Full Judgment Text
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CASE NO.:
Transfer Petition (civil) 228 of 2004
PETITIONER:
Sanghamitra Ghosh
RESPONDENT:
Kajal Kumar Ghosh
DATE OF JUDGMENT: 20/11/2006
BENCH:
G.P. MATHUR & DALVEER BHANDARI
JUDGMENT:
J U D G M E N T
WITH
TP (CRL.) NOS.105 & 171 OF 2004, TP (CIVIL)
NO.727 OF 2004 AND TP (CIVIL) NO.168 OF 2006.
Dalveer Bhandari, J.
The marriage of the petitioner was solemnized on
8.11.1999 with the respondent as per Hindu rites and
customs and was duly registered with the Registrar of
Marriage. The parties have closely known each other
before marriage and the marriage was solemnized
according to the wishes of the petitioner and the
respondent.
A male child was born out of the wedlock but,
unfortunately, the parties did not have a smooth marital
life. According to the allegations of the petitioner,
Sanghamitra Ghosh, she was physically and mentally
tortured by the respondent and his parents. According to
her, the degree of torture increased day by day and
eventually on 14.1.2001 she was driven out of the
marital home along with her minor child. Thereafter, the
petitioner moved to her parents and started with them
from 15.1.2001. The respondent never cared to inquire
about the petitioner and her child and has never sent any
money either for the maintenance of the petitioner or her
child.
In these circumstances, she was forced to file a
criminal complaint on 4.8.2002 under Section 498A of
the Indian Penal Code read with Sections 3 & 4 of Dowry
Prohibition Act.
According to the version of the petitioner, she was
totally dependant on her father, who himself was very old
and was suffering from cancer and a considerable
amount had to be spent for his treatment. In these
circumstances, the petitioner became an additional
burden on her parents. In order to maintain herself and
her child, she took up a petty job in the ICICI bank on a
meagre salary. The petitioner now has been transferred
to Bangalore, as a result of which it had become
extremely difficult for her to attend the court proceedings
in West Bengal. It is very expensive and time
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consuming. In these circumstances, the petitioner had
filed a transfer petition praying that matrimonial suit
no.437 of 2002 titled as "Kajal Kumar Ghosh versus
Sanghamitra Ghosh" filed by the respondent-husband
under Section 9 of the Hindu Marriage Act, 1955 for
restitution of conjugal rights and pending in the court of
District Judge, Barasat be transferred to the court of
competent jurisdiction at Bangalore.
This Court on 26.3.2004 issued a show-cause
notice on the transfer petition. Reply to the transfer
petition was filed by the respondent. The datewise
sequence of events given by the respondent are contrary
to what had been averred by the petitioner. According to
the respondent, the petitioner was not driven out of the
matrimonial home. In fact, she had walked out of the
matrimonial home. The respondent further submitted
that their marriage broke down due to the basic
difference in their social status, educational and cultural
background, lack of tolerance and inability to adopt and
adjust to a life of a middle class family.
During the pendency of this petition, the parties
have explored the possibility of an amicable settlement.
The matter was adjourned from time to time to give the
parties adequate time to mutually and amicably settle
their differences. The parties, despite persuasion of the
Court, have not been able to sort out their differences
and decided to live separately. According to the parties,
their marriage has been irretrievably broken down and
reconciliation is out of question.
Learned counsel for the parties have prayed that in
the peculiar facts and circumstances of this case, this
Court may grant a decree of divorce by mutual consent.
On 15.9.2006, the parties have jointly filed a petition
where they have spelt out the Terms of Compromise. The
Terms of Compromise read as under:
"1. Shri Kajal Ghosh/husband agrees to pay
a sum of Rs.10 lacs (Rupees ten lacs) as
full and final settlement to his wife Smt.
Sanghamitra Ghosh. This amount shall
be paid by Shri Kajal Kumar Ghosh in
the Court by way of Demand Draft in
favour of the petitioner.
2. Both the parties further agree to let the
mother/Smt. Sanghamitra Ghosh have
the permanent custody of the minor son.
3. However, the father, Kajal Ghosh will be
entitled to have visitation rights to the
child at the residence of the petitioner at
a mutually convenient date with prior
permission.
4. Both the parties also agree to forthwith
withdraw/close all cases filed against
each other and pending before the
various courts in Kolkata and Bangalore.
These cases are:
(i) Reference Case No.210/2002
pending before the learned
SDM Court, Burrackpore,
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West Bengal.
(ii) MC No.713/2004 pending
before the Principal Family
Judge, Bangalore.
(iii) Reference Case No.M-313 of
2003 pending before the
learned 5th Judicial
Magistrate Court,
Burrackpore, West Bengal.
(iv) Matrimonial Suit
No.437/2002 pending before
the District Judge, Barasat,
West Bengal.
(v) Guardianship Case
No.66/2004 pending before
the District Judge, Barasat,
West Bengal.
5. Both the parties undertake that they
shall adhere to the terms of
compromise/settlement and that they
shall not litigate in future and have no
claim against each other whatsoever in
future."
It may be relevant to mention that on 16.10.2006,
respondent Kajal Kumar Ghosh had filed additional
affidavit in which detailed particulars of the matters
pending inter se between the parties have been
enumerated. On the same day, the parties had also filed
comprehensive terms of their compromise. The said
terms are set out as under:
"Both the parties viz. the petitioner and the
respondent have voluntarily and with their free
will, arrived at a compromise/settlement,
which has been reduced into writing and
which reads as under:
1. Shri Kajal Ghosh/husband agrees to pay
a sum of Rs.10 lacs (Rupees ten lacs) as
full and final settlement to his wife, Smt.
Sanghamitra Ghosh. This amount shall
be paid by Shri Kajal Ghosh in Court by
way of the following Demand Drafts
drawn on Allahabad Bank payable in her
favour at Bangalore:-
a) DD No.634519 dated 11.9.2006 for
Rs.2,50,000/-
b) DD No.634520 dated 11.9.2006 for
Rs.2,50,000/-.
c) DD No.634521 dated 11.9.2006 for
Rs.2,50,000/-
d) DD No.634522 dated 11.9.2006 for
Rs.2,50,000/-.
2. Both the parties further agree to let the
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mother/Sanghamitra Ghosh have the
permanent custody of the minor son.
3. However, the father/Kajal Ghosh will be
entitled to have visitation rights to the
child at the residence of his wife at a
mutually convenient date with prior
permission.
4. The following cases are pending between
the parties before the various courts.
These cases are:
i) REFERENCE CASE NO.210/2002
pending before the Learned SDM
Court, Burrackpore, West Bengal
filed by the wife/Sanghamitra under
Section 498A IPC read with Sections
3 and 4 of the Dowry Prohibition
Act.
TP (CRIMINAL) NO.171/2004 which has
been filed by the wife before this Hon’ble
Court arises out of these proceedings.
ii) MC NO.713/2004 pending before
the Principal Family Judge,
Bangalore filed by the wife under
Section 13(1)(a) and (b) of the Hindu
Marriage Act for grant of divorce.
TP (CIVIL) NO.727/2004 which has been
filed by the husband before this Hon’ble
Court arises out of these proceedings.
iii) REFERENCE CASE NO.M-313 OF
2003 pending before the Learned 5th
Judicial Magistrate Court,
Burrackpore, West Bengal filed by
wife under Section 125 CrPC for
maintenance.
TP (CRIMINAL) NO.105/2004 which has
been filed by the wife before this Hon’ble
Court arises out of these proceedings.
iv) MATRIMONIAL SUIT NO.437/2002
pending before the District Judge,
Barasat, West Bengal filed by the
husband under Section 9 of the
Hindu Marriage Act for restitution of
conjugal rights.
TP (CIVIL) NO.228/2004 which has been
filed by the husband before this Court
arises out of these proceedings.
v) GUARDIANSHIP CASE NO.66/2004
pending before the District Judge,
Barasat, West Bengal filed by the
husband under Section 25 of the
Guardians and Wards Act for
custody.
TP (CIVIL) NO.168/2006 which has been
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filed by the wife before this Court arises
out of these proceedings.
5. Both the parties humbly request this
Court in exercise of its powers to do
complete justice to the parties,
quash/close all the above pending
proceedings in view of this settlement as
the parties do not intend pursuing the
litigation any further.
6. Both the parties humbly request that all
the transfer petitions pending in this
Court (as mentioned earlier in para 4) to
be dismissed as infructuous.
7. Both the parties submit that their
marriage has broken down irretrievably
and that there is no possibility of the
parties living together. In these
circumstances, both parties would
humbly request this Court in exercise of
its powers to grant a decree of divorce by
mutual consent.
8. Both the parties undertake that they
shall adhere to the terms of
compromise/settlement and that they
shall not litigate any further and will have
no claim against each other hereafter."
Learned counsel appearing for the parties have
prayed that in the peculiar facts and circumstances and
in the interest of justice, this Court, in exercise of its
jurisdiction under Article 142 of the Constitution, may
grant a decree of divorce by mutual consent.
Learned counsel for the parties have also drawn the
attention of this Court to the decision of Harpit Singh
Anand v. State of West Bengal reported in (2004) 10
SCC 505. In this case, in almost similar circumstances,
this Court in order to put a quietus to all litigations
between the parties and not to leave any room for future
litigation and on the request of the said parties,
exercising the power vested under Article 142 of the
Constitution, dissolved the marriage and granted a
decree of divorce by mutual consent.
In the case of Kanchan Devi v. Promod Kumar
Mittan & Another reported in (1996) 8 SCC 90, where
the marriage of the parties was irretrievably broken
down, this Court exercised the power under Article 142 of
the Constitution of India and passed the following order:
"6. In view of the peculiar facts and
circumstances of the case and being satisfied
that the marriage between the appellant and
the respondent has irretrievably broken down
and that there is no possibility of
reconciliation, we in exercise of our powers
under Article 142 of the Constitution of India
hereby direct that the marriage between the
appellant and the respondent shall stand
dissolved by a decree of divorce. All pending
cases arising out of the matrimonial
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proceedings and the maintenance
proceedings under Section 125 Cr. PC
pending between the parties shall stand
disposed of and consigned to the records in
the respective courts on being moved by
either of the parties by providing a copy of
this order, which has settled all those
disputes in terms of the settlement. This
appeal is disposed of in the above terms."
In the case of Ashok Hurra v. Rupa Bipin Zaveri
etc. reported in (1997) 4 SCC 226, this Court while
dealing with a matrimonial matter quoted few excerpts
from the Seventy-first Report of the Law Commission of
India on the Hindu Marriage Act, 1955 \026 "Irretrievable
Breakdown of Marriage" \026 dated 7.4.1978. We deem it
appropriate to reproduce some excerpts from the said
report as under:
"Irretrievable breakdown of marriage is
now considered, in the laws of a number of
countries, a good ground of dissolving the
marriage by granting a decree of divorce.
*
Proof of such a breakdown would be that
the husband and wife have separated and have
been living apart for, say, a period of five or ten
years and it has become impossible to
resurrect the marriage or to reunite the
parties. It is stated that once it is known that
there are no prospects of the success of the
marriage, to drag the legal tie acts as a cruelty
to the spouse and gives rise to crime and even
abuse of religion to obtain annulment of
marriage.
*
The theoretical basis for introducing
irretrievable breakdown as a ground of divorce
is one with which, by now, lawyers and others
have become familiar. Restricting the ground
of divorce to a particular offence or
matrimonial disability, it is urged, causes
injustice in those cases where the situation is
such that although none of the parties is at
fault, or the fault is of such a nature that the
parties to the marriage do not want to divulge
it, yet there has arisen a situation in which the
marriage cannot be worked. The marriage has
all the external appearances of marriage, but
none of the reality. As is often put pithily, the
marriage is merely a shell out of which the
substance is gone. In such circumstances, it is
stated, there is hardly any utility in
maintaining the marriage as a facade, when
the emotional and other bounds which are of
the essence of marriage have disappeared.
After the marriage has ceased to exist in
substance and in reality, there is no reason for
denying divorce. The parties alone can decide
whether their mutual relationship provides the
fulfilment which they seek. Divorce should be
seen as a solution and an escape route out of a
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difficult situation. Such divorce is
unconcerned with the wrongs of the past, but
is concerned with bringing the parties and the
children to terms with the new situation and
developments by working out the most
satisfactory basis upon which they may
regulate their relationship in the changed
circumstances.
*
Moreover, the essence of marriage is a
sharing of common life, a sharing of all the
happiness that life has to offer and all the
misery that has to be faced in life, an
experience of the joy that comes from enjoying,
in common, things of the matter and of the
spirit and from showering love and affection on
one’s offspring. Living together is a symbol of
such sharing in all its aspects. Living apart is
a symbol indicating the negation of such
sharing. It is indicative of a disruption of the
essence of marriage --"breakdown"- and if it
continues for a fairly long period, it would
indicate destruction of the essence of marriage
\026 "irretrievable breakdown"."
In order to do complete justice in the matrimonial
matters, this Court has been less hesitant in exercising
its extra-ordinary jurisdiction under Article 142 of the
Constitution. To illustrate this fact, reference of some
decided matrimonial cases is given hereinbelow.
In Swati Verma v. Rajan Verma & Others
reported in (2004) 1 SCC 123, this Court came to a
definite conclusion that the marriage between the parties
has irretrievably broken down and with a view to restore
good relationship and to put quietus to all litigations
between the parties and not to leave any room for future
litigation, so that they may live peacefully hereafter, this
Court granted a decree of divorce by mutual consent
while exercising its power under Article 142 of the
Constitution.
This Court while exercising its unique power vested
under Article 142 of the Constitution in a transfer
petition in the case of Madhuri Mehta v. Meet Verma
reported in (1997) 11 SCC 81, observed as under:
"During the course of hearing of this transfer
petition, parties have jointly made an
application under Section 13-B of the Hindu
Marriage Act, 1955 before us praying for
dissolution of their marriage by mutual
consent and in the body of the application a
provision has been made for their only child.
Though the child has been conferred the right
to visit his father as and when he likes, there
is no corresponding right with the father to
visit his child. That state of affairs would be
violating the rights of the child and the father.
The husband will, thus, have a right of
visitation to see his child but after giving due
intimation to the mother. The parties have
been estranged and have kept apart since
January 1996. Earlier to the present status,
the parties had their earlier marriages broken
or disrupted. The husband lost his wife in a
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vehicular accident and the wife had divorced
her earlier husband. In this background their
differences can well be appreciated when both
of them are highly educated doctors. Keeping
that in view, we entertain this application and
grant them divorce by mutual consent in
exercise of our powers under Article 142 of the
Constitution, for which there is ample
authority reflective from past decisions of this
Court. The divorce petition pending in the
Family Court at Patna, shall stand disposed of
automatically by this order.
The transfer petition and the divorce
petitions are disposed of accordingly."
In another transfer petition in the matrimonial
matter, in Anita Sabharwal v. Anil Sabharwal
reported in (1997) 11 SCC 490, this Court was of the
view that there was no hope for the parties to live
together and passed the following order:
"A divorce petition being HMA Case
No.863 of 1994 preferred by the respondent-
husband was pending in the Court of Shri A.K.
Pathak, Additional District Judge, Delhi. The
instant transfer petition was moved by the
petitioner-wife seeking transfer of the said case
to the Family Court, Mumbai. During the
pendency of the transfer petition, parties as
well as their counsel had on 9.9.1996 put on
record a compromise deed wherein they have
agreed to get divorce by mutual consent.
Strictly speaking, the preconditions of such
claim have not been laid inasmuch as a
petition to that effect has not been filed under
Section 13-B of the Hindu Marriage Act, 1955
(the Act) before the first matrimonial court,
and that the statutory period of 6 months has
not even commenced. Be that as it may, it
stands established beyond doubt on our
summoning of the original file \026 HMA Case
No.863 of 1994 \026 that the parties were married
about 14 years ago, have spent the prime of
their life in acrimony and litigating and that it
is time that their mutuality bears some fruit in
putting them apart. Therefore, we take the
divorce petition HMA Case No.863 of 1994 on
our own file and import thereto the
compromise deed put on record by the parties
jointly. In terms therewith, a sum of Rs.7
lakhs stands paid to the wife by means of 3
separate bank drafts of Rs.2 lakhs, Rs.2 lakhs
and Rs.3 lakhs. Recurring provision has been
made therein for their children’s education and
visitation rights of the father. We have
questioned the parties and they are eager to
dissolve the matrimonial tie so that they can
rearrange their lives well in time. We,
therefore, in the spirit of Section 13-B of the
Act, and in view of the fact that all hopes to
unite them together have gone, hereby grant to
the parties divorce by a decree of dissolution
by mutual consent to end their prolonged
unhappiness. Ordered accordingly. The
transfer petition stands disposed of."
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We have heard learned counsel for the parties. This
Court adjourned the proceedings from time to time to
ensure that the parties may reconcile the differences and
live together again, but this has not happened. It is
indeed 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 as
aptly observed by this Court, in a recent decision in
Naveen Kohli v. Neelu Kohli reported in (2006) 4 SCC
558, that 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, we are fully convinced that the
marriage between the parties has irretrievably broken
down because of incompatibility of temperament. In fact
there has been total disappearance of emotional
substratum in the marriage. The matrimonial bond
between the parties is beyond repair. A marriage
between the parties is only in name. The marriage has
been wrecked beyond the hope of salvage, therefore, the
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 as observed in Naveen
Kohli’s case (supra).
In view of peculiar facts and circumstances of this
case, we consider it appropriate to exercise the
jurisdiction of this Court under Article 142 of the
Constitution.
In order to ensure that the parties may live
peacefully in future, it has become imperative that all the
cases pending between the parties are directed to be
disposed of. According to our considered view, unless all
the pending cases are disposed of and we put a quietus
to litigation between the parties, it is unlikely that they
would live happily and peacefully in future. In our view,
this will not only help the parties, but it would be
conducive in the interest of the minor son of the parties.
On consideration of the totality of the facts and
circumstances of the case, we deem it appropriate to
pass the order in the following terms:
a) The parties are directed to strictly adhere
to the Terms of Compromise filed before
this Court and also the orders and
directions passed by this Court;
b) We direct that the cases pending between
the parties, as enumerated in the
preceding paragraphs, are disposed of in
view of the settlement between the
parties; and
c) All pending cases arising out of the
matrimonial proceedings including the
case of restitution of conjugal rights and
guardianship case between the parties
shall stand disposed of and consigned to
the records in the respective courts on
being moved by either of the parties by
providing a copy of this order, which has
settled all those disputes in terms of the
settlement.
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These transfer petitions are accordingly disposed of.
In the facts and circumstances of the case, we direct the
parties to bear their own costs.