of the essence or marriage "irretrievable breakdown."

25. S. L. P. No. 6443 of 1995 was filed earlier by the appellant herein praying that this Hon'ble Court may be
pleased to invoke Article 142 of the Constitution of India and pass appropriate orders granting a decree of
divorce. The special Leave petition was filed against the order of a single Judge of the Gujarat High Court in
Civil Application No. 949 of 1995 dated 17-2-1995 dismissing the application of the appellant for granting a
decree of divorce in respect of the marriage between the appellant and the respondent. It is unnecessary to
advert to the facts stated therein and other matters since consideration of the appeal arising out of S. L. P. No.
6443 of 1995 has become academic and unnecessary in view of the final orders passed in the main appeal. We
hold accordingly. No separate orders are necessary in the Civil Appeal arising out of S.L.P. No. 6443/95.

26. The appeal (filed from S.L.P. 20097/96) is allowed. Subject to the fulfilment of the following conditions, a
decree of divorce for dissolution of marriage by mutual consent solemnized between the appellant and the
respondent is passed under Section 13B of the Act. It is made clear that the decree is conditional and shall take
effect only on payment or deposit in this Court of the entire sum of rupees ten lakhs by the appellant to the
respondent, as ordered herein and also the cost as assessed below on or before 10-12-1997. The appellant
shall pay or remit the amounts ordered before the said date, in two instalments - a sum of Rs. 5 lakhs + Rs.
50,000/- (the assessed cost) as ordered hereinbelow , on or before 10-8-1997 and the balance of Rs. 5 lakhs
(rupees five lakhs) on or before 10-12-1997. The assessed costs required to be paid by the appellant shall be
Rs. 50,000/- towards the entire proceedings to the respondent. If default is made in the payment of the
instalment due on 10-8-1997 together with cost, then also, this decree shall not take effect and the appeal shall
stand dismissed. If the amounts ordered herein are duly deposited in this Court by the appellant, the
respondent can withdraw the said amounts, without further orders. We further declare and hold that all pending
proceedings, more particularly referred to in para 8 of this judgment, including the proceeding under Section
494, IPC read with Section 17 of Hindu Marriage Act, 1955 between the parties shall stand terminated, but only
on payment or deposited of the amounts ordered by us in this judgment. This is made clear.

27. The appeals are disposed of in the above terms

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