*THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No.2675 of 2002 % 08.03.2010 Between: M.Pushpalatha w/o. Venkateswarlu, age 35 years, r/o. H.No.20-82/1, behind Sarada Talkies, Saroornagar, Hyderabad, .....APPELLANT AND M. Venkateswarlu s/o.Agaiah Chary, age 38 years, Inspector of Police, Transport Organization, Hyderabad, r/o.4-8-608/2, Gowliguda Chaman, Hyderabad. .....RESPONDENT ! COUNSEL FOR APPELLANT: Mr. B.KRISHNA MOHAN ^ COUNSEL FOR RESPONDENT: Mr.S.R.SANKU < Gist: > Head Note: ? CITATIONS: 1. (2009) 10 SCC 415 2. AIR 2009 SC 2254 THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No.2675 of 2002 JUDGMENT: (Hon’ble Sri Justice B.N.Rao Nalla) This Civil Miscellaneous Appeal is filed by wife aggrieved by the order dated 07.01.2002 passed in O.P.No.636 of 2000 on the file of the Family Court, Hyderabad, whereunder and whereby the said O.P. filed by husband for grant of divorce under Section 13(1) (ia) and (ib) of the Hindu Marriage Act, 1955 (for short ‘the Act’), was allowed. 2. For the sake of convenience, the parties hereinafter be referred to as the appellant and the respondent as arrayed in this C.M.A. 3. After remanding the suit O.S.No.190 of 1995 for fresh disposal by this court by order dated 31.3.2000 in Appeal No.444 of 2000, the present O.P. was clubbed with the said suit. The suit was filed by the respondent under Section 26 and Order VII Rule 1 & 2 CPC to declare the matrimonial status of the respondent (plaintiff therein) to be one having married appellant (first defendant therein), and defendants 3 and 4 are not his wives and also for injunction to restrain defendant No.2- Inspector General of Police, from proceeding with departmental enquiry against the respondent and the said suit was dismissed while granting divorce in the O.P. 4. The brief facts of the case in O.P.No.636 of 2000 are as follows: Initially O.P.No.413 of 1999 was filed by the respondent for divorce on the file of the Family Court, Secunderabad, which was later transferred to the Family Court, Hyderabad and renumbered as O.P.No.636 of 2000. It is the case of the respondent that after the marriage he came to know that appellant was suffering from mental illness and when this fact was brought to the notice of her parents, they took her to their house. Thereafter, the appellant failed to join him. As such, he filed O.P.No.236 of 1986 for annulment of marriage on the ground of desertion. Later at the intervention of elders, the said O.P. was withdrawn paving the way for their reunion on 27.9.1987. That thereafter, the appellant filed a false complaint of dowry harassment against the respondent and his family members and the same was closed. Then, the respondent filed O.P.No. 209 of 1988 for divorce and the same was dismissed on contest. Against the dismissal, the respondent preferred C.M.A.No.680 of 1994 before this court and the same was dismissed as withdrawn as the appellant has agreed to live with the respondent. As she did not come forward to live with him and even not allowed him to see his child, the respondent again filed O.P.No.407 of 1998 for restitution of conjugal rights and the same was allowed. As the appellant refused to join respondent, he filed O.P.No.413 of 1999 which was renumbered as 636 of 2000 as stated in para 4, supra. 5. The appellant filed counter in the O.P. denying the allegations levelled against her, except admitting the date of marriage, giving birth to a female child and withdrawal of O.P. for annulment of marriage by the respondent at the intervention of the elders. It is alleged that while she was living with him, the respondent harassed her and dropped her at her parents house and then filed O.P. 209 of 1988 for divorce which ended in dismissal on contest. The contention of the respondent that her complaints to Police are false or she was harassing by giving false complaints, are all false. That when she filed maintenance case, he filed O.P.No.407 of 1998 for restitution of conjugal rights which was decreed exparte. 6. Basing on the pleadings of both parties, the court below framed the following point for consideration: Whether the petitioner (respondent herein) is entitled to divorce or any other alternative reliefs. If so, with what terms and conditions? 7. O.S.No.190 of 1995 and O.P.No.636 of 2000 were clubbed together and common evidence was let in. On behalf of the respondent PWs 1 to 4 were examined and Exs.A.1 to A.7 were marked, whereas on behalf of the appellant and other defendants DW.1 to DW.3 were examined and Exs.R.1, X.1 to X.7 were marked besides marking Ex.C.1. 8. The court below after taking into consideration the documentary evidence brought on record by both the parties and also after hearing the contentions raised by their respective counsel, allowed the O.P. on the ground that the marriage between the parties is irretrievably broken down. The respondent is directed to pay Rs.1,25,000/- towards maintenance of the appellant and Rs.1,75,000/- towards maintenance and marriage expenses of their daughter-Swetha living with the appellant. Challenging the same, the present C.M.A. has been filed by the appellant. 9. The learned counsel for the appellant contended that the impugned order is contrary to facts and law, weight of evidence and probabilities of case; that there are no substantial grounds. It is the case of the appellant that she has not deserted the respondent at any point of time and the respondent is alone responsible for separation by virtue of his conduct, subjecting her to harassment and cruelty; that the appellant has been opposing the divorce petition and that the facts and circumstances do not conclude that the marriage is irretrievably broken down. With regard to finding of the court below that the marriage is irretrievably broken down, the appellant relied on decisions reported in Anil Kumar Jain v. Maya Jain[1] and Vishnu Dutt Sharma v. Manju Sharma,[2] 10. Heard the learned counsel for the appellant and the learned counsel for the respondent and perused the material brought on record. 11. The marriage between the appellant and the respondent took place on 22.11.1985 and they are blessed with a female child in December,1986. When the respondent brought to the notice of the parents of the appellant that she was suffering from mental illness, they took her to their house. As the appellant failed to join him, the respondent filed O.P.No.236 of 1986 for annulment of marriage. However, the said O.P. was withdrawn at the intervention of elders. Later both appellant and respondent joined together in September,1987. Subsequently, she lodged a complaint under Section 498-A IPC against the respondent and his family members and later the complaint was closed as false. Then the respondent filed O.P.No.209 of 1988 for divorce and the same ended in dismissal on contest. Against the dismissal, the respondent filed C.M.A.No.680 of 1994 before this court which was later withdrawn as the appellant has agreed to live with him. When the appellant did not come forward to live with him, respondent filed O.P.No.407 of 1996 for restitution of conjugal rights and the same was decreed exparte under Ex.A.7. The respondent did not take any steps either for execution of the decree in the said O.P. for restitution of conjugal rights or otherwise to secure the company of the appellant. 12. The respondent is in the service of A.P. Police Department since 1.4.1984 and since 1992, he was working as Inspector Technical and thereafter, he was deputed at Prime Minister’s secretariat. While he was working at Prime Minister’s secretariat, the appellant made complaint dated 28.1.1992 to the Prime Minister’s office and the D.G.P.,Andhra Pradesh, Hyderabad complaining that the respondent contracted two more marriages and the D.G.P. conducted preliminary enquiry and came to the conclusion that respondent contracted plural marriages and initiated departmental enquiry for violation of the conduct rules. The departmental enquiry was initiated on two aspects, one is for dowry received and the other is for contracting plural marriages. The respondent challenged the disciplinary proceedings before the Andhra Pradesh Administrative Tribunal in O.A.No.3859 of 1998 and he failed to obtain interim relief for suspension of the disciplinary proceedings. During the pendency of the O.A., he filed the suit O.S.No.190 of 1995 and obtained injunction orders restraining the employer from proceeding with the disciplinary enquiry. It is to be noted here that PW.1 in his cross examination admitted that he did not mention about filing of the O.A. Initially the suit was dismissed, against which the respondent preferred appeal before this court and this court remanded the matter for fresh disposal. While things stood thus, he again filed O.P.No.413 of 1999 on the file of the Family Court, Secunderabad which was later transferred to the Family Court, Hyderabad and renumbered as O.P.No.636 of 2000. 13. It is to be noted here that O.P.No.636 of 2000 was filed under Section 13(1) (ia) and (ib) of the Act on the ground of desertion and cruelty. The court below while disposing of the O.P. observed that after passing of the decree in O.P.No.407 of 1996, the respondent did not take steps to execute the decree for bringing her to matrimonial home and the appellant also did not challenge the exparte decree by filing a petition. The respondent has withdrawn the C.M.A.No.680 of 1994 on the premise that the appellant agreed to live with him. The appellant did not take any steps to join the respondent. From the cross examination of DW.1 dated 15.12.1999, the court below came to the conclusion that appellant has no intention to join the respondent as she demanded deposit of Rs.3 lakhs by respondent in the name of their daughter for her joining with him. As such, the court below observed that there is constructive desertion on the part of PW.1 and DW.1. 14. The court below while answering the grounds of desertion and cruelty in favour of the respondent, held that since 13 years by then, the couple are living away from each other and fighting the court litigation with vengeance, and as such the marriage between the parties is irretrievably broken down. 15. The learned for the appellant contended that the court below has no jurisdiction to grant a decree of divorce on the ground that the marriage between the parties is irretrievably broken down and that the Supreme Court alone has exclusive power under Article 142 of the Constitution of India to grant such decree and therefore, the decree granted by the court below cannot be sustained and the same is liable to be set-aside. In support of his contention he relied on the decisions of the Supreme Court i n Anil Kumar Jain v. Maya Jain and Vishnu Dutt Sharma v. Manju Sharma, (Supra). 16. In Anil Kumar Jain’s case, the Apex Court observed as hereunder: “ 27. In all the subsequent cases, the Supreme Court invoked its extraordinary powers under Article 142 of the Constitution of India in order to do complete justice to the parties when faced with a situation where the marriage ties had completely broken and there was no possibility whatsoever of the spouses coming together again. In such a situation, this court felt that it would be a travesty of justice to continue with the marriage ties. 28. It may, however, be indicated that in some of the High Courts, which do not possess the powers vested in the Supreme Court under Article 142 of the Constitution, this question had arisen and it was held in most of the cases that despite the fact that the marriage had broken down irretrievably, the same was not a ground for granting a decree of divorce either under Section 13 or Section 13-B of the Hindu Marriage Act,1955. 29. In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable breakdown of marriage is not one of the grounds indicated whether under Sections 13 or 13-B of the Hindu Marriage Act,1955 for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13-B of the aforesaid Act. This doctrine of irretrievable breakdown of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on the grounds not provided for in Sections 13 and 13-B of the Hindu Marriage Act,1955. 30. The second proposition is that although the Supreme Court can, in exercise of its extraordinary powers under Article 142 of the Constitution, convert a proceeding under Section 13 of the Hindu Marriage Act,1955 into one under Section 13-B and pass a decree for mutual divorce, without waiting for the statutory period of six months, none of the other courts can exercise such powers. The other courts are not competent to pass a decree for mutual divorce if one of the consenting parties withdraws his/her consent before the decree is passed. Under the existing laws, the consent given by the parties at the time of filing of the joint petition for divorce by mutual consent has to subsist till the second stage when the petition comes up for orders and a decree for divorce is finally passed and it is only the Supreme Court, which, in exercise of its extraordinary powers under Article 142 of the Constitution, can pass orders to do complete justice to the parties.” 17. I n Vishnu Dutt Sharma’s case, the Apex Court observed as hereunder: “11. on a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce., This Court cannot add such a ground to section 13 of the Act as that would be amending the Act, which is a function of the legislature. 12. ….If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court…..” 18. We have gone through the decisions cited above. As rightly contended by the learned counsel for the appellant, the Supreme Court alone has exclusive power to declare a marriage between the parties as irretrievably broken down in exercise of power under Article 142 of the Constitution of India basing on the facts and circumstances of the case. The O.P. therein was filed under Section 13-B of the Act for mutual divorce. Therefore, in view of the proposition of law laid down by the Supreme Court, we are of the considered view that the court below is not empowered to grant a decree of divorce on the ground that the marriage between the parties is irretrievably broken down. 19. It is pertinent to note here that though the O.P. was filed on the ground of desertion and cruelty, the court below without specifically dealing with those aspects, came to the conclusion that the marriage between the parties is irretrievably broken down and consequently granted decree of divorce in favour of the respondent. From the evidence and from the facts and circumstances of the case, we are of the opinion that the respondent has not established the ground of desertion and cruelty as there was allegation that the respondent contracted plural marriages and the said fact was proved in a preliminary enquiry conducted by the disciplinary authority against the respondent. The observation made by the court below that the complaint lodged by the appellant against the respondent was closed as false, cannot be a ground to hold that there was cruelty on the part of the appellant. Filing of criminal cases per se cannot be treated as an important ground for granting divorce since the same does not amount to cruelty. 20. Having regard to the facts and circumstances of the case, the impugned order is set-aside and O.P.No.636 of 2000 stands dismissed. Accordingly, the C.M.A. is allowed. There shall be no order as to costs. ______________ V.ESWARAIAH,J ______________ B.N.RAO NALLA, J 08.03.2010 Stp [1] (2009) 10 SCC 415 [2] AIR 2009 SC 2254