Holding

The marriage is irretrievably broken; a decree of dissolution is warranted under Section 28 in favour of the husband.

Summary

The husband, Rishikesh Sharma, filed a petition for dissolution of his marriage to Saroj Sharma under Section 28 of the Hindu Marriage Act, alleging mental cruelty and desertion. The parties had been living separately since 1981, with the wife filing multiple criminal cases against the husband, and their only child, born in 1975, had already been married. The trial court and the High Court of Madhya Pradesh dismissed the petition, but the Supreme Court allowed the appeal, finding that the marriage was irretrievably broken and that there was no prospect of the parties cohabiting. The Court held that compelling the parties to live together would serve no useful purpose and that a decree of divorce was appropriate to allow them to live peacefully. Although the husband was willing to pay a lump‑sum permanent alimony, the wife refused the offer and expressed a desire to live with him, which the Court deemed insincere. Consequently, the appeal was allowed and a decree of dissolution was granted in favour of the husband.

Issues considered

Whether the marriage between the parties is irretrievably broken warranting a decree of dissolution under Section 28 of the Hindu Marriage Act.
Whether the High Court erred in refusing to exercise its jurisdiction to grant divorce despite long‑term separation and repeated litigation.

Legislation cited

Hindu Marriage Acts. 28

Subjects

Hindu marriage lawdissolution of marriagemental crueltydesertionirretrievable breakdownalimonySection 28civil appeal

Judgment

. '
RISHIKESH SHARMA A
v.
SAROJ SHARMA

NOVEMBER21, 2006

[DR. AR. LAKSHMANAN AND TARUN CHATTERJEE, JJ.] B

Hindu Law:

Hindu Marriage Act; Section 28:
c
Husband filing petition for dissolution of marriage on ground of mental
cruelty and desertion-Dismissed by trial Court-First appeal dismissed by
High Court-On appeal, Held: Both the husband and the wife living separately
and working for last 49 years-Wife repeatedly filing criminal cases against
her husband-Only child born out of the wedlock has already been given in
D
marriage-Marriage irretrievably broken down with no possibility of the
parties living together again-No useful purpose would be served by
compelling both the parties to live together as they have lost valuable part
of life in litigation-Under the circumstances, it would be appropriate to
grant decree of divorce so that they live peacefully remaining part of their
life-Decree of dissolution of marriage granted in favour of the husband E
Appellant and respondent got married according to the Hindu rites and
customs in the year 1972. After three years of marriage a daughter was born
out of the wedlock. Because of the misunderstanding between them the
respondent-wife started living separately from her husband from the year 1981
onwards and also filed several criminal proceedings against her husband. In F
the year 1989, the husband filed a petition for a decree of dissolution of
marriage on the ground of mental cruelty and the respondent having deserted
him. Trial Court dis:nissed the petition. The appeal filed by the husband under
Section 28 of the Hindu Marriage Act was dismissed by the High Court. Hence
the present appeal.
G
-.;
Allowing the appeal, the Court

HELD:l.1. In the instant case the marriage is irretrievably broken down
with no possibility of the parties living together again. Both the parties have
245 H
246 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A crossed 49 years and living separately and working. (247-D-El
1.2. There being a history of litigation with respondent-wife repeatedly
filing criminal cases against her husband, the appellant which could not be
substantiated as found by the Courts. This apart, only child born in the
wedlock in 1975 has already been given in marriage. Under such
B circumstances, the High Court was not justified in refusing to exercise its
jurisdiction in favour of the appellant. (247-E-F)

1.3. However, it will not be possible for the parties to live together and
there is no purpose in compelling both the parties to live together. Therefore
the best course, in the facts and circumstances of the case, is to dissolve the
C marriage by passing a decree of divorce so that the parties who are litigating
since 1981 and have lost valuable part of life can live peacefully in remaining
part of their life. (247-G-H; 248-A)

2. Though, the husband was ready and willing to pay lumpsum amount
D by way of permanent alimony to the wife, but the wife was not willing to accept
the same, however, she has expressed her willingness to live with her husband.
Her desire to live with her husband at this stage and at this distance of time
is not genuine. Therefore, the suggestion made by the wife is not accepted. In
the result, the appeal filed by the husband stands allowed. There will be a
decree of dissolution of marriage in favour of the husband. [248-B-CI
.E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5129 of2006.

From the Judgment and Order dated 19.4.2005 of the High Court of
Madhya Pradesh, Bench at Gwalior in F.A. No. 14of1999.

F A.K. Chitale, Niraj Shanna and Vikrant Singh Sais for the Appellant.

S.S Dahiya, K.K. Said, M.S. Bakshi, L.K. Dahiya and Debasis Mishra for
the Respondent.

The Judgment of the Court was delivered by
G
DR. AR. LAKSHMANAN, J. Leave granted.

The husband is the appellant before us. The respondent is his wife.
They got married according to the Hindu rites and customs in the year 1972.
After three years of marriage a daughter was born of the wedlock. Because
H of the misunderstanding between them the respondent started living separately
RISHIKESH SHARMA v. SAROJ SHARMA [LAKSHMANAN, J.] 247
from her husband from the year 1981_ onwards and is working in the Social A
Forestry Department. The respondent also filed several criminal proceedings
against her husband with which we are not concerned in this appeal.

In the year 1989 the appellant filed a petition for a decree of dissolution
of marriage on the ground of mental cruelty and the respondent having
deserted him without any reasonable cause. The District Judge, Gwalior, B
dismissed the petition filed by the husband for dissolution of the marriage.
The Appellant filed a first appeal in the High Court under Sec. 28 of the Hindu
Marriage Act. The High Court also dismissed the appeal of the appellant. The
appellant has therefore questioned the correctness of the order passed by the
High Court in the above appeal. C
We heard Mr. A.K. Chitale, learned senior counsel and Mr. S.S.Dahiya,
learned counsel for the respondent and perused the judgment passed by both
the trial court and also of the High court. It is not in dispute that the
respondent is living separately from the year 1981. Though the finding has
been rendered by the High Court that the wife last resided with her husband D
up to 25.3.1989, the said finding according to the learned counsel for the
appellant is not correct. In view of the several litigations between the parties
it is not possible for her to prosecute criminal case against the husband and
at the same time continue to reside with her husband. In the instant case the
marriage is irretrievably broken down with no possibility of the parties living
together again. Both the parties have crossed 49 years and living separately E
and working independently since 1981. There being a history oflitigation with
respondent-wife repeatedly filing criminal cases against the appellant which
could not be substantiated as found by the Courts. This apart, only child
born in the wedlock in 1975 has already been given in marriage. Under such
circumstances the High Court was not justified in refusing to exercise its p
jurisdiction in favour of the appellant. This apart, the wife also has made
certain allegations against her husband, that the husband has already remarried
and is living with another lady as stated by her in the written statement. The
High Court also has not considered the allegations made by the respondent
which have been repeatedly made and repeatedly found baseless by the
courts. G

In our opinion it will not be possible for the parties to live together and
therefore there is no purpose in compelling both the parties to live together.
Therefore the best course in our opinion is to dissolve the marriage by
passing a decree of divorce so that the parties who are litigating since 1981 H
248 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A and have lost valuable part of life can live peacefully in remaining part of their
life.

During the last hearing both the husband and wife were present in
Court. Husband was ready and willing to pay lumpsum by way of permanent
alimony to the wife. The wife was not willing to accept the lumpsum but
B however expressed her willingness to live with her husband. We are of the
opinion that her desire to live with her husband at this stage and at this
distance of time is not genuine. Therefore, we are not accepting this suggestion
made by the wife and reject the same.

C In the result, the appeal filed by the husband stands allowed. There will
be a decree of dissolution of marriage in favour of the husband.

No costs.

S.K.S. Appeal allowed.