SMT. CHANDRAKALA TRIVEDI versus DR. S.P. TRIVEDI

R.M. SAHA!, J. This is wife's appeal against grant or decree by divorce by the High Court on ground of cruelty under Section 13(1)(a) of the Hindu Marriage Act. When leave was granted this Court observed, "Special leave is granted as p1ima facie it appears that there are some points of law arising in the matter which may deserve consideration. We must, however, express that it is with some regret that we arc granting leave in this matter because it appears to us that the marriage between the parties is, for practical purposes, dead. The only child of the marriage is a daughter who is also married and settled. The enforced continuity of the marriage will only mean that the parties will spend more years in bitterness against each other. The husband is in a position to provide reasonable maintenance or permanent alimony. We can only hope by the time the appeal reaches - hearing the parties will be in a more reasonable frame of mind and arrive at some resolution of thei.r problems which will be mutually acceptable to them." But when the special leave petition \\as taken up for hearing the parties adopted very tough and rigid attitude. And that too when they are grandparent by now. Prime of life is lost but the fire of dislike for each other was still burning hot. We do share feelings of wife expressed by the learned counsel that a conservative Hindu lady would no prefer to be know a.s divorcee in the society. At the same time we cannot be oblivious of impossible situation in which the parties have landed themselves which indeed is unfortunate.

pp. 797–798, margin E

Both the appellant (wife) and the respondent (husband) come of middle class families. Their father were vaid by profession. The husband while he was "doing internship at the LI. Hospital, Bombay, was married to the appellant and from their wedlock a daughter was born who admittedly is now married. Differences appear to have arisen sometime in late seventies nine years after marriage due lo alleged intimacy of the husband with another lady doctor, which ultimately led to filing the petition for divorce by the husband on ground of cruelty. When written statement was filed and allegations of adultery were made against the husband he set up a case of undesirable association of his wife with young boys. Unfortunately for the appellant even the Matrimonial Court which dismissed the petition found that her behaviour was not of a Hindu married woman. Whether the allegation of the husband that she was in the habit of associating with young boys and the finding recorded by the three courts are correct or not but what is certain is that once such allegations are made by the husband and wife as have been made in this case then it is obvious that the marriage of the two cannot in any circumstances be continued any further. The marriage appears to be practically dead as from cruelty alleged by the husband it has turned out to be at least intimacy of the husband with a lady doctor and unbecoming conduct of a Hindu Wife.

p. 798, margin B

The submission of the learned counsel for the appellant that the Division Bench committed error in observing that matrimonial proceedings are quasi criminal in nature therefore it was for the \vife to prove beyond all reasonable doubt that the husband was leading an adulterous life appears to have some merit in view of a decision of this Court in Narayan Ganesh Dastane v. Sucheta Narayan Dastane, [1975] 3 SCR 967. But we do not propose to examine it as we are satisfied that the marriage is dead and · the findings of fact cannot be set aside by this Court except that the appeal can be sent back to Division Bench to decide it again which would mean another exercise in futility leading to tortuous litigation and continued agony of the parties. We may also mention that the findings of unbecoming behaviour or the appellant appear to be shaky. We, therefore, direct that such findings in the judgment of all the courts shall stand deleted. Yet we have decided not to interfere with the order passed by the Division Bench. One uf the reasons for this is that the husband on our persuasion agreed to provide for a one bed-room flat to the appellant in a locality where it can be available between Rs. 3 to 4 lacs. He also agreed to deposit a sum of Rs. 2,00,000 for the welfare of the appellant.

pp. 798–799, margin E

4. Therefore, while dismissing this appeal we direct the husband (respondent) to purchase a flat for the appellant in Thane between Rs. 3 to 4 lacs. He shall further deposit a sum of Rs. 2,00,000 by a demand bank draft in name of the appellant with the Family Court, Bombay which shall be withdrawn by her. The house shall be purchased within six months from today and vacant possession shall be handed over to the appellant.

p. 799, margin B

S. ln case the appellant is not agreeable for one room flat at Thane she shall intimate in writing within one month from today. On being informed of it the husband shall deposit a sum of Rupees Five Lakhs by a demand draft payable to the appellant with the Family Court within three months thereafter. The appellant shall be entitled to withdraw it.

p. 799, margin D

6. The decree for divorce shall remain suspended for the aforesaid period depending on the appellant if she accepts Rupees Five Lakhs or a one room flat in Thane and Rupees Two Lakhs.

p. 799, margin E

Subject to these the appeal is dismissed.

p. 799, margin E

Parties shall bear their own costs. N.P.V. Appeal dismissed.

p. 799, margin F