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2006 DIGILAW 1752 (ALL)

SUNIL KUMAR v. JASVINDER @ VANDANA

2006-07-21

ALOK K.SINGH, U.K.DHAON

body2006
JUDGMENT By the Court—Heard Sri A.K. Tiwari, learned Counsel for the appellant and Sri Rakesh Kumar Tripathi, learned Counsel for the respondent. 2. The brief facts of the case are that the marriage of the appellant and the respondent was solemnized on 4th March, 1990 at Punjab. Thereafter, on the basis of the strained relations between the appellant and the respondent, a suit for divorce under Section 13 of the Hindu Marriage Act was filed by the appellant. The said suit was contested by the respondent and the trial Court after considering the oral and documentary evidence on record dismissed the suit of the appellant by the judgment and decree dated 19th July, 2003. Being aggrieved by the judgment and decree dated 19th July, 2003, the appellant has preferred this appeal under Section 19 of the Family Court Act. During the pendency of the appeal on the request made on behalf of learned Counsel for the parties, the appellant and the respondent were summoned by this Court for reconciliation. On 3rd March, 2006 both the appellant and respondent were present before the Court, on which date Smt. Jasvinder stated that she is not willing to live with her husband although earlier on 19th January, 2006 she was willing to live with her husband i.e. the appellant. On 3rd March, 2006 on the basis of the statement made by the respondent before this Court, the Court came to a conclusion that reconciliation is not possible. 3. The learned Counsel for the appellant submits that inspite of best efforts of this Hon’ble Court the respondent declined to live with the appellant and as such the appellant is entitled for a decree of divorce. He further submits that the appellant and respondent are living separately for the last more than 13 years and in view of the law declared by the Hon’ble Supreme Court in the case of Naveen Kohli v. Neelu Kohli, decided on 21st March, 2006, the appeal preferred by the appellant deserves to be allowed and the appellant is entitled for a decree of divorce. The learned Counsel for the appellant further submits that the appellant is ready to pay any amount of compensation to the daughter towards love and affection which this Hon’ble Court deems fit and proper under the circumstances of the case. 4. The learned Counsel for the appellant further submits that the appellant is ready to pay any amount of compensation to the daughter towards love and affection which this Hon’ble Court deems fit and proper under the circumstances of the case. 4. The learned Counsel appearing on behalf of the respondent submits that the respondent is willing to accept the amount with a rider that the amount may be invested by this Hon’ble Court in fixed deposit which may be released in favour of the daughter after attaining the age of majority. 5. We have considered the submissions made by the learned Counsel for the parties and gone through the record. 6. Admittedly, both the parties are living separately for the last more than 13 years. Respondent is in employment with the Life Insurance Corporation at Punjab and the daughter is also living with her. On 3rd March, 2006 when both the appellant and the respondent were present before this Court for reconciliation, a statement was made by the respondent that she is not willing to live with her husband. The Hon’ble Supreme Court in the case of Naveen Kohli v. Neelu Kohli decided on 21st March, 2006 has observed as under . “Undoubtedly, it is the obligation of the Court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality. 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. 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." The Hon’ble Supreme Court has also observed in the judgment as under : “Public interest demands not only that the marriage status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact." 7. Since the parties are living separately for a considerable long time and there is irretrievable breakdown of marriage, the appellant is entitled for a decree of divorce. We, therefore award a sum of Rs. 1.00 lakh as a token of the love and affection towards the daughter. Since Smt. Jasvinder, the respondent is already in employment with the Life Insurance Corporation in Punjab and she is not willing to join her matrimonial home, we are on the view that she is not entitled for any amount from the appellant. The appeal is accordingly allowed and the judgment and decree dated 19th July, 2003 passed by the Family Court is set aside and the suit of the appellant under Section 13 of the Hindu Marriage Act is hereby decreed and the marriage is dissolved subject to the condition that the appellant shall deposit Rs. 1.00 lakh as a token of love and affection towards daughter and the daughter shall be entitled to receive the amount after attaining the age of majority. The amount of Rs. 1.00 lakh shall be deposited by the appellant before this Court within four weeks from today. The amount shall be invested by the Registrar of this Court in fixed deposit initially for a period of three years in the Post Office. Under the circumstances there shall be no order as to costs. It is also expected from the parties that they will withdraw the cases pending against each other including criminal cases with the consent of the respective Courts. Appeal Allowed. ———