Sanjeeta Das v. Tapan Kumar Mohanty

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8196-8197 of 2010. From the Judgment & Order dated 02.09.2009 and in MAT A No. 59 of 2005 and dated 20.11.2009 in Misc. Case No. 97 of 2009 in MATA No. 59 of 2005 of the High Court of Orissa at Cuttack. Manoj Kumat Das (for Sibo Sankar Mishra) for the appellant. D.D. Singh, S.C. Paul (for Satyendra Kumar) for the Respondent. The Judgment of the Court was delivered by __ 0 AFTAB ALAM, J.

1Leave granted.

2The order of a division bench of the Orissa High Court that is before us in this appeal, though passed in a judicial proceeding, appears to us to be completely alien to the law. The relevant facts to see the impugned order in perspective may be stated thus.

3The respondent and the appellant were married in accordance with the Hindu religious rites. About t.hree years SUPREME COURT 1R5PGRTS f2;010] 11 S.C.R. A after the marriage, he filed a 1petiti0n (Givil Proceeding No.136 of 1997) before the Family Gow rt, Rour.kela for dissolution of his marriage with the appellant on grounds ·Of ·cruelty and desertion [clauses (ia) and (ib) of section 13(1) of the Hindu Marriage· Act, 1955].

The appellant strongly resisted the grounds s taken by the respondent for dissolution of their marriage and took the plea that in reality she had been deserted and subjected to cruelty by the respondent For the putp'ose 'Of the present appeal, there rs no treed for YS to go into the details of the allegations made by the respondent in his petition ot the c counter-allegations made :against him in the written statement filed ;ty the appeltant Suffice it to note that on the basis of the evidences adduced before it, the Family Court in its judgment dated October 29, 2005 arrived at findings against the respondent on both the issues of desertion and cruelty. Invoking, however, the provision of section 23A ()f the Act, it D directed the appellant to resume cohabitation with her husband, the respondent, within 3 months from the date of the judgment. The operative order of the Family Court is as follows:

"In the ultimate analysis, while rejeGtlng the prayer of the petitioner seeking for grant of dissolution of his marriage with the respondent by a decree of divorce, I pass a decree of restitution of the conjugal life of the parties. Accordingly, the respondent-wife is directed to restitute her conjugal life with the petitioner-husband within 3 months, hence on the event of the respondent coming to the fold of the petitioner to restitute her conjugal life with the latter, he shall co-operate with the former and that consequent upon success of the restitution of conjugal life between the parties, the impact/gravity of the criminal proceeding u/s. 498A IPC started against the petitioner and his family members at the instance of the respondent shall be loosen"

4Against the judgment and order pa$sed by the Family Court, the respondent preferred appeal (MA IA Nb.59 of 2005) ·SANJEElf:A DAS v. TAP.A:N ·Kl:fM:AIR ~tvK:i~'.AJ.;jfy '1;037 [AFTAB ALA'M, .J.] before the Galeutta High Gourt. f.tw appeal was !disposeel o'f IA by 3 division bench of the High Court b.y -Order 'Oatea :September 2, 20(:)9. From that order 1t iippears that :the res·~ndent filed ah affidavit befO're the coon: declahn@ his willingness to ~ya sum ofRs.10,'0b,OOO.OO (rupees ten lakhs only) as me term maintenance of the appellant and fo'r the re expe'A'ses of •rna'rria'ge of their daughter Kumari Ayushi Mohanfy (Richi), ,in consideration of the dissolution of his marriage wiflli the appellant by a decree of divorce and compounding of a criminal case instituted against him by the appellant.

The respondent further stated in the affidavit that he would pay the e sum of Rs.5,00,000.00 (rupees five lakhs only) within 4 months from the date of passing of the decree of divorce ahd the balance amount of Rs.5,0b,ooo.oo (rupees five ·lakhs Only) in 4 equal installments spread over a period of e years from the date of the passing of the decree of divorce. The High Cc'J'urt in its order dated September 2, 2009 simply paraphrasea the statements made in the affidavit filed by the respondent ana made lt the order of the court. The order _dated Sept~r:!lber_2~ 2009 was later modified by order dated November 20, 2009 to the further advantage of the respondent. ft was clarified that E the payment of Rs.10,00,000.00 (rupees teh fal<hs only) was not only for the lifetime maintenance of the appellant but also for the maintenance of the daughter, Kuman Ayushi Moharity (Richi) till she got married besides the e~penses that might be incurred for her marriage.

5These two orders passed by the High Court, b'y which it purported to grant a decree of divorce for dissolution of the respondent's marriage with the appellant are how before us in appeal and piainly speaking we are unable to put any meaning to the order of the High Court. The marriage between the G respondent and the appeliaht was admitteafy solemnized in accordance with the Hindu religious rites. A Hindu marriage can be dissofvetl only on any of the gfounds plainly and Clearly enumerated under section 13 of the Hindu Marriage Act. The law does not permit the purchase of a decree of divorce fof Fl A consideration, with or without the consent of the other side.

6Leaned counsel appearing for the respondent urged us not to interfere in the matter submitting that the respondent and the appellant had lived together barely for four months. He 8 stated ~hat the marriage had taken place on April 29, 1994 and from August 24, 1994 they are living separately. He also tried to argue that the order of the High Court was passed with the consent of the parties and for that reason also this Court should not interfere in. the matter. We are not prepared to acceptthe submission for a moment. First, there is nothing to C indicate that the order was passed with the consent of the appellant. All that is said in the order is as under: "On consideration of such affidavit and the submission of the learned counsel appearing for the parties, we dispose both these appeals with the following directions" (Emphasis added)

7The affidavit referred to in the order is the one filed by the respondent and consideration of submission of counsel for the parties does not indicate that the appellant had given her consent for dissolution of her marriage with the respondent on payment of Rs.10,00,000.00 (rupees ten lakhs only). Secondly, and more importantly, the consent of the parties is of no relevance in the matter. No court can assume jurisdiction to dissolve a Hindu marriage simply on the basis of the consent of the parties de hors the grounds enumerated under section 13 of the Act, unless of course the consenting parties proceed under section 138 of the Act.

8In the light of the discussions made above, we find the order of the High Court completely unsustainable. It is set aside and the appeal against the judgment and order passed by the Family Court is restored to its file. The High Court must now hear and dispose of the appeal along with the connected appeal afresh, in accordance with law. Since the matter is SANJEETA DAS v. TAPAN KUMAR MOHANTY [AFTA8 ALAM, J.] somewhat old, the High Court may give the appeals some priority and dispose them of at an early date.

9In the result, the appeals are allowed with costs, quantified at Rs.15,000.00 (rupees fifteen thousand only). 8.8.8 Appeals allowed. 8