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2023 DIGILAW 1309 (SC)

Shakti v. Anita

2023-11-02

PRASHANT KUMAR MISHRA, SANJAY KISHAN KAUL, SUDHANSHU DHULIA

body2023
ORDER : 1. The marriage was solemnized according to Hindu rites between the parties on 09.11.2008. 2. One girl child Mannat was born on 07.09.2010 and a son named, Kushagra was born on 20.02.2013. It appears that soon thereafter, the relationship between the parties soured and in the year 2013 itself a divorce petition was filed by the appellant at the Family Court, Jhajhar. In terms of the judgment dated 25.10.2016, the decree of divorce was granted under Section 13 of the Hindu Marriage Act, 1955 on grounds of cruelty. 3. The respondent, aggrieved by the same, preferred an appeal before the High Court of Punjab & Haryana. The appeal has been allowed by the judgment dated 16.11.2019 of the Division Bench. 4. We may note an aspect relevant which also forms, in same way, the basis of the judgment by the Division Bench. That is, that the appellant husband has a qualification of BA and works as a Head Constable. On the other hand, the respondent’s qualification is of BCA, MCA, MTech, M. Phil and she has got enrolled for Phd. This is the reason that the High Court opined that apparently the appellant is of a parochial mind set and the travel of the respondent wife along with colleagues is cited as a mental cruelty ground. It has also taken note of the fact that at the time of marriage it was known that the respondent-wife was a Lecturer in a college. 5. We have heard learned counsel for parties. 6. We have noticed the factum of the parties living separately for a decade. The matter was referred to the Supreme Court Mediation Center. However, no final settlement worked out. We called upon the parties to file the affidavits of income and assets. 7. On 01.05.2023, we noticed that this is clearly a case of irretrievable breakdown of marriage and will be covered by the view expressed by this Court in Shilpa Sailesh v. Varun Sreenivasan – 2023 (6) SCALE 402 that the continuation of marriage itself becomes meaningless. In fact, there is consensus ad idem that the appropriate course would be to give a mutual consent divorce on grounds of irretrievable breakdown. 8. We may notice that insofar as the children are concerned, the daughter is staying with the appellant while the son is staying with the respondent. In fact, there is consensus ad idem that the appropriate course would be to give a mutual consent divorce on grounds of irretrievable breakdown. 8. We may notice that insofar as the children are concerned, the daughter is staying with the appellant while the son is staying with the respondent. The daughter is about 13 years old now and the son is 10 years old. We did try to work out an arrangement where at least the children meet, even if their parents appear to be at loggerheads. The children were directed to be produced before the Supreme Court Mediation Centre on 15.05.2023. The Mediator was called upon to take the assistance of a Counsellor. The mediation report and the report of the Counsellor are before us. In terms of the report of the Cousellor, we notice that the marriage was actually unstable right from the beginning and the respondent-wife had been living between marital home and her parent’s house even during the period 2009 to 2013. The son was an infant and was taken by the wife at that time. The daughter is in the VIII standard in Kendriya Vidyalaya while the son was studying in the VI standard and has just been shfited from the Government school to a residential school near Rohtak. It was found that the children were familiar to each other and were interacting on equal footing though they wanted to live with their respective parents. Children were found to be mature enough, possibly arising from the rift of the parents and even agreed to meet on different occasions. 9. We may also note that the respondent states that at present she is not working since 2017. We find this difficult to accept, seeing her qualifications and it cannot be a stand of the respondent that despite her qualifications being quite high, she would sit at home so that the appellant has to pay a permanent alimony! 10. We have given our thought to the matter and in the conspectus of all facts, there is no dispute that the parties are ad idem that a decree of divorce ought to be passed in view of the long separation of 10 years between the parties on account of mutual consent and/or irretrievable breakdown of marriage. 10. We have given our thought to the matter and in the conspectus of all facts, there is no dispute that the parties are ad idem that a decree of divorce ought to be passed in view of the long separation of 10 years between the parties on account of mutual consent and/or irretrievable breakdown of marriage. We too believe this is fit case for grant of decree of divorce on mutual consent and/or irretrievable breakdown of marriage exercising our jurisdiction under Article 142 of the Constitution of India, in view of the long separation as also even the Counsellor’s report received which shows that the marriage was troublesome from the inception. One reason could be the difference in qualifications and the approach of the two parties accordingly. We thus, grant a decree of divorce dissolving the marriage inter se the parties. 11. Insofar as the custody of children is concerned, both the children have expressed their wishes to remain with their respective parents and thus, the son would continue to be with the respondent-mother while the daughter would continue to be with the appellant-father and there needs would be looked after by the respective parties. 12. We are, however, of the view that the interaction among the children should continue, more so, in the conspectus of the report of the Counsellor who did not find any problem in the interaction of the two children. We thus, require the parties to report to the Mediation Centre for the said purpose and the Counsellor would work out the arrangements for interaction inter se the children. The arrangement which may be arrived at by the Mediator in consultation with the child Counsellor will be binding on the parties insofar as the interactions among the siblings is concerned. This would naturally be till they attain the age of majority. 13. That brings us to the aspect of permanent alimony over which the real dispute is. We looked to the offer of the appellant as also the desire of the respondent. There is undoubtedly a miss match! 14. As often happens the claim of the respondent is based on what is stated to be a large number of properties of the family of the appellant, though nothing is placed on record of anything in his name. We looked to the offer of the appellant as also the desire of the respondent. There is undoubtedly a miss match! 14. As often happens the claim of the respondent is based on what is stated to be a large number of properties of the family of the appellant, though nothing is placed on record of anything in his name. Insofar as rights of Kushagra (son) in any ancestral property is concerned, naturally, he would have the rights in accordance with the Hindu law for any share in the property. Thus, that is a right which cannot be resolved in the present proceedings, more so, when he is a minor. 15. We do believe that the stand of the respondent cannot be accepted that she is jobless even though she is well qualified. However, looking to all the facts and circumstances of the case, we consider appropriate to fix a permanent alimony for the respondent. We fix the amount as Rs.10 lakh to be paid by the appellant to the respondent within a maximum period of two months from today. 16. Apart from this, the appellant will be required to make arrangements for the son by taking out an FDR for a period of five years which on maturity would be to the benefit of the son Kushagra in the amount of Rs.5 lakhs. 17. The details of pending proceedings is as under: “a) Appeal under Section 12,18,19,20,21,22 of the Domestic Violence Act titled as Anita Devi v. Shakti Singh bearing No.CRA-99-2022(CNR No.HRJR01-010798-2022) pending before Sh.Ajay Tewatia, Ld. Sessions Judge, Jhajjar, Haryana; b) Application under Section 125 Cr.P.C. titled as Anita etc. v. Shakti Singh bearing No.CRA128-2019(CNR No.HRJR01-005173-2019) pending before Sh. Ajay Tewatia, Ld. Sessions Judge, Jhajjar, Haryana. 18. The said proceedings shall stand quashed/closed. 19. We close the present proceedings in the aforesaid terms. The decree of divorce will be released to the appellant only on compliance of the aforesaid dual conditions of payment to the respondent and taking out an FDR in the name of the son and handing over the FDR to the respondent. 20. The appeal stands disposed of.