Case: AJAY KUMAR RATHEE Vs. SEEMA RATHEE

have to develop some interaction with the appellant-father if she wants him to play a role in her education. At the request of parties the matter was again referred to mediation but the report was one of failure and as per the learned counsel for the appellant, it became acrimonious and unpleasant in terms of the telephonic conversations, as recorded in our order dated 22.2.2022. We, thus, directed the matter to be put on the regular board in the week commencing 08.3.2022. 10. None appeared for the respondent in the pre-lunch session or in the post-lunch session. We have thus heard learned counsel for the appellant and perused the records. On analysis of the impugned judgment what transpires is that the High Court has reversed the findings of the trial Court predicated on a reasoning that the only reliable evidence was of the appellant as PW-1 against that of the respondent. 11. We are faced with the scenario of failed marriage at least since 2004, if not since 2002 i.e., 18 years have passed and thus the chances of any reconciliation are impossible, more so in view of what has recently transpired during the mediation process. 12. Learned counsel for the appellant submits that dehors the divorce on ground of desertion, what he pleads now is that in any case a decree of divorce is liable to be granted on account of irretrievable breakdown of marriage by this Court invoking the jurisdiction under Article 142 of the Constitution of India. 13. Learned counsel has referred to a number of judgments (Sivasankaran V. Santhimeenal, C.A. No.4984-4985) in this behalf to advance the proposition that where the parties have been living apart from a long period of time and all endeavor to save the marriage has failed, the Courts can dissolve a marriage as irretrievably broken down. 14. We have also taken note of Sukhendu Das V. Rita Mukherjee (2017) 9 SCC 632, (2017) 4 SCC (Civ) 714, in which it is concluded that it is not open for the wife to contend that unless both parties consent, the exercise of jurisdiction under Article 142 of the Constitution of India for dissolving a marriage may not be appropriate. 15. In the present case, however, we have noticed the stand of the respondent in earlier proceedings that she was not disagreeable to the grant of a decree of divorce on account of irretrievable breakdown of marriage, without admitting the allegations made by the appellant against her in the divorce petition. This is of course subject to the two caveats referred to aforesaid. 16. The endeavor to settle the matter has not succeeded right from the family Court which took an active approach to endeavor reconciliation, but unsuccessfully. 17. The legal position emanating from various judgments does say that the Supreme Court can in special circumstances pass appropriate orders to do justice to the parties in a given factual scenario by invoking the powers under Article 142 of the Constitution of India and this was to the extent of granting a decree of divorce by mutual consent. 18. We are unequivocally of the view that nothing really subsists in this marriage except mutual accrimony. It is not even possible for the parties to sit across the table or to even talk over telephone to come to a reasonable understanding. There remains no doubt about irretrievable breakdown of marriage in the facts of the present case. Thus, we are inclined to exercise our jurisdiction under Article 142 of the Constitution of India by granting a decree of divorce on the said ground. 19. The only question would be as to what should be the terms and conditions of divorce, looking to the financial status of the parties. 20. We have perused the affidavit of the respondent which states that she has practically no money and means, and lives with her brother who is supporting her and her daughters education. 21. We have also perused the affidavit of the appellant with documents insofar as his financial status is concerned. The appellant is working as a Wireless Operator in the Indian Coast Guard and his monthly income after deduction is Rs.42,492/-. However, amongst the deductions, he has claimed is a voluntary GPF subscription of Rs.35,000/- which cannot be considered for the purposes of determining the amounts in the hands of the appellant. If that amount is added, the total emoluments of the appellant would amount to about Rs.78,000/- per month. 22. The appellant is about 52 years of age and thus would continue for the next few years till the age of 57 years. 23. The appellant has also stated that he has 1/8th share along with his mother, three sisters and four brothers in the joint ancestral agricultural land measuring 3.5 acres approximately in village Rajpura, Tehsil Gannaur, District Sonipat, Haryana, which has not been partitioned. Similarly he has 1/8th share in the joint ancestral house measuring 250 Gaj approximately in the same village. He has also mentioned that he owns a house measuring 107 Gaj in Gannaur, District Sonipat, Haryana wherein his mother is presently residing, and that he owns a plot measuring 100 Gaj in the same district. The appellant has three saving bank accounts which show balances of a little over Rs.9,00,000/-. The interim maintenance is stated to have been paid till September, 2021 as per the aforesaid affidavit. 24. In so far as the daughters expenses for education and marriage are concerned, it appears from her approach that she does not want to maintain any relationship with the appellant and is about 20 years of age. She is entitled to choose her own path but then cannot demand from the appellant the amount towards the education. We, thus, hold that the daughter is not entitled to any amount but while determining the amount to be paid as permanent alimony to the respondent, we are still taking care to see that if the respondent so desires to support the daughter, funds are available.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. None appeared for the respondent in the pre-lunch session or in the post-lunch session. We have thus heard learned counsel for the appellant and perused the records. On analysis of the impugned judgment what transpires is that the High Court has reversed the findings of the trial Court predicated on a reasoning that the only reliable evidence was of the appellant as PW-1 against that of the respondent.11. We are faced with the scenario of failed marriage at least since 2004, if not since 2002 i.e., 18 years have passed and thus the chances of any reconciliation are impossible, more so in view of what has recently transpired during the mediation process.14. We have also taken note of Sukhendu Das V. Rita Mukherjee (2017) 9 SCC 632,  (2017) 4 SCC (Civ) 714, in which it is concluded that it is not open for the wife to contend that unless both parties consent, the exercise of jurisdiction under Article 142 of the Constitution of India for dissolving a marriage may not be appropriate.15. In the present case, however, we have noticed the stand of the respondent in earlier proceedings that she was not disagreeable to the grant of a decree of divorce on account of irretrievable breakdown of marriage, without admitting the allegations made by the appellant against her in the divorce petition. This is of course subject to the two caveats referred to aforesaid.16. The endeavor to settle the matter has not succeeded right from the family Court which took an active approach to endeavor reconciliation, but unsuccessfully.17. The legal position emanating from various judgments does say that the Supreme Court can in special circumstances pass appropriate orders to do justice to the parties in a given factual scenario by invoking the powers under Article 142 of the Constitution of India and this was to the extent of granting a decree of divorce by mutual consent.18. We are unequivocally of the view that nothing really subsists in this marriage except mutual accrimony. It is not even possible for the parties to sit across the table or to even talk over telephone to come to a reasonable understanding. There remains no doubt about irretrievable breakdown of marriage in the facts of the present case. Thus, we are inclined to exercise our jurisdiction under Article 142 of the Constitution of India by granting a decree of divorce on the said ground.20. We have perused the affidavit of the respondent which states that she has practically no money and means, and lives with her brother who is supporting her and her daughters education.21. We have also perused the affidavit of the appellant with documents insofar as his financial status is concerned. The appellant is working as a Wireless Operator in the Indian Coast Guard and his monthly income after deduction is Rs.42,492/-. However, amongst the deductions, he has claimed is a voluntary GPF subscription of Rs.35,000/- which cannot be considered for the purposes of determining the amounts in the hands of the appellant. If that amount is added, the total emoluments of the appellant would amount to about Rs.78,000/- per month.22. The appellant is about 52 years of age and thus would continue for the next few years till the age of 57 years.23. The appellant has also stated that he has 1/8th share along with his mother, three sisters and four brothers in the joint ancestral agricultural land measuring 3.5 acres approximately in village Rajpura, Tehsil Gannaur, District Sonipat, Haryana, which has not been partitioned. Similarly he has 1/8th share in the joint ancestral house measuring 250 Gaj approximately in the same village. He has also mentioned that he owns a house measuring 107 Gaj in Gannaur, District Sonipat, Haryana wherein his mother is presently residing, and that he owns a plot measuring 100 Gaj in the same district. The appellant has three saving bank accounts which show balances of a little over Rs.9,00,000/-. The interim maintenance is stated to have been paid till September, 2021 as per the aforesaid affidavit.24. In so far as the daughters expenses for education and marriage are concerned, it appears from her approach that she does not want to maintain any relationship with the appellant and is about 20 years of age. She is entitled to choose her own path but then cannot demand from the appellant the amount towards the education. We, thus, hold that the daughter is not entitled to any amount but while determining the amount to be paid as permanent alimony to the respondent, we are still taking care to see that if the respondent so desires to support the daughter, funds are available.