USHA UDAY KHIWANSARA versus UDAY KUMAR JETHAMAL KHIWANSARA on 17 July 2018

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SUPREME COURT REPORTS

[2018] 7 S.C.R.

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USHA UDAY KHIWANSARA

v.

UDAY KUMAR JETHAMAL KHIWANSARA

(Civil Appeal No. 6861 of 2018)

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JULY 17, 2018

[ABHAY MANOHAR SAPRE ANDUDAY UMESH LALIT, JJ.]

Matrimonial laws: Dissolution of marriage – In exercise ofCpower u/Art.142 of the Constitution – On facts, grant of ex partedivorce decree in favour of husband by the High Court – Challengeto, by the wife – On appeal, held: Parties have been living separatelyfor last more than a decade and there is no chance of both comingtogether to continue their marital life, and no issue was born out ofwedlock – Furthermore, wife has been ailing for long time and livingDwith her relatives, and has no independent income of her own,whereas her husband is quite resourceful person – In order to ensurethat the parties may live peacefully in future, a quietus must begiven to all litigations between the parties – In view of the consensusarrived at between the parties, issuance of direction to the husbandEto pay the wife Rupees thirty lakhs towards permanent alimony andRupees five lakhs towards medical expenses – Thus, in exercise ofpower u/Art. 142, marriage is dissolved subject to the fulfillment ofthe said conditions – Hindu Marriage Act, 1955 – Constitution ofIndia – Art. 142.

FNaveen Kohli v. Neelu Kohli (2006) 4 SCC 558 :[2006] 3 SCR 53 ; Sanghamitra Ghosh v. Kajal KumarGhosh (2007) 2 SCC 220 : [2006] 9 Suppl. SCR 156 –referred to.

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Case Law Reference

[2006] 3 SCR 53 referred toPara 13[2006] 9 Suppl. SCR 156 referred toPara 14

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USHA UDAY KHIWANSARA v. UDAY KUMARJETHAMAL KHIWANSARA

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6861of 2018.

From the Judgment and Order dated 14.08.2014 of the High Courtof Judicature at Bombay in Family Court Appeal No. 155 of 2007.

Ms. Anagha S. Desai, Satyajit A. Desai, Varun Mathur, Advs. forthe Appellant.

Ms. Meenakshi Arora, Sr. Adv., Jay Kishor Singh, Anand Landge,Kaushik Kulkarni, Advs. for the Respondent.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Delay condoned.

2. Leave granted.

3. This appeal is filed by the appellant-wife against the finaljudgment and order dated 14.08.2014 passed by the High Court ofJudicature at Bombay in Family Court Appeal No.155/2007 wherebythe High Court allowed the Family Court Appeal filed by the Respondent-husband.

4. Few facts need to be mentioned to appreciate the short issueinvolved in the appeal.

5. The appellant is the wife whereas the respondent is the husband.The appellant and the respondent married on 07.02.1992. Unfortunately,due to various reasons, their married life was not cordial which eventuallyled to filing of divorce petition (486 of 2004) by the respondent (husband)in the year 2004 against the appellant (wife) in Pune Family Court.

6. The respondent sought divorce inter alia on the ground ofcruelty and desertion against the appellant. The appellant denied theallegations of cruelty/desertion and contested the petition by joining issues.

7. By order dated 19.06.2007, the learned Family Judge dismissedthe respondent’s divorce petition. He held that respondent failed to makeout any case of cruelty and desertion on the part of the appellant so as toentitle him to claim a decree of divorce.

8. The respondent felt aggrieved, filed first appeal (155/2007)before the High Court at Mumbai. By impugned order, the High Court A

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Aallowed the respondent’s appeal and set aside the order of the FamilyJudge and in consequence allowed the respondent’s divorce petition bygranting a decree of divorce in his favour on the ground of desertion. Itis against this order of the High Court; the wife (appellant herein) feltaggrieved and filed the present special leave to appeal in this Court.

B9. We have heard the learned counsel for the parties and perusedthe record of the case.

10. It is not in dispute that the High Court had allowed respondent’s(husband’s) appeal and passed the impugned order granting a decree ofdivorce without hearing the appellant (wife). In other words, noneCappeared for the wife before the High Court in the appeal, which was,heard ex-parte. Such hearing of the appeal, which eventually resulted inpassing an adverse order against the wife and dissolving the marriageundoubtedly caused prejudice to the rights of the appellant-wife.

11. Since the appellant wife thus stood denied of a chance toDrepresent her case before the High Court, the logical consequence wouldnormally have been to set aside the judgment and order under appealand remit the matter for fresh consideration. At this juncture the learnedcounsel appearing for both parties submitted that they were willing topart company on a note which would be mutually acceptable to eitherparty. We see force in the submission made by both the learned counselEand rather than relegating them to fight another round of battle, weconsider the matter in that perspective.

12. It is not in dispute that the parties have been living separatelyfor last more than a decade. It is also clear that there is absolutely nochance of both coming together to continue their marital life. It has alsoFcome on record that there is no issue born out of wedlock. It has alsocome on record that appellant (wife) has been ailing for long time andliving with her relatives in Wardha. It has also come on record that theappellant (wife) has no independent income of her own and she is whollydependent upon her family members. It has also come on record thatGthe respondent (husband) is quite resourceful person having his own orhis family bungalow in a posh colony (Lakaki Road) in Pune where he isliving.

13. In Naveen Kohli v. Neelu Kohli[1] the husband had filed petitionseeking divorce on the ground of cruelty on part of wife. While the matter was pending in the trial court, efforts were made for amicablesettlement, without any success. Finding that there was no cordialityleft between the parties to live together the trial court ordered dissolutionof marriage and directed the husband to deposit Rs.5 lakhs towardspermanent maintenance of the wife. The appeal at the instance of thewife having been allowed, the husband approached this Court by filingan appeal. The observations of this Court in paragraphs 86 and 90 arerelevant for our purposes and the same are quoted hereunder:

“86. In view of the fact that the parties have been living separatelyfor more than 10 years and a very large number of aforementionedcriminal and civil proceedings have been initiated by the respondentagainst the appellant and some proceedings have been initiatedby the appellant against the respondent, the matrimonial bondbetween the parties is beyond repair. A marriage between theparties is only in name. The marriage has been wrecked beyondthe hope of salvage, public interest and interest of all concernedlies in the recognition of the fact and to declare defunct de jurewhat is already defunct de facto. To keep the sham is obviouslyconducive to immorality and potentially more prejudicial to thepublic interest than a dissolution of the marriage bond.

90. Consequently, we set aside the impugned judgment of theHigh Court and direct that the marriage between the parties shouldbe dissolved according to the provisions of the Hindu MarriageAct, 1955. In the extraordinary facts and circumstances of thecase, to resolve the problem in the interest of all concerned, whiledissolving the marriage between the parties, we direct the appellantto pay Rs 25,00,000 (Rupees twenty-five lakhs) to the respondenttowards permanent maintenance to be paid within eight weeks.This amount would include Rs 5,00,000 (Rupees five lakhs withinterest) deposited by the appellant on the direction of the trialcourt. The respondent would be at liberty to withdraw this amountwith interest. Therefore, now the appellant would pay only Rs20,00,000 (Rupees twenty lakhs) to the respondent within thestipulated period. In case the appellant fails to pay the amount asindicated above within the stipulated period, the direction given byus would be of no avail and the appeal shall stand dismissed. Inawarding permanent maintenance we have taken into considerationthe financial standing of the appellant.”

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A14. In Sanghamitra Ghosh v. Kajal Kumar Ghosh[2] it wasobserved in paragraphs 18, 19, 20 and 21 as under:

“18. In the instant case, we are fully convinced that the marriagebetween the parties has irretrievably broken down because ofincompatibility of temperament. In fact there has been totalBdisappearance of emotional substratum in the marriage. Thematrimonial bond between the parties is beyond repair. A marriagebetween the parties is only in name. The marriage has beenwrecked beyond the hope of salvage, therefore, the public interestand interest of all concerned lies in the recognition of the fact andto declare defunct de jure what is already defunct de facto asCobserved in Naveen Kohli case[7].

19. In view of peculiar facts and circumstances of this case, weconsider it appropriate to exercise the jurisdiction of this Courtunder Article 142 of the Constitution.

D20. In order to ensure that the parties may live peacefully in future,it has become imperative that all the cases pending between theparties are directed to be disposed of. According to our consideredview, unless all the pending cases are disposed of and we put aquietus to litigation between the parties, it is unlikely that theywould live happily and peacefully in future. In our view, this willEnot only help the parties, but it would be conducive in the interestof the minor son of the parties.

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21. On consideration of the totality of the facts and circumstancesof the case, we deem it appropriate to pass the order in the followingterms:

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(a) the parties are directed to strictly adhere to the terms ofcompromise filed before this Court and also the orders anddirections passed by this Court; (b) we direct that the cases pending between the parties, asenumerated in the preceding paragraphs, are disposed of in viewGof the settlement between the parties; and

(c) all pending cases arising out of the matrimonial proceedingsincluding the case of restitution of conjugal rights and guardianshipcase between the parties shall stand disposed of and consigned to H2(2007) 2 SCC 220

the records in the respective courts on being moved by either ofthe parties by providing a copy of this order, which has settled allthose disputes in terms of the settlement.”

15. In our considered view, in order to ensure that the parties livepeacefully in future a quietus must be given to all litigations between theparties. Such an approach would be consistent with that adopted by thisCourt in the aforesaid matters. Consistent with the broad consensusarrived at between the parties, we direct:-

“(i) On making a payment of Rs.30,00,000/- (Rupees thirty lakhs)by the respondent-husband towards permanent alimony to thepetitioner-wife, by way of a demand draft drawn in favour of thepetitioner –wife, the marriage between the parties shall standdissolved. The demand draft shall be handed over to Ms. AnagahaDesai, learned counsel for the petitioner who shall transmit thesame to the petitioner.

(ii) The respondent shall make the aforesaid payment within onemonth from today.

(iii) All the allegations/findings recorded by the High Court againstboth the parties including the Writ Petition (Crl) No.631 of 2012pending in the High Court of Bombay, Nagpur Bench are herebyquashed.”

16. We, thus, accept the terms of settlement suggested by learnedcounsel appearing for both parties. In view of the peculiar facts andcircumstances of this case, we also consider it appropriate to exerciseour power under Article 142 of the Constitution and declare dissolutionof marriage subject to the fulfillment of the aforesaid conditions.We also deem it appropriate to direct the respondent husband to make afurther payment of Rs.5 lakhs (Rupees five lakhs) by way of gesture ofgoodwill and as his contribution towards the medical expenses whichthe wife has incurred uptill now. This amount shall be paid by way ofDemand Draft along with the above-mentioned sum of Rs.30 lakhs.

17. The appeal stands disposed of in aforesaid terms. No Costs.

Nidhi Jain

Appeal disposed of.

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