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Bachan Chand v. Ram Kirti - FAO-184-M-2002 [2006] RD-P&H 12670 (15 December 2006)

F.A.O.No.184-M of 2002 [1]


Date of decision : 13.12.2006.

Bachan Chand ........Appellant


Ram Kirti .......Respondent

Present : Mr.M.S.Bedi, Advocate for the appellant.

Mr.R.N.Moudgil, Advocate for the respondent.

* * *



The present appeal is against the judgment and decree passed by the learned trial Court on 22.4.2002, whereby a petition for dissolution of marriage, filed by the appellant on the ground of desertion and cruelty, was dismissed.

The marriage between the parties was solemnized on 29.6.1995 and a female child was born on 24.9.1996 out of the wedlock.

The appellant sought dissolution of marriage by filing a petition on 11.8.1998, on the ground that respondent-wife started quarreling with the appellant-husband and his parents and that she asserted that she does not want to live with his parents and that she compelled the appellant to live in her parents house as Ghar Javai and hand over whole of his pay to her and also threatened him not to talk with his parents and relations. The respondent refused to cook for the appellant and abused him and his parents and used to create scenes in the village just to put pressure on him to leave his parents. It is also alleged that respondent gave beatings to the F.A.O.No.184-M of 2002 [2]

appellant and his parents in the presence of other colleagues, relations and co-villagers. It is also alleged that on 15.4.1996, the respondent-wife left the house of the appellant-husband in his absence and took all the jewelry, valuable clothes, cash etc. with her and never came back.

In her reply, the respondent-wife has denied the allegations of misbehaviour either with the appellant-husband or his family members. It was asserted that the respondent never physically assaulted the husband and that respondent has not left the matrimonial house, but had been living there and continuously visiting her in-laws despite the fact that the appellant does not speak to her and whenever she visits, the appellant misbehaved with her and that she has neither treated the appellant with cruelty nor has deserted him, but the fact of the matter was that the appellant had openly been insulting the respondent.

After considering the evidence led by the parties, the learned trial Court returned a finding that the allegations levelled by the appellant are general, vague and unconvincing. The statement of witnesses of the appellant are contradictory to each other. No witness has come forward to state that in his presence on such and such date, on such and such occasion, the respondent ever abused, insulted or beat the appellant- husband and his parents. Not even a single instance has been narrated revealing that something more serious than ordinary wear and tear of the marriage has ever happened. The learned trial Court has also considered the statement of RW-3 Tarsem Chand, neighbourer of the appellant- husband, who has deposed that he has never seen or heard the respondent misbehaving with the appellant or with any of his family members.

F.A.O.No.184-M of 2002 [3]

Learned counsel for the appellant has argued that the statement of RW-3-Tarsem Chand has been wrongly relied upon by the learned trial Court as the said witness is inimical towards the appellant, therefore, the finding recorded by the learned trial Court is not sustainable. It is also argued that as the parties are living separately since the year 1996, therefore, the marriage should be dissolved on account of irretrievable break down of the marriage. However, I do not find any substance in the arguments raised by learned counsel for the appellant.

RW-3 Tarsem Chand has been cross-examined by the appellant. Merely asserting that the witness is inimical, is not sufficient to discard his testimony. Even if the said statement is not to be taken into consideration, still the appellant has failed to prove any single instance of cruelty. In the absence of proof of any allegation, the finding recorded by the learned trial Court cannot be said to be suffering from any illegality or irregularity.

As far as the judgment reported as "2006 (4)-Supreme Court Cases-558, Naveen Kohli versus Neelu Kohli", is concerned, I have considered the said question in F.A.O.No.185-M of 2002, Smt.Daljit Kaur versus Gurdip Singh", decided today, wherein it has been held that in Naveen Kohli's case (supra), the Hon'ble Supreme Court considered the 71st

report of the Law Commission of India, recommending that the marriage should be permitted to be dissolved when none of the parties can be said to be at fault. The Hon'ble Supreme Court made recommendation in the penultimate part of the judgment to the Union of India to consider an amendment in the Act, to incorporate irretrievable break down as a ground for grant of decree of divorce. It appears that in F.A.O.No.184-M of 2002 [4]

the said case, parties belonged to urbane, rich, suave and elite sections of Society, in as much as the husband was said to be in employment by the wife himself, who was running business in individual capacity from Kanpur. Present is a case, where the wife is working as a Primary School teacher in a village in District Gurdaspur, which is not comparable in any manner to the life style of other Metropolitan or major cities of India. In the Society to which the parties to the present proceedings belong, divorce is still considered to be stigmatic. May be the parties are living separately, but the wife has the solace to claim socially that she is married. It will not be easy for her to reside in that society with dignity, if the marriage is dissolved.

In the aforesaid case, though the Hon'ble Supreme Court has dissolved the marriage on the ground of its irretrievable break down, but such exercise of jurisdiction by the Hon'ble Supreme Court would be deemed to be in exercise of powers conferred under Article 142 of the Constitution of India. Article 142 of the Constitution empowers the Hon'ble Supreme Court to pass such decree or order as is necessary for doing complete justice in any case and matter pending before it. In "Indian Bank versus ABA Marine Products Pvt. Ltd. (Civil Appeal No.10074-75 of 2003, decided on 18.4.2006)," it was held that every Court does not have the power similar to the one conferred under Article 142 of the Constitution and any attempt to follow such power will lead to incongruous and disastrous results. It was held to the following effect:- "It is further submitted that any direction issued in exercise of power under Article 142 to do proper justice and the reasons, if any, given for exercising such power, cannot be considered as law laid down by this F.A.O.No.184-M of 2002 [5]

Court under Article 141. It is pointed out that other Courts do not have the power similar to that conferred on this Court under Article 142 and any attempt to follow the exercise of such power will lead to incongruous and disastrous results.

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23-A. One word before parting. May a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigor of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that Courts have followed not the law declared, but the exemption/ relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The Courts should, therefore, be careful to ascertain and follow the ration decidendi, and not the relief given on the special facts, exercising power under Article 142......" Therefore, the Hon'ble Supreme Court alone would have the jurisdiction to dissolve the marriage on the ground of irretrievable break down of marriage till such time, such ground is made part of the statute.

F.A.O.No.184-M of 2002 [6]

Keeping in view the foregoing discussion, I do not find any ground to set-aside the judgment and decree passed by the Courts below.

The present appeal is dismissed.


December 13, 2006 JUDGE



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