Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6861 OF 2018
(Arising out of S.L.P.(C) No.31332 of 2017)
Usha Uday Khiwansara ….Appellant(s)
VERSUS
Uday Kumar Jethmal Khiwansara ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Delay condoned.
2. Leave granted.
3. This appeal is filed by the appellant-wife against the final
judgment and order dated 14.08.2014 passed by the High Court of
Judicature at Bombay in Family Court Appeal No.155/2007 whereby
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2018.07.23
17:31:19 IST
Reason:
the High Court allowed the Family Court Appeal filed by the
Respondent-husband.
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4. Few facts need to be mentioned to appreciate the short issue
involved in the appeal.
5. The appellant is the wife whereas the respondent is the
husband. The appellant and the respondent married on 07.02.1992.
Unfortunately, due to various reasons, their married life was not
cordial which eventually led to filing of divorce petition (486 of 2004)
by the respondent (husband) in the year 2004 against the appellant
(wife) in Pune Family Court.
6. The respondent sought divorce inter alia on the ground of
cruelty and desertion against the appellant. The appellant denied the
allegations of cruelty/desertion and contested the petition by joining
issues.
7. By order dated 19.06.2007, the learned Family Judge dismissed
the respondent's divorce petition. He held that respondent failed to
make out any case of cruelty and desertion on the part of the appellant
so as to entitle him to claim a decree of divorce.
8. The respondent felt aggrieved, filed first appeal (155/2007)
before the High Court at Mumbai. By impugned order, the High Court
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allowed the respondent's appeal and set aside the order of the Family
Judge and in consequence allowed the respondent's divorce petition
by granting a decree of divorce in his favour on the ground of
desertion. It is against this order of the High Court; the wife (appellant
herein) felt aggrieved and filed the present special leave to appeal in
this Court.
9. We have heard the learned counsel for the parties and perused
the record of the case.
10. It is not in dispute that the High Court had allowed respondent's
(husband’s) appeal and passed the impugned order granting a decree
of divorce without hearing the appellant (wife). In other words, none
appeared for the wife before the High Court in the appeal, which was,
heard ex-parte . Such hearing of the appeal, which eventually resulted
in passing an adverse order against the wife and dissolving the
marriage undoubtedly caused prejudice to the rights of the appellant-
wife.
11. Since the appellant wife thus stood denied of a chance to
represent her case before the High Court, the logical consequence
would normally have been to set aside the judgment and order under
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appeal and remit the matter for fresh consideration. At this juncture
the learned counsel appearing for both parties submitted that they
were willing to part company on a note which would be mutually
acceptable to either party. We see force in the submission made by
both the learned counsel and rather than relegating them to fight
another round of battle, we consider the matter in that perspective.
12. It is not in dispute that the parties have been living separately
for last more than a decade. It is also clear that there is absolutely no
chance of both coming together to continue their marital life. It has
also come on record that there is no issue born out of wedlock. It has
also come on record that appellant (wife) has been ailing for long time
and living with her relatives in Wardha. It has also come on record
that the appellant (wife) has no independent income of her own and
she is wholly dependent upon her family members. It has also come
on record that the respondent (husband) is quite resourceful person
having his own or his family bungalow in a posh colony (Lakaki
Road) in Pune where he is living.
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13. In Naveen Kohli v. Neelu Kohli the husband had filed petition
seeking divorce on the ground of cruelty on part of wife. While the
matter was pending in the trial court, efforts were made for amicable
settlement, without any success. Finding that there was no cordiality
left between the parties to live together the trial court ordered
dissolution of marriage and directed the husband to deposit Rs.5 lakhs
towards permanent maintenance of the wife. The appeal at the
instance of the wife having been allowed, the husband approached this
Court by filing an appeal. The observations of this Court in
paragraphs 86 and 90 are relevant for our purposes and the same are
quoted hereunder:
“ 86. 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. 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.
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(2006) 4 SCC 558
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90. Consequently, we set aside the impugned judgment of
the High Court and direct that the marriage between the
parties should be dissolved according to the provisions of
the Hindu Marriage Act, 1955. In the extraordinary facts
and circumstances of the case, to resolve the problem in
the interest of all concerned, while dissolving the
marriage between the parties, we direct the appellant to
pay Rs 25,00,000 (Rupees twenty-five lakhs) to the
respondent towards permanent maintenance to be paid
within eight weeks. This amount would include Rs
5,00,000 (Rupees five lakhs with interest) deposited by
the appellant on the direction of the trial court. The
respondent would be at liberty to withdraw this amount
with interest. Therefore, now the appellant would pay
only Rs 20,00,000 (Rupees twenty lakhs) to the
respondent within the stipulated period. In case the
appellant fails to pay the amount as indicated above
within the stipulated period, the direction given by us
would be of no avail and the appeal shall stand
dismissed. In awarding permanent maintenance we have
taken into consideration the financial standing of the
appellant.”
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14. In Sanghamitra Ghosh v. Kajal Kumar Ghosh it was
observed in paragraphs 18, 19, 20 and 21 as under:
“18. 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
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(2007) 2 SCC 220
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what is already defunct de facto as observed in Naveen
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Kohli case .
19. 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.
20. 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.
21. 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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15. In our considered view, in order to ensure that the parties live
peacefully in future a quietus must be given to all litigations between
the parties. Such an approach would be consistent with that adopted
by this Court in the aforesaid matters. Consistent with the broad
consensus arrived at between the parties, we direct:-
“(i) On making a payment of Rs.30,00,000/- (Rupees
thirty lakhs) by the respondent-husband towards
permanent alimony to the petitioner-wife, by way of a
demaqnd draft drawn in favour of the petitioner –wife,
the marriage between the parties shall stand dissolved.
The demand draft shall be handed over to Ms. Anagaha
Desai, learned counsel for the petitioner who shall
transmit the same to the petitioner.
(ii) The respondent shall make the aforesaid payment
within one month from today.
(iii) All the allegations/findings recorded by the High
Court against both the parties including the Writ Petition
(Crl) No.631 of 2012 pending in the High Court of
Bombay, Nagpur Bench are hereby quashed.”
16. We, thus, accept the terms of settlement suggested by learned
counsel appearing for both parties. In view of the peculiar facts and
circumstances of this case, we also consider it appropriate to exercise
our power under Article 142 of the Constitution and declare
dissolution of marriage subject to the fulfillment of the aforesaid
conditions. We also deem it appropriate to direct the respondent
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husband to make a further payment of Rs.5 lakhs (Rupees five lakhs)
by way of gesture of goodwill and as his contribution towards the
medical expenses which the wife has incurred uptill now. This
amount shall be paid by way of Demand Draft along with the above-
mentioned sum of Rs.30 lakhs.
17. The appeal stands disposed of in aforesaid terms. No Costs.
…...……..................................J.
[ABHAY MANOHAR SAPRE]
………...................................J.
[UDAY UMESH LALIT]
New Delhi;
July 17, 2018
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ITEM NO.69 COURT NO.11 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s).31332/2017
(Arising out of impugned final judgment and order dated 14-08-2014
in FCA No. 155/2007 passed by the High Court of Judicature at
Bombay)
USHA UDAY KHIWANSARA Petitioner(s)
VERSUS
UDAY KUMAR JETHMAL KHIWANSARA Respondent(s)
(IA No.112495/2017-CONDONATION OF DELAY IN FILING and IA
No.112497/2017-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT
and IA No.112496/2017-CONDONATION OF DELAY IN REFILING and IA
No.117156/2017-PERMISSION TO FILE ADDITIONAL DOCUMENTS)
Date : 17-07-2018 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE ABHAY MANOHAR SAPRE
HON'BLE MR. JUSTICE UDAY UMESH LALIT
For Petitioner(s)
Ms.Anagha S. Desai, AOR
Mr.Satyajit A. Desai, Adv.
Mr.Varun Mathur, Adv.
For Respondent(s)
Mr.Meenakshi Arora, Sr.Adv.
Mr.Jay Kishor Singh, AOR
Mr.Anand Landge, Adv.
Mr.Kaushik Kulkarni, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Delay condoned.
Leave granted.
The civil appeal is disposed of in terms of the signed
reportable Judgment.
Pending applications, if any, stand disposed of.
(Ashok Raj Singh) (Chander Bala)
Court Master Court Master
(Signed reportable Judgment is placed in the file)