Research › Browse › Judgment

Supreme Court of India · body

2022 DIGILAW 638 (SC)

M. Venkateshwaherlu v. M. Pushpalatha

2022-04-20

M.M.SUNDRESH, SANJAY KISHAN KAUL

body2022
ORDER : 1. The marriage inter se the parties was solemnized according to Hindu rites on 22.11.1985 from which a female child (Swetha Salini) was born in December, 1986. The appellant was in service of the Andhra Pradesh Police Department since 01.04.1984 and earned promotions thereafter and had since demitted office. 2. The appellant filed a petition for grant of divorce under Section 13(1) (ia) and (ib) of the Hindu Marriage Act, 1955, predicated on a plea that the respondent was suffering from some mental illness and was thus taken to her parental house, but subsequently failed to join him. The proceedings were initiated vide OP No. 236/1986 for annulment of marriage on the ground of desertion which was however subsequently withdrawn paving the way for their re-union on 27.09.1987. 3. It appears that the relationship between the parties did not normalize and the respondent lodged a complaint for dowry harassment under Section 498A, IPC, both against the appellant and his family members but the same was however closed. 4. The appellant again filed OP No. 209/1988 for divorce and the same was dismissed on contest. The appellant filed an appeal and once again the same was withdrawn in an endeavour to live together. 5. The third round began with filing of OP No. 407/1998 seeking restoration of conjugal rights but did not result in the respondent joining the company of the appellant and thereafter OP No. 413/1999 was filed, re-numbered as OP No. 636/2000, which is the subject matter of the present proceedings. 6. The record shows that respondent had made a complaint on 28.01.1992 to the Prime Minister’s Office and the DGP, Andra Pradesh complaining that the appellant has contracted two more marriages on which a preliminary enquiry was conducted and departmental proceedings were initiated. The appellant filed OS No. 190/1995 for declaring the matrimonial status of the appellant to having married only the respondent and not one Nirmala and Lalitha @ Srilatha and for injunction to restrain Inspector General of Police from proceeding with the departmental enquiry against the appellant and suit was remitted for fresh consideration by the High Court in appeal. 7. The Family Court, however, exercised jurisdiction in the OP filed for divorce on the ground that the marriage between the parties is irretrievably broken down and that the appellant was directed to pay Rs. 1,25,000/-for maintenance of the respondent and Rs. 7. The Family Court, however, exercised jurisdiction in the OP filed for divorce on the ground that the marriage between the parties is irretrievably broken down and that the appellant was directed to pay Rs. 1,25,000/-for maintenance of the respondent and Rs. 1,75,000/-towards maintenance and marriage expenses of their daughter who was living with the respondent. 8. On the appeal being preferred by the respondent before the High Court, the order of the Family Court was set aside, and rightly so, as the ground of irretrievable break down of marriage could not have been availed of as to grant a decree of divorce. This power is only exercisable by this Court in exercise of its extraordinary jurisdiction under Article 142 of the Constitution of India. The present appeal emanates from the said order. This appeal is also pending before this Court for the last 12 years (@ SLP of the year 2010). The appellant is stated to have got married after the decree of divorce was granted by the trial Court. Much water has flowed in more than two decades when for one reason or the other, the reconciliation between the parties has not been possible and is now practically impossible, given the present status of the parties. 9. When we took up the appeal for hearing on 25.11.2021 it was agreed that in view of the marriage already performed by the appellant, the second time and the children therefrom, and the child from the marriage between the parties hereto having already married of with the cooperation of the parties, it would be appropriate for this Court to exercise jurisdiction under Article 142 of the Constitution of India to grant divorce on the ground of irretrievable break down of marriage, something the trial Court did but could not have done and that being the reason for the High Court to interfere. However, we flagged the issue of the appellant being required to make arrangements to take care of the respondent. We had noticed that the monies had been paid earlier also which could not be said to be inconsequential considering the time when they were so paid and we had put to learned counsel for the appellant as to what further amount he is willing to pay for the permanent maintenance of the respondent. We had noticed that the monies had been paid earlier also which could not be said to be inconsequential considering the time when they were so paid and we had put to learned counsel for the appellant as to what further amount he is willing to pay for the permanent maintenance of the respondent. The appellant was called upon to file an affidavit setting forth the assets both movable and immovable and the pension he was deriving from the Government as he was in police service. 10. The affidavit was filed. In terms of the affidavit Flat No. 105 (Apartment), had been handed over to Smt. Swetha Salini, the daughter from the first marriage. In view thereof, we had put to the respondent if there are any further documents required to be executed, we can call upon the appellant to execute the same, as largely there are very little assets other than the aforesaid available with the appellant apart from the pension being received by him with the obligation to maintain the second marriage and the progenies. Thereafter, the proceedings had been adjourned at the request of the respondent from time to time. 11. In view of the aforesaid facts and circumstances and the passage of more than 2 decades of separation of the parties and also the second marriage of the appellant stated to be in the hiatus period between the grant of decree of divorce and the said decree being set aside, we feel this is a clear case of irretrievable break down of marriage requiring this Court to exercise its jurisdiction under Article 142 of the Constitution of India, subject to certain caveats. 12. In order to secure the interest of the daughter to whom the flat is stated to have been handed over and the rents are being realized by the daughter, the daughter is taken care of but to avoid any future complications in this behalf, learned counsel for the appellant on instructions has stated that the appellant will execute a gift deed in favour of his daughter Smt. Swetha Salini in respect of flat No. 105 (Apartment), Varun Estates, Kapra, Keesar Mandal, Ranga Reddy District, Telangana State. Thus, the gift deed be duly executed and registered. 13. We have then put to learned counsel for the appellant as to what arrangements he proposes to make for the permanent maintenance of his wife. Thus, the gift deed be duly executed and registered. 13. We have then put to learned counsel for the appellant as to what arrangements he proposes to make for the permanent maintenance of his wife. In this behalf, learned counsel for the respondent has drawn our attention to the documents filed by the appellant, including from the office of the Accountant General which show that the computed value of pension was 17,93,872/- but after computation, the monthly pension admissible is stated to be of Rs. 26,787/-. In the affidavit filed by the appellant, he states as on date he is getting a pension of Rs.45,000/-per month from which he maintains the current family. We thus propose to the appellant that he must give a lumpsum amount to the wife who is now aged about 60 years and staying at her maternal home. 14. On hearing learned counsel for the parties, we determine the amount for permanent maintenance as Rs. 7 lakh which should be paid to the respondent within four weeks by way of a bank draft. A decree of divorce is thus passed inter se the two parties on the ground of irretrievable break down by exercising our jurisdiction under Article 142 of the Constitution of India. 15. A decree of divorce to be drawn up accordingly. 16. In order to ensure due compliance, the decree of divorce will be released to the appellant only on compliance of the aforesaid conditions. 17. The appellant would file a copy of the registered gift deed along with a copy of the bank draft in favour of the respondent for Rs. 7 Lakh with acknowledgment of the respondent of having received the same and on complying with the same, the decree of divorce be released to the appellant. 18. Needless to say, that the daughter-Swetha Salini would have to cooperate for execution of the gift deed in her favour before the Office of the Sub-Registrar. 19. The appeal stands disposed of in the aforesaid terms.