Case study: Naveen Kohli

At present, various grounds for dissolution of marriage by a decree of divorce are laid down in section 13 of the Hindu Marriage Act, 1955. The grounds inter alia include adultery, cruelty, desertion, conversion to another religion, unsoundness of mind, virulent and incurable form of leprosy, venereal disease in a communicable form, renouncement of the world and not heard as being alive for a period of seven years or more. Section 27 of the Special Marriage Act, 1954 also lays down similar grounds.  However, section 13-B of the Hindu Marriage Act and Section 28 of the Special Marriage Act provide for divorce by mutual consent as a ground for presenting a petition for dissolution of marriage. The said sections inter alia provide that a petition for dissolution of marriage by mutual consent, if not withdrawn before six months after its presentation or not later than 18 months, then, the court may, on being satisfied after making inquiry, grant decree of divorce by mutual consent. However, it has been observed that the parties who have filed petition for mutual consent suffer in case one of the parties abstains himself or herself from court proceedings and keeps the divorce proceedings inconclusive. This has been causing considerable hardship to the party in dire need of divorce.

Incidentally, it may be pertinent to point out here that such a legal proposition has been recommended by the Law Commission of India in its 217th report on ‘Irretrievable Breakdown of Marriage – Another Ground for Divorce’. Further, the Hon’ble Supreme Court, in the case of Ms. Jorden Diengdeh Vs. S.S. Chopra reported in AIR 1985 SC 935 and in the case ofNaveen Kohli Vs. Neelu Kohli AIR 2006 SC 1675, has observed and recommended that irretrievable breakdown of marriage should be incorporated as another ground for grant of divorce.

The husband, Naveen Kohli got married to Neelu Kohli on 20.11.1975. Three sons were born out of the wedlock of the parties. The husband constructed three factories with the intention of providing a separate factory for his three sons. He also constructed bungalow no.7/36 A for their residence. According to the husband, the wife is bad tempered and a woman of rude behaviour. After marriage, she started quarrelling and misbehaving with the husband and his parents and ultimately, the husband was compelled to leave the parental residence and started to reside in a rented premises from May 1994.

The husband alleged that in the month of May 1994, when he along with the wife and their children visited Bombay to attend the golden jubilee marriage anniversary of his father-in-law, he noticed that the wife was indulging in an indecent manner and found her in a compromising position with one Biswas Rout. Immediately thereafter, the husband started living separately from the wife since May 1994. The husband suffered intense physical and mental torture.

According to the husband, the wife had withdrawn Rs.9,50,000/- from the Bank Account of the husband and deposited the same in her account.

The husband alleged that the wife got a false first information report registered against him under Sections 420/467/468 and 471 IPC which was registered as Case No.156 of 1995. According to him, the wife again got a case under Sections 323/324 I.P.C. registered in the police station Panki, Kanpur City and efforts were made to get the husband arrested.

The husband filed a Civil Suit No. 1158/1996 against the wife. It was also reported that the husband was manhandled at the behest of the wife and an FIR No.156 of 1996 was filed by the eldest son at the behest of the wife against the husband in police station, Panki complaining that the husband had physically beaten her son, Nitin Kohli.

The wife in her statement before the Trial Court had mentioned that she had filed an FIR against the husband under Section 420/468 IPC at the Police Station, Kotwali and the wife had gone to the extent of filing a caveat in the High Court in respect of the said criminal case so that the husband may not obtain an order from the High Court against her filing the said FIR.

In the same statement, the wife had admitted that she had filed an FIR No.100/96 at the Police Station, Kohna under Section 379/323 IPC against the husband.

The wife had also filed a complaint against the husband and his mother under Sections 498A/323/504/506 IPC at Police Station, Kohna.

The wife in her statement had admitted that she had opposed the bail of the husband in the criminal case filed at the Police Station, Kotwali on the basis of legal advice. In that very statement she further admitted that after the police had filed final report in both the criminal cases relating to Police Station, Kotwali and Police Station, Kohna, she had filed protest petition in those cases.

This clearly demonstrates the wife's deep and intense feeling of revenge. The wife in her statement had also admitted that she had filed a complaint in the Women Cell, Delhi in September 1997. According to the husband, the wife had filed a complaint no.125 of 1998 against the husband's lawyer and friend alleging criminal intimidation which was found to be false.

According to the husband, the wife filed a forged complaint under sections 397/398 of the Companies Act before the Company Law Board, New Delhi and in the affidavit of the wife she stated that the husband was immoral, alcoholic, and was having affairs with numerous girls since marriage. She also called him a criminal, infidel, forger and her manager to denigrate his position from the proprietor to an employee of her company.

The husband also mentioned that the wife filed a false complaint in Case No.1365 0f 1988 using all kinds of abuses against the husband.

On 8.7.1999, the wife filed a complaint in the Parliament Street Police Station, New Delhi and made all efforts to ensure the husband's arrest with the object of sending him to jail. The husband was called to the police station repeatedly and was interrogated by the police and only after he gave a written reply and the matter on scrutiny was found to be false, the husband with great difficulty was able to save himself from imprisonment.

On 31.3.1999 the wife had sent notice for breaking the Nucleus of the HUF, expressly stating that the Family Nucleus had been broken with immediate effect and asking for partition of all the properties and assets of the HUF and stating that her share should be given to her within 15 days. According to the husband, this act of the wife clearly broke all relations between the husband and the wife on 31.3.1999.

The wife had filed a complaint against the husband under Section 24 of the Hindu Marriage Act directing payment of maintenance during the pendency of the case. This was rejected by the Trial Court and she later filed an appeal in the High Court.

The husband had deposited Rs.5 lacs on Court's directions but that amount was not withdrawn by the wife. On 22.1.2001 the wife gave an affidavit before the High Court and got non-bailable warrants issued against the husband. Consequently, the husband was harassed by the police and ultimately he got the arrest order stayed by the High Court. The wife admitted in her statement that she got the advertisement published in the English National Newspaper 'Pioneer'. The advertisement reads as under :

PUBLIC NOTICE

Be it known to all that Mr. Naveen

Kohli S/o Mr. Prem Kumar Kohli was

working with my Proprietorship firm

as Manager. He has abandoned his

job since May 1996 and has not

resumed duties.

He is no more in the employment of

the firm. Any Body dealing with him shall be doing so at his own risk, his authority to represent the firm has

been revoked and none should deliver him orders, cash cheques or drafts

payable to the firm.

NEELU KOHLI

Sole Proprietor

M/s NITIN RUBBERS

152-B, Udyog Nagar,

Kanpur

The wife in her statement before the Court did not deny the contents of the affidavit but merely mentioned that she did not remember whether she called the husband a criminal, infidel and a forger in the affidavit filed before the Company Law Board.

The wife did not deny her using choicest abuses against the husband but merely stated that she did not remember.

The wife also filed a contempt petition in the Company Law Board against its order of the Company Law Board dated 25.9.2000 in order to try and get the husband thrown out of the little apartment and urged that the husband be sent to jail.

Before the Family Court, the wife stated about solemnization of the marriage with the husband on 20.11.1975. In her written statement she had denied the fact that she was either a rude or a quarrelsome lady. The wife also denied that she had mentally, physically and financially harassed and tortured the husband. She also stated that she never refused cohabitation with the husband. She also denied indulging in any immoral conduct. She averred in the written statement that the husband has been immorally living with a lady named 'Shivanagi'.

The husband, Naveen Kohli got married to Neelu Kohli on 20.11.1975. Three sons were born out of the wedlock of the parties. The husband constructed three factories with the intention of providing a separate factory for his three sons. He also constructed bungalow no.7/36 A for their residence

he noticed that the wife was indulging in an indecent manner and found her in a compromising position with one Biswas Rout. Immediately thereafter, the husband started living separately from the wife since May 1994.

According to the husband, the wife had withdrawn Rs.9,50,000/- from the Bank Account of the husband and deposited the same in her account.

The husband filed a Civil Suit No. 1158/1996 against the wife.

The following cases were filed by the wife against the husband.

1. The wife filed FIR No. 100/96 at Police Station, Kohna under Sections 379/323 IPC

2. The wife got a case registered under Sections 323/324 registered in the police station Panki, Kanpur City.

3. At the behest of the wife FIR No.156 of 1996 was also filed in the police station, Panki.

4. The wife filed FIR under Section 420/468 IPC at the Police Station, Kotwali.

5. The wife got a case registered under Section under Sections 420/467/468 and 471 IPC.

6. The wife filed a complaint against the husband under Sections 498A/323/504/506 IPC at Police Station, Kohna.

7. The wife had even gone to the extent of opposing the bail application of the husband in criminal case filed at the police station, Kotwali

8. When police filed final report in two criminal cases at police station, Kotwali and police station, Kohna, the wife filed protest petition in these cases.

9. The wife filed complaint no.125 of 1998 in the Women Cell, Delhi in September 1997 against the husband's lawyer and friend alleging criminal intimidation.

10. The wife filed a complaint under sections 397/398 before the Company Law Board, New Delhi.

11. The wife filed a complaint in Case No.1365 0f 1988 against the husband.

12. Again on 8.7.1999, the wife filed a complaint in the Parliament Street Police Station, New Delhi and made all efforts to get the husband arrested.

13. On 31.3.1999, the wife have sent a notice for breaking the Nucleus of the HUF.

14. The wife filed a complaint against the husband under Section 24 of the Hindu Marriage Act.

15. The wife had withdrawn Rs.9,50,000/- from the bank account of the husband in a clandestine manner.

16. On 22.1.01 the wife gave affidavit before the High Court and got non-bailable warrants issued against the husband.

17. The wife got an advertisement issued in a national newspaper that the husband was only her employee. She got another news item issued cautioning the business associates to avoid dealing with the husband.

The learned Trial Court came to a definite conclusion that the wife had filed a very large number of cases against the husband and got him harassed and tortured by the police.

According to the Trial court, there was no possibility to reconnect the chain of marital life between the parties. Hence, the Trial Court found that there is no alternative but to dissolve the marriage between the parties. The Trial Court also stated that the wife had not filed any application for allowing permanent maintenance and Stridhan but, in the interest of justice, the Trial Court directed the husband to deposit Rs.5,00,000/- toward permanent maintenance of the wife. The Trial Court also ordered that a decree of dissolution of marriage shall be effective after depositing the payment of Rs.5,00,000/- by the husband. Admittedly, the husband had immediately deposited the said amount.

The wife, aggrieved by the judgment of the Principal Judge, Family Court, Kanpur City, preferred the first appeal before the High Court, which was disposed of by a Division Bench of the Allahabad High Court.

According to the High Court, the husband had been living with one Shivangi. As per the High Court, the fact that on Trial Court's directions the husband deposited the sum of Rs.5,00,000/- within two days after the judgment which demonstrated that the husband was financially well off. The Division Bench of the High Court held that actions of the husband amounted to misconduct, un-condonable for the purpose of Section 13(1)(a) of the Hindu Marriage Act. The appeal was allowed and the Trial Court judgment has been set aside.

The husband preferred a Special Leave Petition before the Hon. Supreme  Court.

Both the parties have levelled allegations against each other for not maintaining the sanctity of marriage and involvement with another person. According to the wife, the husband is separately living with another woman, 'Shivanagi'. According to the husband, the wife was seen indulging in an indecent manner and was found in compromising position with one Biswas Rout. According to the findings of the Trial Court both the parties failed to prove the allegations against each other. The High Court has of course reached the conclusion that the husband was living with one 'Shivanagi' for a considerable number of years. The fact of the matter is that both the parties have been living separately for more than 10 years. Number of cases including criminal complaints have been filed by the wife against the husband and every effort has been made to harass and torture him and even to put the husband behind the bars by the wife. The husband has also filed cases against the wife.

the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.

Thus to conclude, it can be said that marriage is an institution in the maintenance of which the public at large is deeply interested. There is no useful purpose surved by continuing such a marriage. Thus, on the basis of "irretrievable breakdown theory" such marriage should be dissolved for the common betterment of both the spouses.

Judgement: In our considered view, looking to the peculiar facts of the case, the High Court was not justified in setting aside the order of the Trial Court. In our opinion, wisdom lies in accepting the pragmatic reality of life and take a decision which would ultimately be conducive in the interest of both the parties.

Consequently, we set aside the impugned judgment of the High Court and direct that the marriage between the parties should be dissolved according to the provisions of the Hindu Marriage Act, 1955. In the extra-ordinary facts and circumstances of the case, to resolve the problem in the interest of all concerned, while dissolving the marriage between the parties, we direct the husband to pay Rs.25,00,000/- (Rupees Twenty five lacs) to the wife towards permanent maintenance to be paid within eight weeks. This amount would include Rs.5,00,000/- (Rupees five lacs with interest) deposited by the husband on the direction of the Trial Court. The wife would be at liberty to withdraw this amount with interest. Therefore, now the husband would pay only Rs.20,00,000/- (Rupees Twenty lacs) to the wife within the stipulated period. In case the husband fails to pay the amount as indicated above within the stipulated period, the direction given by us would be of no avail and the appeal shall stand dismissed. In awarding permanent maintenance we have taken into consideration the financial standing of the husband.

Before we part with this case, on the consideration of the totality of facts, this Court would like to recommend the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. A copy of this judgment be sent to the Secretary, Ministry of Law & Justice, Department of Legal Affairs, Government of India for taking appropriate steps.

The appeal is accordingly disposed of. In the facts and circumstances of the case we direct the parties to bear their own costs.

Irretrievable Breakdown Of Marriage
This means the couple can no longer live together as man and wife. Both partners, and one partner, must prove to the court that the marriage broke down so badly that there is no reasonable chance of getting back together.

The  laws in India regarding the issue of divorce had not recognized a situation where the spouses are facing a situation that despite the fact that they live under the same roof, their marriage is equivalent to a separation. That is, there is still no codified law for irretrievable breakdown of marriage.

 The Marriage Laws (Amendment) Bill 2010 was approved by the Union Cabinet The amendment makes it possible for anyone to seek divorce by proving that there has been "irretrievable breakdown of marriage" .
The Bill provides for amendment of the Hindu Marriage Act 1955 and the Special Marriage Act 1954. The Bill would provide safeguards to parties to marriage who file petition for grant of divorce by consent from the "harassment" in court if any of the party does not come to the court or wilfully avoids the court to keep the divorce proceedings inconclusive.

The amendment bill has been prepared on the recommendations of the Law Commission as well as the Supreme Court that "irretrievable breakdown of marriage" should be incorporated as another ground for grant of divorce. The new clause will be in addition to the existing grounds for divorce include adultery, cruelty, desertion, conversion to another religion, unsoundness of mind, virulent and incurable form of leprosy, venereal disease in a communicable form, renouncement of the world and not heard as being alive for a period of seven years.
.

Demerits of the theory
The Law Commission Of India in chapter 4 of the 71st report has dealt in detail the demerits of the irretrievable breakdown theory. The two main oppositions discussed in the report are as follows:

(i) It will make divorce easy. It will allow the spouses or even to any one of the spouse to dissolve the marriage out of their own pleasure.

(ii) It will allow the guilty spouse to take the advantage of his own fault by getting separated and dissolving the marriage.
In Chetan Dass vs. Kamla Devi reported in (2001) 4 SCC 250 , this Court observed that the matrimonial matters have to be basically decided on its facts. In the words of the Court:

"Matrimonial matters are matters of                           

delicate human and emotional

relationship. It demands mutual

trust, regard, respect, love and

affection with sufficient play for

reasonable adjustments with the

spouse. The relationship has to

conform to the social norms as well. The matrimonial conduct has now

come to be governed by statute

framed, keeping in view such norms

and changed social order. It is

sought to be controlled in the

interest of the individuals as well as in broader perspective, for

regulating matrimonial norms for

making of a well-knit, healthy and

not a disturbed and porous society.

The institution of marriage occupies an important place and role to play

in the society, in general. Therefore, it would not be appropriate to apply any submission of "irretrievably

broken marriage" as a straitjacket

formula for grant of relief of divorce. This aspect has to be considered in

the background of the other facts

and circumstances of the case."

In Sandhya Rani vs. Kalyanram Narayanan reported in (1994) Supp. 2 SCC 588, this Court reiterated and took the view that since the parties are living separately for the last more than three years, we have no doubt in our mind that the marriage between the parties has irretrievably broken down. There is no chance whatsoever of their coming together. Therefore, the Court granted the decree of divorce.

In the case of Chandrakala Menon vs. Vipin Menon reported in (1993) 2 SCC 6, the parties had been living separately for so many years. This Court came to the conclusion that there is no scope of settlement between them because, according to the observation of this Court, the marriage has irretrievably broken down and there is no chance of their coming together. This Court granted decree of divorce.

In the case of Kanchan Devi vs. Promod Kumar Mittal reported in (1996) 8 SCC 90, the parties were living separately for more than 10 years and the Court came to the conclusion that the marriage between the parties had to be irretrievably broken down and there was no possibility of reconciliation and therefore the Court directed that the marriage between the parties stands dissolved by a decree of divorce.

In Swati Verma vs. Rajan Verma reported in (2004) 1 SCC 123, a large number of criminal cases had been filed by the petitioner against the wife. This Court observed that the marriage between the parties had broken down irretrievably with a view to restore good relationship and to put a quietus to all litigations between the parties and not to leave any room for future litigation, so that they may live peacefully hereafter, and on the request of the parties, in exercise of the power vested in this Court under Article 142 of the Constitution of India, the Court allowed the application for divorce by mutual consent filed before it under Section 13-B of the Hindu Marriage Act and declared the marriage dissolved and granted decree of divorce by mutual consent. In Prakash Chand Sharma vs. Vimlesh [1995 Supp (4) SCC 642], the wife expressed her will to go and live with the husband notwithstanding the presence of the other woman but the husband was not in a position to agree presumably because he has changed his position by remarriage. Be that as it may, a reconciliation was not possible.

In V. Bhagat v. D. Bhagat (supra), this Court while allowing the marriage to dissolve on ground of mental cruelty and in view of the irretrievable breakdown of marriage and the peculiar circumstances of the case, held that the allegations of adultery against the wife were not proved thereby vindicating her honour and character. This Court while exploring the other alternative observed that the divorce petition has been pending for more than 8 years and a good part of the lives of both the parties has been consumed in this litigation and yet, the end is not in sight and that the allegations made against each other in the petition and the counter by the parties will go to show that living together is out of question and rapprochement is not in the realm of possibility. This Court also observed in the concluding part of the judgment that:

"Before parting with this case, we

think it necessary to append a

clarification. Merely because there

are allegations and counter

allegations, a decree of divorce

cannot follow. Nor is mere delay in

disposal of the divorce proceedings

by itself a ground. There must be

really some extra- ordinary features to warrant grant of divorce on the

basis of pleading (and other

admitted material) without a full

trial. Irretrievable breakdown of the marriage is not a ground by itself.

But while scrutinising the evidence

on record to determine whether the

ground(s) alleged is/are made out

and in determining the relief to be

granted, the said circumstance can

certainly be borne in mind. The

unusual step as the one taken by us

herein can be resorted to only to

clear up an insoluable mess, when

the Court finds it in the interest of both parties."

Own findings

various grounds for dissolution of marriage by a decree of divorce are laid down in section 13 of the Hindu Marriage Act, 1955. The grounds inter alia include adultery, cruelty, desertion, conversion to another religion, unsoundness of mind, virulent and incurable form of leprosy, venereal disease in a communicable form. we find that seeking a divorce in case marriage goes bad will now become easier with the approval of Marriage Laws (Amendment) Bill 2010 by the Union Cabine. The amendment makes it possible for anyone to seek divorce by proving that there has been “irretrievable breakdown of marriage” and escape the delays and “harassment” caused because of one party not turning up in courts or willfully avoids the court to keep the divorce proceedings inconclusive.