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VISHNU DUTT SHARMA Vs. MANJU SHARMA

VISHNU DUTT SHARMA Vs. MANJU SHARMA

 

Hindu Marriage Act, 1955: s.13(1)(i-a) - Petition for divorce by husband alleging cruelty by wife - Dismissal by trial court as also by High Court - Plea that divorce be granted on the ground of irretrievable breakdown of marriage -

                                            REPORTABLE
                    IN THE SUPREME COURT OF INDIA

                    CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NO. 1330 OF 2009
    (Arising out of SLP(C) No.13166 of 2007)


Vishnu Dutt Sharma                                          ..Appellant

                    versus

Manju Sharma                                                ..Respondent


                               ORDER


          Leave granted.


          This Appeal has been filed against the judgment and order dated 07th

May, 2007 passed by the High Court of Delhi in FAO No.302 of 1996 whereby the

High Court has dismissed the appeal filed by the husband-appellant.


          Facts giving rise to this appeal are:


          The marriage took place between the appellant and the respondent on

26.02.1993 and a female child was born on 6.12.1993. In the petition filed by the

appellant, it was alleged that soon after the marriage the respondent was behaving

in a cruel manner derogatory to the appellant and the family members; that the

respondent avoided staying in the matrimonial home and never remained there for

more than 25 days together; and that after leaving the matrimonial

                               -2-
home on 19.5.1993 while she was pregnant with the child, the respondent never

returned to live with the appellant.      It was also alleged that the father of the

respondent is a retired Sub-Inspector of the Delhi Police and brother is a Constable

and both used to extend threats to the appellant and his family members that they

would be implicated in false cases.

 

             Respondent in her written statement stated that on 14.09.1994, the

appellant and his family members gave her a severe beating which led to her being

medically examined by the doctors at Ram Manohar Lohia Hospital. A copy of the

extract of the MLC register on that date was enclosed to the written statement. It

was also stated that the appellant and his mother had taken the jewellery of the

respondent and given it to the wife of the appellant's brother and on asking,

respondent was again assaulted and sought to be burnt alive by the family members

of the appellant.

 

             The trial Court after examining the evidence came to the conclusion that

no case of cruelty had been made out as alleged by the appellant. The Trial Court

held that considering that the respondent had been turned out of the matrimonial

house and had been given beatings for which she

                                           -3-

was medically examined,it was the respondent who was treated cruelly by the

appellant.

             Being aggrieved, the appellant preferred an appeal in the High Court.
          The High Court, by the impugned order, while dismissing the appeal filed

by the appellant-husband, observed in paras 13 & 17 as under:


             "13. ...The respondent has categorically stated in her
             examination-in-chief that the appellant and her in laws beat
             her mercilessly on 14.09.1994 as a result of which she was
             medically examined at the Ram Manohar Lohia Hospital, New
             Delhi on 15.09.1994. She has also withstood the cross-
             examination on this aspect. On a reading of the entire
             evidence, it is not possible to conclude that the appellant has
             been able to establish that the respondent treated him with
             cruelty.

             17.        In the instant case, the respondent wife has both
             before the trial Court and this Court been able to demonstrate
             that far from treating the appellant with cruelty, she in fact
             suffered cruelty at the hands of the appellant. To grant
             divorce to the appellant despite this only on the ground of
             irretrievable breakdown would not, in the view of this Court,
             be doing justice to the respondent."


          We are not inclined to interfere with the finding of fact of both the courts

below that it was the appellant who treated the respondent with cruelty, rather than

the other way around.

                                         -4-

          Learned counsel appearing for the appellant has streneously argued that

the marriage between the parties be dissolved on the ground of irretrievable

breakdown.

          In this connection it may be noted that in Section 13 of the Hindu

Marriage Act, 1955 (for short 'the Act') there are several grounds for granting

divorce e.g. cruelty, adultery, desertion etc. but no such ground of irretrievable

breakdown of the marriage has been mentioned for granting divorce. Section 13 of
the Act reads as under:


             "13.Divorce--(1) Any marriage solemnized, whether before or
             after the commencement of this Act, may, on a petition
             presented by either the husband or the wife, be dissolved by a
             decree of divorce on the ground that the other party--

             (i) has, after the solemnization of the marriage, had voluntary
                 sexual intercourse with any person other than his or her
                 spouse; or
             (i-a) has, after the solemnization of the marriage, treated the
             petitioner with cruelty; or

             (i-b) has deserted the petitioner for a continuous period of not
             less than two years immediately preceding the presentation of
             the petition; or

             (ii)has ceased to be a Hindu by conversion to another religion;
                 or
             (iii) has been incurably of unsound mind, or has been suffering
                 continuously or intermittently from mental disorder of such
                 a kind and to such an extent that the petitioner cannot
                 reasonably be expected to live with the respondent.
                                   -5-

                          xx                xx                   xx

                          xx                xx                   xx

             (iv)has been suffering from a virulent and incurable form of
                leprosy; or
             (v)has been suffering from venereal disease in a communicable
                form; or
             (vi)has renounced the world by entering any religious order; or
             (vii)has not been heard of as being alive for a period of seven
                years or more by those persons who would naturally have
                heard of it, had that party been alive."

 

          On a bare reading of Section 13 of the Act, reproduced above, it is crystal

clear that no such ground of irretrievable breakdown of the marriage is provided by

the legislature for granting a decree of divorce. This Court cannot add such a
ground to Section 13 of the Act as that would be amending the Act, which is a

function of the legislature.

           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, and 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

                                          -6-

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        and not by the Court. It is for the

Parliament to enact or amend the law and not for the Courts. Hence, we do not find

force in the submission of the learned counsel for the appellant.

           Had both parties been willing we could, of course, have granted a divorce

by mutual consent as contemplated by Section 13B of the Act, but in this case the

respondent is not willing to agree to a divorce.

           For the aforesaid reasons, this appeal is dismissed. No order as to costs.

 


                                          .........................J.
                                          [MARKANDEY KATJU]

 

                                          .........................J.
                                          [V.S.SIRPURKAR]
NEW DELHI;
FEBRUARY 27, 2009.

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VISHNU DUTT SHARMA Vs. MANJU SHARMA. Hindu Marriage Act, 1955: s.13(1)(i-a) - Petition for divorce by husband alleging cruelty by wife - Dismissal by trial court as also by High Court - Plea that divorce begranted on the ground of irretrievable breakdown